Alexandra Swire v. Zenith Insurance Company, 2025 CanLII 111757

RECONSIDERATION DECISION

Before: Craig Mazerolle, Vice-Chair

Licence Appeal Tribunal File Number: 23-009587/AABS

Case Name: Alexandra Swire v. Zenith Insurance Company

Written Submissions by:

For the Applicant: Julie Kern, Counsel

For the Respondent: Michelle Qiu, Counsel

OVERVIEW

1On July 2, 2025, the applicant requested reconsideration of the Tribunal’s decision released June 10, 2025 (“decision”).

2Stemming from an accident on July 20, 2019 and a request for benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”), the parties participated in a five-day videoconference hearing. In the resulting decision, the adjudicator found the applicant did not demonstrate she was catastrophically impaired based on Criterion 8. Briefly, the applicant argued that she sustained a marked impairment in three of the four domains of human activity from the AMA Guides. With three marked impairments needed to be deemed catastrophically impaired, the adjudicator concluded that her claim was not successful as she did not demonstrate a marked impairment in one of the three disputed domains, i.e., Activities of Daily Living (“ADL”).

3The adjudicator further found the applicant was not entitled to any of the treatment plans, an award, or interest.

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.

5The applicant relies on Rule 18.2(a) and Rule 18.2(b) to support her request for reconsideration. She is seeking an order finding she is catastrophically impaired, or, in the alternative, an order sending the matter to a “fresh Hearing”.

6The respondent asks the Tribunal to dismiss the request.

RESULT

7The applicant’s request for reconsideration is granted.

8Pursuant to Rule 18.4, the decision is cancelled. A rehearing shall take place to address the substantive issues in the applicant’s application. The rehearing will be conducted by a new adjudicator reviewing the existing record.

ANALYSIS

9The 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 must show how or why the decision falls into one of the categories in Rule 18.2.

Rule 18.2(a) – Material Breach of Procedural Fairness

10By demonstrating that the Tribunal provided insufficient reasons to justify the denial of the issues in dispute, I find the applicant has established grounds for reconsideration, pursuant to Rule 18.2(a). Due to this finding, it is not necessary for me to consider the other grounds for reconsideration.

11My focus is on the applicant’s argument that the adjudicator engaged in “an incomplete and insufficient evidentiary review to allow for a proper analysis of the Applicant’s Criterion 8 entitlement”. Citing the Divisional Court’s disapproval of “brief and frequently conclusory” reasons in another Tribunal proceeding, i.e., Luluquisin v. Aviva Insurance Co. of Canada, 2024 ONSC 5369, at paragraph 2 (“Luluquisin”), the applicant claims the present decision is “unsubstantiated”.

12As noted by the Supreme Court of Canada at paragraph 79 in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, reasons ensure the fairness and legitimacy of administrative decision-making (citations removed):

Reasons explain how and why a decision was made. They help to show affected parties that their arguments have been considered and demonstrate that the decision was made in a fair and lawful manner. Reasons shield against arbitrariness as well as the perception of arbitrariness in the exercise of public power.

13Further, as the Supreme Court stated at paragraph 39 in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC) (“Baker”), reasons allow decisions to be questioned: “Reasons are invaluable if a decision is to be appealed, questioned, or considered on judicial review”.

14With these principles in mind, I do not find the adjudicator provided sufficient reasons to explain why he denied the issues in dispute.

15As the Supreme Court stated in Baker, the level of procedural fairness necessary for any given dispute is a highly contextual determination. Factors, like the legitimate expectations of the parties and the nature of the statutory scheme, are weighed when assessing the relative level of procedural safeguards needed to uphold a party’s right to procedural fairness.

16In this case, I place significant weight on the Baker factor involving the importance of the decision to the individual affected, namely, the applicant and her request for a catastrophic level of benefits. As one of the most consequential determinations that the Tribunal can render under the Schedule, it was imperative for the adjudicator to ensure there was a comprehensive explanation for why the applicant was denied this level of benefits. Similarly, the treatment plans being disputed addressed both her psychological and physical health. In light of the importance of these determinations to the applicant’s well-being, I find the reasons are insufficient to explain the denial of the issues in dispute.

17After laying out a few details about the assessments relied upon by the parties for the ADL domain, the adjudicator explained his preference for the respondent’s expert evidence—including its psychological assessor, Dr. Christopher Hope—at paragraph 21 of the decision:

I prefer the evidence and testimony of the respondent. The assessments done by the respondent were far more comprehensive. I am not persuaded that the applicant has met their onus proving that they suffer from a marked impairment in the sphere of Activities of Daily Living. The evidence shows that the applicant does not suffer from any cognitive impairments, nor does she struggle with completing normal tasks in life. I also accept the evidence of Dr. Hope that the testing of the applicant should be deemed to be invalid due to a negative response bias.

18As the reviewing adjudicator, I am unable to determine how the hearing adjudicator reached his conclusions regarding this key aspect of this issue. For instance, aside from describing a few details about the assessments at paragraphs 17 – 20 (e.g., the length of the assessment sessions), there is no fulsome explanation for why the hearing adjudicator concluded the respondent’s assessments “were far more comprehensive”. Further, though the adjudicator highlighted at paragraph 20 that Dr. Hope “found no evidence that the applicant was cognitively impaired”, he did not then explain why he accepted this conclusion. There is also no detailed list of the “normal tasks in life” that the adjudicator found the applicant could complete. This last point is especially pertinent to the ADL domain, as the AMA Guides require consideration of activities such as self-care, personal hygiene, communication, sleep, social activities, etc. in this domain.

