Category: Reconsideration

J.T. v. TD General Insurance Company (19-003389)

The claimant filed a request for reconsideration to dispute the finding that he was not entitled to interest, an award, or costs related to an approved treatment plan. The request for reconsideration was denied. Adjudicator Grant found that the LAT had not made a significant error of fact or law in the hearing decision. He agreed that there was no evidence of an agreement between the claimant and the insurer that the insurer would reimburse the claimant for documents produced, and section 33 does not require an insurer to compensate an insured for producing information reasonably required to assist the insurer in determining entitlement to a benefit. Adjudicator Grant found that there was no evidence that the insurer did not pay the approved benefit within the time limit prescribed in the SABS, and without such evidence, no interest can be payable.

P.W. v. Aviva Insurance Canada (18-000854)

Both the claimant and the insurer sought reconsideration of the Tribunal’s decision which found that the claimant was not entitled to an income replacement benefit but was entitled to an examination expense for an attendant care assessment. Adjudicator Gosio dismissed the claimant’s request for reconsideration, but granted the insurer’s request for reconsideration by ordering that the issue of the attendant care assessment be reheard. The adjudicator’s finding with respect to the attendant care assessment was based on an argument that was not raised by either of the parties in their submissions (the applicability of section 25(1)4 of the SABS), and Adjudicator Gosio agreed that the obligation is on the claimant to make their own case, rather than the insurer having to disprove the claim. However, he noted that the appropriate remedy in this case was not to vary the decision as requested by the insurer, but rather to invite both parties to make submissions on the applicability of section 25(1)4 of the SABS.

P.W. v. Aviva Insurance Canada (18-000854)

Both the claimant and the insurer sought reconsideration of the Tribunal’s decision which found that the claimant was not entitled to an income replacement benefit but was entitled to an examination expense for an attendant care assessment. Adjudicator Gosio dismissed the claimant’s request for reconsideration, but granted the insurer’s request for reconsideration by ordering that the issue of the attendant care assessment be reheard. The adjudicator’s finding with respect to the attendant care assessment was based on an argument that was not raised by either of the parties in their submissions (the applicability of section 25(1)4 of the SABS), and Adjudicator Gosio agreed that the obligation is on the claimant to make their own case, rather than the insurer having to disprove the claim. However, he noted that the appropriate remedy in this case was not to vary the decision as requested by the insurer, but rather to invite both parties to make submissions on the applicability of section 25(1)4 of the SABS.

W.A. v. Aviva General Insurance (19-000287)

The claimant sought reconsideration of the Tribunal’s decision denying his entitlement to income replacement benefits. Vice Chair Farlam dismissed the claimant’s reconsideration request, noting that reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing. Vice Chair Farm reviewed the decision, and was satisfied that the totality of the medical evidence was considered and reasonable conclusions were reached based on the evidence as a whole, including credibility problems inherent in the evidence. Vice Chair Farlam also noted that all “new evidence” relied upon by the claimant on reconsideration existed and could have been obtained prior to the hearing.

B.D. v Aviva General Insurance (18-010618)

The claimant asked for a reconsideration of part of the Tribunal’s decision regarding the denial of an orthopaedic assessment. Vice Chair Farlam was satisfied that the decision did not contain any errors of law or fact. Having accepted some of the evidence in the orthopaedic assessment did not obligate the adjudicator to find that the cost of it was reasonable and necessary. Vice Chair Farlam held that there was a distinction between finding that the claimant sustained the impairments in question apart from finding that proposed treatment was reasonable and necessary. The claimant’s suggestion that the orthopaedic assessment was a key part of the Decision which allowed three other treatment plans to be awarded, and that but for the orthopaedic assessment the decision would not have been reached, was speculation and did not establish ground for reconsideration. The claimant also argued that the adjudicator made a significant error of law or fact in failing to find that she was entitled to the cost of the orthopaedic assessment because she never received a denial notice from the insurer. However, the evidence before the Vice Chair was that the claimant did receive an appropriate denial and the date of denial of all treatment plans and examinations were agreed upon prior to the hearing. The claimant also suggested that a negative inference should be drawn against the insurer for not providing the accident benefits file and that the notice of examination was deficient. Vice Chair Farlam held that reconsideration was not an opportunity to raise new and different arguments not made at the hearing. The reconsideration was dismissed.

W.A. v. Aviva General Insurance (19-000287)

The claimant sought reconsideration of the Tribunal’s decision denying his entitlement to income replacement benefits. Vice Chair Farlam dismissed the claimant’s reconsideration request, noting that reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing. Vice Chair Farm reviewed the decision, and was satisfied that the totality of the medical evidence was considered and reasonable conclusions were reached based on the evidence as a whole, including credibility problems inherent in the evidence. Vice Chair Farlam also noted that all “new evidence” relied upon by the claimant on reconsideration existed and could have been obtained prior to the hearing.

