RECONSIDERATION DECISION
Before:
Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number:
24-007666/AABS
Case Name:
Mohammed Mahdi v. TD General Insurance Company
Written Submissions by:
For the Applicant:
Georgiana Masgras, Counsel
For the Respondent:
Claudia Cortell, Paralegal
OVERVIEW
1On September 2, 2025, the applicant first requested reconsideration of the Tribunal’s decision released August 11, 2025 (“decision”). Supplementary materials and a corrected version of the Request for Reconsideration form were later provided on September 4, 2025.
2Stemming from an accident on August 3, 2022 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 one-day videoconference hearing. In the resulting decision, the panel found the applicant was barred by s. 61 of the Schedule from pursuing a claim for accident benefits at the Tribunal, due to his entitlement to benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A (“WSIA”).
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(b) and Rule 18.2(c) to support his request for reconsideration. He is seeking an order finding he is permitted to proceed to a substantive issues hearing.
5The respondent asks the Tribunal to dismiss the request, claiming the applicant is “simply trying to re-argue his failed position”. It is also seeking costs.
RESULT
6The applicant’s request for reconsideration is granted.
7The decision is cancelled, pursuant to Rule 18.4. The dispute will be sent to a rehearing.
8The respondent’s costs request is denied.
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(c) – New Evidence
10I find the applicant has established grounds for reconsideration based on Rule 18.2(c).
11To trigger Rule 18.2(c), the requesting party must meet a three-part test:
There is “evidence that was not before the Tribunal when rendering its decision”;
This evidence “could not have been obtained previously by the party now seeking to introduce it”; and,
This evidence “would likely have affected the result”.
12Section 61(1) of the Schedule states that an insurer is not required to pay accident benefits to an insured person if they are entitled to receive benefits under the WSIA. The applicant has received benefits under the WSIA, so, unless he can engage the exception under s. 61(2) of the Schedule, he is barred from claiming accident benefits. To trigger this exception, an insured person must establish that they have elected to bring an action in accordance with s. 30 of the WSIA, and this election was not made primarily for the purpose of claiming accident benefits.
13As detailed at paragraph 8 of the decision, the applicant presented several pieces of evidence to support his request to trigger s. 61(2):
The applicant submits that his Workplace Safety and Insurance Board (WSIB) benefits claim was approved, and benefits were received, however, he elected to withdraw his WSIB claim pursuant to section 61(2) of the Schedule. He relies on a letter dated November 7, 2022, from his counsel to WSIB confirming that he decided to opt out of his WSIB claim to pursue his insurance claim for accident benefits. The applicant also relies on the Assignment of Workplace Safety & Insurance Benefits executed by the applicant and the respondent on November 25, 2022, and October 4, 2022, respectively. The applicant also relies on a Statement of Claim…
14The panel denied the applicant’s request to trigger the exception under s. 61(2). To reach this finding, the panel determined that the November 7, 2022 letter to the WSIB was insufficient on its own to terminate a claim for benefits under the WSIA, and they placed little weight on the applicant’s Statement of Claim. Of import to this reconsideration decision, the panel also made the following finding about the Assignment of Workplace Safety & Insurance Benefits (at paragraph 13, emphasis added):
The applicant did not present evidence to the Tribunal that he fulfilled these terms. We note that the applicant entered into evidence a “Re-Election Agreement”, signed by both the applicant and his counsel which appears to have been sent to the WSIB. However, no repayment agreement with the terms raised in the WSIB’s response of December 23, 2022, was submitted into evidence. We also note that the Assignment of Workplace Safety & Insurance Benefits, signed by both the applicant and the respondent, is incomplete because the section requiring the WSIB’s consent was left blank. Without evidence to demonstrate that the WSIB has formally terminated the benefit, we find the applicant has not provided persuasive evidence that he has properly withdrawn his WSIB claim and/or obtained the required consent from the WSIB for his withdrawal to be complete.
15Pursuant to Rule 18.2(c), the applicant supports his reconsideration request by filing an e-mail his counsel received from the WSIB on September 2, 2025. Sent in response to counsel’s request for “confirmation” that the applicant’s claim for benefits under the WSIA had been withdrawn, an adjuster with the WSIB wrote: “The signed re-election agreement is the confirmation that the claim is withdrawn.”
