Citation: Shafi v. Intact Insurance Company, 2025 ONLAT 23-001922/AABS-R

RECONSIDERATION DECISION

Before: Craig Mazerolle, Vice-Chair

Licence Appeal Tribunal File Number: 23-001922/AABS

Case Name: Rakeeya Shafi v. Intact Insurance Company

Written Submissions by:

For the Applicant: Mikolaj T Grodzki, Counsel

For the Respondent: Christine McKenna, Counsel

OVERVIEW

1On July 29, 2025, the applicant requested reconsideration of the Tribunal’s decision released July 14, 2025 (“decision”).

2Stemming from an accident on February 22, 2018 and a request for benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”), the parties participated in a written hearing. In the resulting decision, the adjudicator found the applicant had not sustained a catastrophic impairment, pursuant to Criterion 8. Briefly, the adjudicator found the applicant had not established an extreme (“Class 5”) impairment in the domain of adaptation to work and work-like settings (“Adaptation”). He further concluded that the applicant was not entitled to an award.

3The 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.

4The applicant relies on Rule 18.2(a) and Rule 18.2(b) to support her request for reconsideration. She is seeking an order to set aside the decision.

5The respondent asks the Tribunal to dismiss the request.

RESULT

6The applicant’s request for reconsideration is dismissed.

ANALYSIS

7The 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) – Procedural Fairness

8I find the applicant has not established a ground for reconsideration, pursuant to Rule 18.2(a).

9The applicant submits the adjudicator committed two material breaches of procedural fairness. First, she claims the adjudicator’s handling of the expert evidence from Dr. Bobbie Ross demonstrated a reasonable apprehension of bias. The applicant also alleges that the adjudicator’s choice not to review the respondent’s catastrophic impairment reports constituted a further breach of procedural fairness.

Reasonable Apprehension of Bias

10Starting with the claim of bias, I conclude the applicant has not met the high threshold needed to merit such a finding.

11The test for a reasonable apprehension of bias was set out by the Supreme Court of Canada in the oft-cited case of Committee for Justice and Liberty v. Canada, 1976 CanLII 2 (SCC) (“Committee for Justice and Liberty”), at p. 394:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

12In Wewaykum Indian Band v. Canada, 2003 S.C.R. 45, at paragraph 59, the Supreme Court confirmed the existence and importance of a strong presumption of judicial or quasi-judicial impartiality. To overcome this presumption, a party alleging actual bias or a reasonable apprehension of bias must establish the presence of serious and substantial grounds.

13According to the applicant, the adjudicator engaged “in a prolonged and pointed attack of Dr. Ross, the applicant’s psychiatric assessor.” Highlighting the tone and handling of this evidence in several areas of the decision, the applicant claims this analysis went beyond the expected weighing of an expert opinion and veered into the realm of a “personal attack”. The applicant claims this attack on the assessor’s professional integrity meets the standard from Committee for Justice and Liberty, since it “suggests that the adjudicator may have departed from a neutral and impartial analysis of the evidence.”

14The applicant provides several examples from the decision where she asserts that the adjudicator’s assessment of Dr. Ross’s evidence demonstrated a lack of impartiality. I find these examples are, largely, disagreements with the weight the adjudicator assigned to this evidence.

15For instance, the applicant takes issue with the adjudicator’s choice to “discount the Ross report” at paragraph 27, due to his finding that Dr. Ross “does not account for the Applicant’s pre-existing health concerns.” The applicant claims in her reconsideration submissions that this finding “constitutes an overreach into clinical territory that should be reserved for qualified medical professionals.” I do not agree. It is well within an adjudicator’s prerogative to weigh different factors when assessing the reliability of expert evidence, e.g., the assessor’s expertise, the scope of the assessment, etc. I see no grounds for bias in this part of the adjudicator’s weighing of the evidence.

16Similarly, the applicant argues that the adjudicator erred by challenging Dr. Ross’s opinion based on a lack of occupational therapy testing. According to the applicant, this “extralegal requirement” is an unfair burden to place on a psychiatric assessor. Further, though relying on Rule 18.2(b), the applicant also notes that this observation about Dr. Ross’s opinion is incorrect, since she reviewed findings from s. 44 occupational therapy reports.

17This complaint is again a criticism of the adjudicator’s weighing of the evidence, as opposed to an example of him demonstrating a reasonable apprehension of bias towards the applicant and her assessors. I see no evidence of bias in this argument.

18I also note that the alleged error claimed by the applicant appears to stem from a narrow reading of the decision. Mentioning the importance of a “multidisciplinary approach” in paragraph 29, the adjudicator took issue with the lack of an occupational therapy assessment done in conjunction with Dr. Ross’s psychiatric assessment. The adjudicator is not concluding that there was an absence of any occupational therapy evidence before Dr. Ross, but rather there was no such assessment done in conjunction with this psychiatric assessment.