L.D. v. Gore Mutual Insurance Company (17-002762)

The claimant brought two motions: (1) that Vice-Chair Flude recuse himself from making a decision that he already made on May 27, 2020; and (2) that he then reconsider the same decision. Claimant’s counsel had previous requested that Vice-Chair Flude recuse himself, alleging bias stemming from a comment that was interpreted to be insensitive, for which Vice-Chair Flude apologized for. The claimant also alleged bias over a dismissed motion to compel, which Vice-Chair Flude found moot as the witness had answered the questions she was Ordered to on the day of her cross-examination. The insurer raised issues with the timing of the claimant’s recusal motion, noting that the impugned instances occurred in 2018, but it was not until the claimant received the first unfavorable decision and the motions were then brought some seven months later. The claimant further alleged that it was improper for Vice-Chair Flude to request submissions on costs as neither party had requested them. Vice-Chair Flude noted that the insurer’s materials filed on the motion to strike did request costs. Vice-Chair Flude denied both of the claimant’s requests and gave the claimant 14 days to submit pleadings regarding costs as the insurer had already filed its materials.

L.D. v. Gore Mutual Insurance Company (17-002762)

The claimant brought two motions: (1) that Vice-Chair Flude recuse himself from making a decision that he already made on May 27, 2020; and (2) that he then reconsider the same decision. Claimant’s counsel had previous requested that Vice-Chair Flude recuse himself, alleging bias stemming from a comment that was interpreted to be insensitive, for which Vice-Chair Flude apologized for. The claimant also alleged bias over a dismissed motion to compel, which Vice-Chair Flude found moot as the witness had answered the questions she was Ordered to on the day of her cross-examination. The insurer raised issues with the timing of the claimant’s recusal motion, noting that the impugned instances occurred in 2018, but it was not until the claimant received the first unfavorable decision and the motions were then brought some seven months later. The claimant further alleged that it was improper for Vice-Chair Flude to request submissions on costs as neither party had requested them. Vice-Chair Flude noted that the insurer’s materials filed on the motion to strike did request costs. Vice-Chair Flude denied both of the claimant’s requests and gave the claimant 14 days to submit pleadings regarding costs as the insurer had already filed its materials.

Y.D. v. Certas Home and Auto Insurance Company (18-003066)

The claimant requested reconsideration of a previous Tribunal decision denying the cost of CAT assessments in the amount of $24,400. The claimant argued that the Tribunal violated the rules of procedural fairness by failing to properly address the initial submissions and failed to assess crucial evidence. The claimant was represented by two lawyers who both worked from the same law office. The claimant noted that the Tribunal only named the main counsel on file and not the second lawyer who filed the original pleadings with the Tribunal, and thus did not consider those submissions. Vice Chair McQuaid dismissed the argument, noting that a minor error such as the one pointed out by the claimant was “a minor or inconsequential mistake.” She further noted that the previous decision denying the benefits quoted the initial submissions, and thus they were in fact taken into consideration; furthermore the claimant’s reconsideration pleadings noted evidence regarding causation, a fact that had already been considered by the Tribunal in the initial decision. Vice Chair McQuaid concluded that the Tribunal had weighed the evidence properly in the previous decision and that the claimant was attempting to re-argue her case. The request for reconsideration was denied.

Y.D. v. Certas Home and Auto Insurance Company (18-003066)

The claimant requested reconsideration of a previous Tribunal decision denying the cost of CAT assessments in the amount of $24,400. The claimant argued that the Tribunal violated the rules of procedural fairness by failing to properly address the initial submissions and failed to assess crucial evidence. The claimant was represented by two lawyers who both worked from the same law office. The claimant noted that the Tribunal only named the main counsel on file and not the second lawyer who filed the original pleadings with the Tribunal, and thus did not consider those submissions. Vice Chair McQuaid dismissed the argument, noting that a minor error such as the one pointed out by the claimant was “a minor or inconsequential mistake.” She further noted that the previous decision denying the benefits quoted the initial submissions, and thus they were in fact taken into consideration; furthermore the claimant’s reconsideration pleadings noted evidence regarding causation, a fact that had already been considered by the Tribunal in the initial decision. Vice Chair McQuaid concluded that the Tribunal had weighed the evidence properly in the previous decision and that the claimant was attempting to re-argue her case. The request for reconsideration was denied.