This reconsideration decision stems from the Applicant requesting reconsideration of the Tribunal’s April 26, 2023 decision. Among other things, the Applicant alleged that the Tribunal erred in law by interpreting s. 42 of the SABS as preventing the submission of a new Form 1 for attendant care because less than 52 weeks had passed since the previous Form 1s were submitted by each party, without first giving the parties an opportunity to make submissions on that issue. The Applicant argued that the Tribunal misinterpreted s. 42 of the Schedule, citing S.M. v. Unica Insurance, 2020 CanLII 12718, for the proposition that a new Form 1 may be submitted at any time if there is a change that results in an increased benefit. The Applicant submitted that it is inconsistent with the purpose of the SABS and ACBs to prevent someone with a deteriorating medical condition from submitting a new assessment within 52 weeks of the last one. However, at paragraphs 33–34 of the decision, the Tribunal expressly rejected this argument. It noted that S.M. v. Unica had been overturned and clarified by Malitskiy v. Unica Insurance Inc., 2021 ONSC 4603, where the Divisional Court confirmed that s. 42(12) of the SABS prohibits the submission of a new Form 1 within 52 weeks unless the change is significant enough to warrant consideration of the new Form 1. At paragraph 34, the Tribunal further clarified that the second Form 1 was not excluded from evidence and was, in fact, a live issue during the hearing. The parties had a full opportunity to address its admissibility and the applicability of s. 42(12) during testimony and submissions. The Tribunal specifically referenced questioning of the insurer’s witness regarding s. 42(12), and found that the Applicant’s counsel was well aware of and engaged with the issue. Ultimately, the Tribunal found no error in law, no procedural unfairness, and that its interpretation of the SABS aligned with binding precedent. The reconsideration request was dismissed.
