RECONSIDERATION DECISION
Before: Timothy Porter, Adjudicator
Licence Appeal Tribunal File Number: 23-015245/AABS
Case Name: Ilir Loka v. TD General Insurance Company
Written Submissions by:
For the Applicant: Ilir Loka, Applicant
For the Respondent: Nathan Tischler, Counsel
OVERVIEW
1On May 20, 2025, the applicant requested reconsideration of the Tribunal’s decision dated April 2, 2025 (“decision”).
2A videoconference hearing was held from November 12-14, 2024. The resulting decision communicated my finding that the applicant had not met his onus and remained within the Minor Injury Guideline, and therefore, was not entitled to four treatment/assessments plans. I further found that the applicant was not eligible for an income replacement benefit (“IRB”) due to non-compliance with s. 33 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Finally, I concluded that no award or interest were due, nor was the respondent entitled to costs.
3The applicant was represented by counsel during the hearing and is now self-representing.
4The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness.
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or
c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
5Relying on all three criteria under Rule 18.2, the applicant submits that the Tribunal muted the applicant such that he could not cross-examine a witness, admitted surveillance evidence, preferred the evidence of the respondent, that the applicant’s evidence was not properly considered and that there is new evidence in the form of a report from Adriana Dragoi, occupational therapist (“OT”).
6On September 25, 2025, The applicant, subsequent to the reconsideration request, filed a motion with additional new evidence to be heard including resubmission of a report by Dr. Mohamed Khaled, MD, the respondent’s correspondence denying IRB benefits from September 17, 2024 along with appended reports from Dr. Riaz Moolla, MD, Brent Souter, chiropractor, Cynthia Kresak, certified vocational evaluator, Dr. Garry Moddel neurologist, and Dr. David Direnfeld, psychologist; a sworn statement regarding abandoned commercial trucks on his property, four x-ray images (without report), and a self-completed whole person impairment report.
7The respondent submits that the applicant’s request does not satisfy any of the criteria set out in Rule 18.2 for granting a reconsideration of the decision because the applicant was represented and the representative conducted cross-examination of witnesses, it is well settled that an insurer can conduct and rely on surveillance evidence in accident benefits cases, reconsideration is not a time to ask for evidence to be reweighed, and the report by Adriana Dragoi, OT was already in the evidence of the hearing.
8The applicant seeks to have the decision set aside and a fresh hearing be convened to rehear the dispute.
RESULT
9The applicant has not established grounds for reconsideration on any of the basis set out in Rule 18.2.
10The applicant’s request for reconsideration is dismissed.
11The respondent’s motion to strike new evidence from the applicant’s submissions is dismissed as moot.
ANALYSIS
12The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor—in this case, the applicant—must show how or why the decision falls into one of the categories in Rule 18.2.
Rule 18.2(a) – The Tribunal did not commit a material breach of procedural fairness.
13I find that the applicant has not established grounds for reconsideration on the basis that the Tribunal committed a material breach of procedural fairness.
14The applicant submits that I committed a material breach of procedural fairness because he was muted by Zoom during the hearing and could not conduct a cross-examination of the respondent’s witnesses. He cites the United Nations Universal Declaration of Human Rights (“UNUDHR”), the Charter of Rights and Freedoms (“Charter”), and he further suggests that surveillance evidence and the overall handling of the insurance contract by the respondent is a breach of the Human Rights Code, RSO 1990, c H.19.
15The respondent submits that the applicant had a representative who could and did conduct the hearing on his behalf; he does not identify how a failure to consider the UNUDHR or Charter resulted in a material breach of procedural fairness and reminds that the Tribunal has held that surveillance can legitimately be conducted by an accident benefits insurer.
16I find that the applicant was not muted by the adjudicator during the hearing. At the beginning of the hearing, I relayed my expectations for the hearing which included a recommendation that all participants, except for counsel, should mute themselves when not actively participating. However, at no time was a participant purposely or accidentally muted by me. The applicant’s representative entered evidence, called witnesses, and cross-examined the respondent’s witnesses. No issues with the ability to actively participate in the hearing were raised by any party during the hearing and no evidence has been produced to demonstrate any issues with the ability to participate.
