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[Special Edition] Volume. 5 Issue. 5 – January 28, 2021

Catching up? Read our latest blog on LAT – Inconsistency & The Price Paid!

Welcome to our special edition LAT inFORMER on the Tribunal’s practice of having adjudicators hear their own reconsiderations with a focus on recent cases and potential implications!

inHEALTH’s LAT Compendium added 861 decisions in 2020, 120 of which are reconsiderations, a decrease from 168 from 2019. To date, the success rate for reconsiderations stands at 27%.

The success rate for “own recons” stands at 11%, whereas recons heard by another member are successful at 35%.

In Trending – Adjudicator Own Recons – Personal & Institutional Bias

Adjudicator “own recons” are impacting the percentage of decisions upheld, raising the question of reasonable apprehension of bias. We begin with a decision wherein the Tribunal set out its position on “reasonable apprehension of basis”.

No Right to Recon – In E.C. v Northbridge (18-006384), released October 21, 2020, E.C. submitted that the practice of “own recon” raises “an apprehension of personal and institutional bias.” It was the position of E.C. that “a reasonable, informed person would not think that he or she will get a fair hearing from the same person who dismissed his or her case initially.”

Dismissing this argument and upholding the original decision, the Tribunal largely relied upon Landau v. Ontario (Minister of Finance) wherein it was noted that “the mere fact that an adjudicator determines a request for reconsideration of his or her own decision does not, in and of itself, create a reasonable apprehension of bias in the context of this legislative scheme.” The Divisional Court further noted that “there is no right to have a decision reconsidered. Under s.45.7(2) of the Code ‘the Tribunal may reconsider its decision’ but is not bound to do so. The original decision maker may be in the best position to know whether a reconsideration request raises new issues or submissions.”

Concluding, the Tribunal noted that E.C. “has not established anything more than that I am reviewing my own decision. There is no evidence of a breach of procedural fairness on this basis, nor is there any evidence of bias or a reasonable apprehension of bias.”

The following case is an example of what could be considered an appropriate exercise of “own recon”:

No Absurd Windfall – In N.P. v Wawanesa (18-010628), the Tribunal reconsidered its own decision regarding the interpretation of s.38(11) when an insurer fails to comply with the notice provisions of s.38(8) of the Schedule. In the original decision, the Tribunal found no monies were payable as there was no evidence of N.P. having incurred any services on the 11th day or thereafter.

N.P. submitted that “the phrase ‘described’ in section 38(11) does not require the applicant to incur the goods and services” and that “different language would have been used had there been a requirement to incur the goods and services.” The Tribunal however found, “While section 38(11)(2) fails to expressly state that the goods and services must be incurred, the reference in the section to a time period implies so. Otherwise, there would be no need to refer to a time period – the legislation would state that the entirety of the treatment plan is payable starting on the 11th business day.”

The purpose of s.38(11) was confirmed “to ensure that insurers respond to treatment and assessment plans in a timely manner…(and) is punitive to insurers in that it permits the insured to incur unapproved, and possibly not reasonable and necessary, medical benefits as a result of the insurer’s untimely response.” N.P.’s interpretation was said to lead to an “absurd result”, as “a potential service provider receives a financial windfall from an insurer’s failure to comply with the time constraints of the Schedule, and the insured is left without treatment. Punitive measures in the Schedule are meant to benefit the insured person – not a potential service provider – to the detriment of the insurer.”

Conversely, what follows are two potential examples of own recons that may have benefited from a different set of eyes:

Not Going to Repeat Myself – Earlier we highlighted Landa v Dominion (19-011699), querying whether a self-represented Applicant received a fair hearing before the Tribunal. Now, the adjudicator, hearing its own reconsideration, essentially doubled down on the earlier ruling. Of note, in the original decision, the Tribunal indicated that Landa “mistakenly conflates the legal requirements for a valid denial with the substantive legal requirements for denying a benefit…”. This despite a considerable body of LAT jurisprudence extending limitation based upon insufficient denial notices. In the reconsideration, the Tribunal, rather than providing further clarification, opts to refer to the paragraphs in the prior decision for the rationale.

The Tribunal then quoted an oft-repeated refrain, to wit that “The rules of procedural fairness make no requirement that a tribunal comment on each and every case relied upon by a party to a dispute or that it deals with every submission in its reasons for decision.” Further, that “a requirement for reasons of the nature described by the applicant would considerably hamper the Tribunal’s ability to deliver on its mandate to deliver timely, cost-effective dispute resolution.”

Reference is then made to the Supreme Court of Canada decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, wherein it was noted that “Reviewing courts cannot expect administrative decision makers to ‘respond to every argument or line of possible analysis’ (Newfoundland Nurses, at para. 25)…To impose such expectations would have a paralyzing effect on the proper functioning of administrative bodies and would needlessly compromise important values such as efficiency and access to justice.” Concluding, the Tribunal indicated, “All that is required is for the decision maker to meaningfully grapple with key issues and arguments raised by the parties and demonstrate that the decision-maker was alert and sensitive to the matter before him or her.”

Finally, in Jones v Aviva (19-013768), previously discussed wherein the Tribunal invalidated the Respondent’s denial, based upon the fact that an insurer “must deny a claimed benefit; in other words, an insurer’s denial of a benefit must relate to an existing claim.” We noted that the Schedule stipulates only “in respect of a benefit”. The Respondent argued that “the preliminary issue decision is subject to reconsideration under Rule 18 because it disposes of the issue raised by its limitation defence, thereby depriving it of a substantive right which could be determinative of the entire action.” The Tribunal however declined to reconsider this matter, determining same to be interlocutory in nature.

The Tribunal then indicated, “The preliminary issue decision does not deprive [the Respondent] of a substantive right that could be determinative of the entire application.” This was premised upon the fact that the Respondent still had available “a defence on the basis of provisions of the Schedule that delimit the time period for claiming a non-earner benefit.” The Court, while confirming the principle against interlocutory appeals in administrative law, determined in Higashi v Western Assurance (18-009498), regarding an IRB limitation matter, that “one party has been finally prevented from proceeding with an appeal respecting IRBs.” Although were the Respondent to be successful in their reconsideration, this matter would in fact have been finally disposed of, the Tribunal in this instance decided not to exercise discretion in that direction.

The cases reported posit whether there needs to be an added measure of discretion invoked in determining which decisions are better reconsidered by another member, to ensure a more fulsome review? This is especially so in light of the dramatic difference in reconsiderations heard by other members as opposed to the “own recons”

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