19In addition to these complaints about the weighing of Dr. Ross’s report, there are several word choices that the applicant highlights in this part of her reconsideration submissions. Specifically, the applicant takes issue with the adjudicator referring to Dr. Ross’s September 27, 2022 report as “a rebuttal report or as a report procured by an advocate”, as well as the comment that it was “remarkable” that Dr. Ross did not include an index of the documents she reviewed. While I recognize that these criticisms may have been pointed, I am satisfied that the applicant has not demonstrated that an informed person, viewing the matter realistically and practically—and having thought the matter through—would conclude that the adjudicator did not fairly decide the case.

20An informed person would understand that a key aspect of a medico-legal determination, such as the ones conducted by the Tribunal when assessing a claim under the Schedule, would necessarily entail a detailed weighing of the parties’ competing, medical evidence. An informed person would also understand that Tribunal adjudicators are well-versed in the expected format and content of expert reports. This individual would have also read the adjudicator’s determination at paragraph 26 of the decision that the applicant’s case “relies largely” on this report from Dr. Ross. As such, I am satisfied that an informed person would understand that an opinion as important as Dr. Ross’s would be subject to a high level of scrutiny—a level of scrutiny that may occasionally entail pointed and probing criticism.

21Bias allegations call into question both the integrity of the adjudicator and the integrity of the administration of justice. There must be cogent evidence to meet the high threshold needed to demonstrate a reasonable apprehension of bias. Therefore, while she may take issue with some of the comments made by the adjudicator, I find the applicant’s arguments do not meet this high threshold.

Respondent’s Catastrophic Impairment Assessments

22The applicant has not demonstrated that the adjudicator’s handling of the respondent’s catastrophic impairment assessments amounts to a material breach of procedural fairness.

23The applicant claims the adjudicator breached her right to be heard by not considering all the relevant evidence she presented for Criterion 8. Specifically, the applicant argues that the adjudicator found there was no need to review the respondent’s expert reports, despite her reliance on its catastrophic impairment assessments to support her claim of “functional limitations, cognitive challenges, and emotional dysregulation”. She also claims the adjudicator did not consider the opinions of Dr. Allison Barnes, family physician, and Dr. Shawn Marshall, an expert in brain injuries.

24I recognize that the adjudicator stated at paragraph 52 of the decision that “an analysis of the respondent’s evidence is unnecessary”. I also accept that the main focus of the adjudicator’s analysis was on the sufficiency of the opinion from Dr. Ross—not the reports produced by the respondent.

25However, despite these observations, I do not find the applicant’s arguments accurately reflect the breadth of the adjudicator’s evidentiary review. Specifically, the adjudicator references findings made by the respondent’s experts in the decision. There are also several references to the clinical notes and records of Dr. Barnes. These references show that, while the adjudicator may not have reached the conclusions the applicant was asking him to take from this evidence, these reports and records formed part of the factual matrix at hand.

26For instance, at paragraph 34, the adjudicator states:

Additionally, it is noted in the psychological assessment IE report by Dr. D. Schmidt, psychologist, dated September 23, 2019, that the Applicant provided inconsistent reporting and found that the Applicant’s endorsements on certain psychometric testing was invalid due to inconsistent responding. In a December 17, 2019 assessment report by D. Evans, occupational therapist, the Applicant reported losing consciousness in the accident, contrary to the ambulance and hospital records immediately following the accident.

27These findings show the adjudicator considered evidence produced by the respondent, including the s. 44 catastrophic impairment assessment from Deanne Evans, occupational therapist.

28Further, I find the submissions the applicant made about this evidence during the written hearing are markedly different from the arguments she is now making on reconsideration. The reconsideration process is not meant to be a venue for presenting new positions, as parties are expected to use the initial hearing to put their best foot forward. For example, after listing some observations from her report at paragraph 21, the applicant asked the Tribunal in her initial written submissions to consider Ms. Evans’ opinion as a counterweight to the respondent’s catastrophic impairment report from Dr. Peter Judge, psychologist (at paragraph 61):

The Applicant submits that Dr. Judge’s findings are inconsistent with the records of section 44 OT, Dr. A Barnes and Dr. Ross. More specifically, the records from Dr. Allison Barnes record functional deterioration, the observations from section 44 OT CAT assessment record [the applicant’s] inability to complete simple assigned tasks…

29As opposed to framing Ms. Evans’ expert evidence as support for her own position, the applicant asked the adjudicator to consider how this evidence detracted from the reliability of Dr. Judge’s opinion. Therefore, since the adjudicator concluded that the evidence from Dr. Ross did not help the applicant to reach her evidentiary burden at first instance, I find it was reasonable that he then concluded there was no reason to explicitly assess the applicant’s arguments about Dr. Judge.