17Further, no specific breach of the UNUDHR or Charter was identified in the applicant’s reconsideration submissions.
18Finally, it is well settled that an insurer may conduct surveillance for the purpose of collecting information or defending a dispute. I find that accepting surveillance as evidence in a hearing is not a breach of the Human Rights Code. In any case, I further note that the decision did not consider or incorporate any element of the respondent’s surveillance evidence.
19I find that the applicant has not established grounds for reconsideration on the basis that the Tribunal committed a material breach of procedural fairness.
Rule 18.2(b) – There was no error of law or fact.
20I find that the applicant has not established grounds for reconsideration on the basis that the Tribunal committed an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
21The applicant submits that I preferred the evidence presented on behalf of the respondent to the evidence that was presented by the applicant. He further argues that his IRB evidence was not properly considered.
22The respondent submits that any preference in evidence by the adjudicator does not amount to an error in law or fact. Then, regarding the IRB, the respondent submits that the applicant has not provided an explanation for his non-compliance with s. 33.
23As noted above, the threshold for reconsideration is a high bar. This is not an opportunity to re-argue the evidence tendered at the hearing, nor is it a chance to conduct a hearing de novo. The respondent’s evidence, except for material related to the applicant’s s. 33 non-compliance, was not utilized in reaching the decision. Rather, I found that the applicant’s evidence, testimony, and witnesses did not meet his legal onus of demonstrating that his injuries were not minor; I point to paragraphs [27], [28], [33], [34], [35], and [36] in support.
24Regarding the IRB, the applicant was found non-compliant with s. 33 of the Schedule. The applicant has not submitted that this is incorrect, and he did not explain the basis for his non-compliance during the hearing, nor in his reconsideration submissions such that it demonstrates that an error of law that would have affected the outcome was made.
25I find that the applicant has not established grounds for reconsideration on the basis that the Tribunal committed an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
Rule 18.2(c) – The applicant has not identified evidence that could not have been obtained previously.
26I find that the applicant has not established grounds for reconsideration on the basis that there is evidence that was not before the Tribunal when rendering its decision, which could not have been obtained previously by the applicant.
27The applicant submits that a report, issued April 15, 2024, by Adriana Dragoi, occupational therapist (“OT”), was not presented by his former representative at the hearing.
28The respondent points to the applicant’s document brief for the hearing, which includes the report by Ms. Dragoi, OT. It submits that there is no evidence which could not have been obtained previously.
29I find the report by Ms. Dragoi, OT, was in the hearing document brief of the applicant. The report was in the evidentiary record of the hearing, but the applicant’s counsel simply did not raise it or make specific submissions on it. Accordingly, it is not new evidence that was not before the Tribunal that was previously unavailable that would change the result.
30Similarly, from the motion submissions of the applicant, the reports by Dr. Mohamed Khaled, MD, Dr. Riaz Moolla, MD, Brent Souter, chiropractor, Cynthia Kresak, certified vocational evaluator, Dr. Garry Moddel neurologist, and Dr. David Direnfeld, psychologist, were all contained within the submissions of the respondent. I also note that these reports are related to the IRB dispute and were not relied on in my findings in the decision.
31The motion submissions offered by the applicant also contained a sworn statement regarding abandoned commercial trucks on his property, four x-ray images (without report), and a self-completed whole person impairment report. These documents were not in evidence at the hearing. However, there are no submissions as to why this evidence could not have been obtained previously or why it is relevant on reconsideration and therefore it is not admissible as evidence on reconsideration.
32I find that the applicant has not established grounds for reconsideration on the basis that there is evidence that was not before the Tribunal when rendering its decision, which could not have been obtained previously by the applicant.
CONCLUSION & ORDER
33The applicant has not established grounds for reconsideration on the basis that there was a material breach of procedural fairness. The applicant has not established that there was an error in fact or law; and the applicant has not established that there is evidence not before the Tribunal, that could not have been obtained previously, that would likely have affected the result.
34Given the outcome on reconsideration, the respondent’s motion to strike new evidence from the applicant’s submission is moot.
35The applicant’s request for reconsideration is dismissed.
Timothy Porter
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: October 24, 2025