19Similarly sparse reasons were provided to explain the denial of the treatment plans. After detailing the parties’ evidence, the adjudicator described why he did not find the applicant met her evidentiary burden for these plans at paragraph 27:

The evidence presented to the Tribunal show that the applicant significantly benefited from the treatment that she received. While the applicant does show to a reasonable degree what the goals of the treatment plans are, they have not been able to show that the treatment plans in dispute are reasonable and necessary. Based on the evidence presented to the Tribunal my conclusion is that the applicant has reached maximum medical recovery and therefore there is no justification to award the applicant any of the treatment plans or the assessment plan in dispute.

20With no clear explanation of what “evidence presented to the Tribunal” allowed him to conclude the applicant had reached maximum medical recovery, I find these reasons do not provide a detailed rationale for denying the treatment plans. Much like Luluquisin, these reasons are brief and largely conclusory in nature. This lack of detail is especially important as there was apparently evidence that showed the applicant “significantly benefited from the treatment that she received.”

21Finally, though one of the issues listed at paragraph 7 is an invoice for attendant care services, there is no clear denial of this invoice in the decision.

22Turning to the respondent’s arguments on reconsideration, I do not find they challenge my conclusions. According to the respondent, the applicant had the opportunity to present her arguments and evidence during the hearing, and re-litigation is not the purpose of reconsideration. The respondent then contends that the adjudicator clearly explained his reasoning about catastrophic impairment, including his weighing of the parties’ evidence. As such, this case is distinguishable from Luluquisin. Moreover, the respondent highlights the standard for adequate reasons from Murphy v. Murphy, 2013 ONSC 7015, claiming that the adjudicator provided reasons that “established a logical connection between the evidence and the law on the one hand, and the decision on the other”. Finally, the respondent adds that there is no obligation on the Tribunal to list every piece of evidence.

23To start, I find the applicant is not seeking to have her arguments and evidence re-litigated on reconsideration. Rather, she is asking for a comprehensive explanation for why her case did not meet the evidentiary burden.

24In a similar vein, I do not find the applicant is asking for every piece of evidence from the hearing to be detailed in the decision. I recognize that decision-makers do not need to reference every piece of evidence and argument from the parties. However, in the case at hand, the applicant has demonstrated that there was an insufficient engagement with the evidentiary record in the decision.

25Finally, though the respondent may claim Luluquisin is distinguishable due to the “logical connection” drawn by the adjudicator in this present decision, I do not agree. As detailed above, the adjudicator’s reasons fall short of the detail expected for a case involving such important determinations. For instance, there are few reasons given for why the respondent’s expert evidence was preferred over the applicant’s evidence, and there is no detailed accounting of the different kinds of activities captured under the ADL domain. Overall, I do not find there is a “logical connection” drawn between the parties’ evidence and arguments on the one hand and the adjudicator’s conclusions on the other.

26Taken together, the applicant has established a material breach of procedural fairness, pursuant to Rule 18.2(a).

Rule 18.4 – Cancelling the Decision

27The applicant has established a ground for reconsideration under Rule 18.2, so I must now determine what the appropriate remedy is under Rule 18.4.

28In her reconsideration submissions, the applicant asks the Tribunal to issue an order finding she is catastrophically impaired. Though she accepts a “fresh Hearing” as a potential alternative remedy, the applicant contends that she is a vulnerable individual who does not have access to the financial resources needed to “fund protracted litigation”. Specifically, the applicant highlights her accident-related impairments, pre-accident health, and identity as an indigenous person to support her claim that she is a “particularly vulnerable member of society”.

29The respondent did not address this part of the applicant’s reconsideration submissions in its response.

30I find I am unable to make such a consequential ruling as a determination of catastrophic impairment based on the records and conclusory reasons before me. Instead, I find the only appropriate remedy under Rule 18.4 is to cancel the decision and order a rehearing of the substantive issues.

31However, I am also satisfied that sending the dispute to a new videoconference hearing would frustrate the consumer protection mandate of the Schedule by requiring a particularly vulnerable applicant to present the same evidence she relied on during the initial hearing. Instead, I am ordering a different adjudicator to consider the transcript and/or recording from the initial hearing, as well as the exhibits, to render a decision on the substantive issues in the applicant’s application. I find this remedy is an appropriate balance between the applicant’s vulnerability and the need to ensure that these important issues are decided in a fair and open manner. I also find this remedy is squarely focused on addressing the breach established above, i.e., the inadequacy of the reasons.

CONCLUSION & ORDER

32The applicant’s request for reconsideration is granted.

33Pursuant to Rule 18.4, the decision is cancelled. A rehearing shall take place to address the substantive issues in the applicant’s application.

34The rehearing will be conducted by a new adjudicator reviewing the existing record, i.e., the recording and/or transcript of the hearing, as well as the exhibits from the initial hearing.

35The party who brought the court reporter to the initial hearing shall provide the other party and the Tribunal with a copy of the recording and/or transcript of the hearing within 30 days of the release of this decision.

36I am not seized.

Craig Mazerolle Vice-Chair Tribunals Ontario – Licence Appeal Tribunal