30I do note that, in her reply for the written hearing, the applicant made a brief reference to the argument she is now presenting on reconsideration. However, she only did so in passing at the very end of these submissions:

[The applicant] submits that the report from Dr. Ross’ which is collaborated by Dr. Barnes CNR’s, Dr. Shawn Marshall and section 44 OT assessment by Deanne Evans illustrates that [the applicant] has significant functional impairments consistent with three Marked or Extreme impairment under criterion 8.

31Aside from the fact that the Tribunal is not expected to address every argument presented by the parties, I note that the adjudicator would have curtailed the respondent’s right to be heard if he had permitted the applicant to raise this new position on reply. Considering the applicant highlighted observations from Ms. Evans in her initial submissions to challenge Dr. Judge’s opinion, I see no reason why she could not have also used these submissions to explain how this opinion supports Dr. Ross’s report.

32Finally, I recognize that there is no explicit reference to Dr. Marshall’s evidence in the decision. However, similar to her arguments about the impact of Ms. Evans’ opinion, the applicant references Dr. Marshall’s evidence in reply when arguing about the weight that should be afforded to Dr. Judge’s evidence. Once again, the adjudicator found there was no need to assess Dr. Judge’s opinion, and so I find the applicant has not established a breach of procedural fairness in this regard.

33Taken together, the applicant has not established a material breach of procedural fairness, pursuant to Rule 18.2(a).

Rule 18.2(b) – Errors of Fact or Law

34I find the applicant has not established any ground for reconsideration, pursuant to Rule 18.2(b).

35The applicant highlights several alleged errors in the decision. First, she claims the adjudicator’s reasons show a “fundamental misunderstanding” of how pain is to be assessed by the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“AMA Guides”). Specifically, by citing Pastore v. Aviva Canada Inc., 2012 ONCA 642, the applicant submits that a Criterion 8 analysis should focus on the insured person’s function, not the distinction between their physical and psychological impairments. The applicant also claims that the adjudicator’s standard for establishing a Class 5 impairment is too high, and he placed too much focus on activities that do not mirror the stress and speed of a workplace. Overall, the applicant contends that a proper reading of the evidence would have led the adjudicator to “the inevitable result” that she sustained a catastrophic impairment.

36I also note that, while framed as part of her procedural fairness arguments, the applicant further claims that the adjudicator did not “fairly contextualize [her] presentation in light of her brain injury”, defining this “error” as one that would likely have led to a different result. Despite the mention of Rule 18.2(a), I find her submissions are best understood under the auspices of Rule 18.2(b).

37Starting with the applicant’s argument about the handling of the pain aspect of her claim, I find this ground does not constitute an error, pursuant to Rule 18.2(b). The applicant highlights paragraph 46 of the decision, claiming the adjudicator incorrectly bifurcated his analysis into physical and psychological complaints—a divide that does not account for the interaction between psychological distress and pain. I find the applicant’s interpretation stems from a narrow reading of this paragraph (emphasis added):

To me, the concerns for the Applicant’s inability to work, or for her curbing her socializing, is primarily related to physical pain. In the Ross report, the Applicant states that the main reason for her incapacity to work is pain and an inability to tolerate movements of her neck, shoulders, and back, as well as when bending over. These are predominantly physical concerns and Dr. Ross’ report does not explain how these physical concerns are manifested from mental and behavioural impairments. Moreover, even if it was concluded that the physical concerns stem from a mental and behavioural impairment, I find the limitations described do not amount to an extreme impairment, or an impairment that precludes useful functioning or is not compatible with useful function.

38In addition to finding that the pain referenced by Dr. Ross was primarily physical in nature (e.g., related to movements), the adjudicator goes on to ultimately conclude that the characterization of this pain is largely irrelevant, due to the nature of the limitations at hand. With this finding in mind, I do not find the applicant has shown how the adjudicator’s allegedly incorrect assessment of her pain, even if accepted as an error, would likely have impacted the outcome.

39Turning to the applicant’s argument about the standard for Class 5 impairments, I find the applicant has not established an error. The applicant contends that the adjudicator applied a standard for Class 5 impairments that required her to demonstrate “near-constant supervision or institutional-level care”. According to the applicant, it is sufficient to show one is precluded from “meaningful and sustained adaptation to work-like settings”, and her evidence met this standard, e.g., her documented collapse following travel to an insurer’s examination. The applicant also suggests that the adjudicator’s analysis of this domain included largely irrelevant household tasks, such as grocery shopping, pet care, etc.

40Chapter 14 of the AMA Guides provides the following guidance when establishing whether an individual has sustained a Class 5 impairment in the Adaptation domain:

A person who cannot tolerate any change at all in routines or in the environment, or one who cannot function and who decompensates when schedules change in an otherwise structured environment, has an extreme limitation of adaptive functioning and an extreme psychiatric impairment. Such an individual might have a psychotic episode if a meal is not served on time or might have a panic attack when left without a companion in any situation.

41In addition to citing this same guidance from the AMA Guides at paragraph 24 of the decision, I find the adjudicator correctly applied this standard to the evidence. Specifically, after highlighting several examples of activities that the applicant could complete (e.g., using public transit, grocery shopping, visiting family and friends, etc.), the adjudicator made the following findings at paragraphs 43 – 45:

… All these examples demonstrate functionality that are incompatible with an extreme impairment according the AMA Guides as they demonstrate that the Applicant can function in an unstructured environment – something that a person with a class 5, extreme, mental and behavioural impairment would be unable to do. This is because a person engaging in the activities outlined above would naturally encounter unexpected changes or stressors that would render the person to decompensate, withdraw, or totally avoid the activities, which the evidence does not suggest happens to the Applicant.

The Applicant is able to curb decompensation due to stress. The Ross report concludes that the Applicant can become stressed easily, causing her to “lash out”, but gave no examples of situations where this occurred. However, according to the Applicant’s own reporting in the Ross report, she manages to avoid lashing out in public, such as in a store. Likewise, the Applicant reported stress due to cognitive decline, which causes her difficulty in finding items in her purse like her keys or debit card. However, she has managed to cope with these impairments by using a smaller purse and carrying less items when going out.

To me, a person who is able to manage their reaction to stressors in public, or is able to modify their behaviour in order to cope with such stressors, as what is reported by the Applicant, does not suffer an extreme mental and behavioural impairment.

42Considering the guidance from the AMA Guides quoted above, I see no error in the adjudicator’s approach. He does not require a standard of “near-constant supervision or institutional-level care”, but rather he used examples of the applicant’s independence to find she can maintain stability in changing circumstances. This finding helped him to reach his conclusions about the Adaptation domain, and the applicant has not established an error with this approach.

43Further, though the applicant contends her difficulty travelling for an insurer’s examination is evidence of a Class 5 impairment, I note that this position was explored at length in the decision, namely, from paragraphs 48 – 50. As noted above, the reconsideration process is not a venue for re-weighing evidence.

44Similarly, I find the applicant’s submission about allegedly irrelevant considerations is another attempt to have the Tribunal re-assess evidence from the initial hearing. The AMA Guides states that activities like the use of public transportation, the ability to “interact appropriately with the general public”, etc. are valid considerations under the Adaptation domain. Concerns about the use of these factors in the adjudicator’s analysis are, therefore, better understood as attempts to have the Tribunal re-weigh this part of the case.

45In regard to the applicant’s argument about the impact of her brain injury, I find this ground is again an attempt to re-assess a finding made at first instance. When discussing instances where the applicant’s healthcare practitioners questioned the consistency and quality of her self-reports, the adjudicator made the following comments at paragraph 37:

On February 11, 2022, Dr. Barnes noted a conversation with the Applicant’s counsel, and opined that the Applicant sustained a mild traumatic brain injury with soft tissue injuries, and has some degree of ongoing symptoms related to it. However, the note states that there is also evidence of a histrionic personality and over-presentation of symptoms based on both Dr. Barnes’ assessments as well as the assessments by various specialists.

46As this quotation demonstrates, the possibility of a brain injury (and its impact on her self-reports) was considered by the adjudicator. Without showing how this analysis amounts to an error, the applicant has not met her onus under Rule 18.2(b).

47Finally, the applicant contends that her approved CPP-Disability (“CPP-D”) claim provided “an independent federal determination of her inability to engage in substantially gainful employment”, but the adjudicator “ignored critical functional data”. I recognize that evidence about the CPP-D claim was not mentioned in the decision, but I do not find the applicant has shown how this absence amounts to an error, pursuant to Rule 18.2(b). There is no explicit argument linking the receipt of CPP-D benefits to her claim of a Class 5 impairment in her initial written submissions. Rather, this argument is first introduced in reply, and it is only done so in a passing manner that is more focused on the alleged insufficiency of the respondent’s position (at paragraph 14, italics in original):

…The Respondent suggests that a person could suffer a “complete inability” in accordance with post-104 IRB test but still be able to do some form of employment. [The applicant] states that the insurer ignores that she also met the legal tests for CPP D and together with meeting the post 104 IRB test, it is rather consistent that she is precluded useful function in Adaptation.

48It is well-established that adjudicators are not expected to mention every piece of evidence or argument presented during a hearing. Considering the brief mention of this argument that was first made in reply, I do not find the absence of this evidence in the decision constitutes a legal or factual error.

CONCLUSION & ORDER

49The applicant’s request for reconsideration is dismissed.

Craig Mazerolle

Vice-Chair