16According to the applicant, this letter could have not been obtained earlier, because the “WSIB’s internal processes” are beyond his control. Further, the applicant submits this e-mail would likely have impacted the outcome of the decision, as it “directly supports the Applicant’s position”.
17I find the September 2, 2025 e-mail from the WSIB meets the three-part test under Rule 18.2(c).
18First, as it was sent on September 2, 2025, it is clear that this e-mail was not before the Tribunal prior to the decision being rendered on August 11, 2025.
19Next, I find the applicant has shown this e-mail would likely have affected the outcome of the decision. As the quotations above demonstrate, the applicant’s case was primarily based on presenting evidence to show his claim for benefits under the WSIA had been terminated. In turn, the panel found that, without “evidence to demonstrate that the WSIB has formally terminated the benefit”, the applicant had not presented “persuasive evidence that he has properly withdrawn his WSIB claim”. This finding appears to have played a major role in the decision.
20Now, as this new e-mail states, the WSIB has accepted the applicant’s withdrawal. This is a significant change to the factual matrix that was not available to the panel prior to rendering their decision. Considering the centrality of this finding, I conclude that this new evidence would likely have impacted the outcome of the decision.
21Where I have a bit of pause though is with the branch of the test involving whether this evidence “could not have been obtained previously”. Once again, the applicant claims the WSIB’s internal processes made it difficult to obtain the withdrawal confirmation in a timelier fashion, but it is difficult to establish what efforts were made to try and obtain this confirmation at an earlier date. Specifically, in correspondence sent a little over an hour prior to the WSIB’s response on September 2, 2025, the applicant’s counsel noted she was “following the email below”. This prior e-mail was not included with the applicant’s reconsideration materials.
22Yet, despite the sparse information provided with the reconsideration request, I do note that the panel appears to have had evidence of communication issues between the applicant and the WSIB. As noted at paragraph 11 of the decision:
The applicant produced a letter from his counsel to the WSIB dated November 7, 2022, advising that he had “decided to opt out of his WSIB claim and continue with the accident benefit claim”. (A second identical letter dated December 2, 2022, was subsequently sent to the WSIB). In a response dated December 23, 2022, the WSIB wrote to the applicant confirming its receipt of the applicant’s intention to withdraw…
23This timeline (including the need for a “second identical letter”) shows the applicant has experienced prior issues with receiving correspondence from the WSIB. Therefore, I accept that the applicant provided the September 2, 2025 confirmation from the WSIB in as timely a fashion as he could. He had no control over the response times of this third-party organization, so I conclude that the applicant has met this stage of the test under Rule 18.2(c).
24The respondent disputes the applicant’s reconsideration request in several ways. I do not find these arguments challenge my findings above.
25First, by submitting that he knew the case he had to meet, the respondent disputes the applicant’s claim that he could not have obtained this evidence prior to the hearing. As I have concluded above, the timeline of correspondence between the applicant and the WSIB is sufficient for me to find that he has met this branch of the Rule 18.2(c) test.
26Further, the respondent claims this new evidence was not properly put before the Tribunal. Specifically, the respondent makes the following claims in its reconsideration submissions about the supplementary affidavit that contained this e-mail from the WSIB (footnotes removed):
The supplementary affidavit dated September 4, 2025 constitutes new evidence filed after the 21-day deadline under Rule 18.1 and the reconsideration request. Accordingly, the affidavit should be excluded. Further, the Reconsideration Order fails to provide reasons for allowing the non-compliant filing.
27As the respondent notes, the supplementary affidavit was permitted to form part of the record as part of the applicant’s reconsideration request: see reconsideration order, dated September 16, 2025. Further, despite the respondent’s position that no reasons were provided in this order, the supplementary affidavit was addressed at paragraphs 6 – 8:
In reviewing the correspondence sent between the Tribunal and the applicant’s representative from in and around this time, it appears that there was a minor, technical issue with the reconsideration request form that was submitted on September 2, 2025. A corrected version of the form (along with the supplementary materials) were filed by the applicant on September 4, 2025.
In response, the respondent e-mailed the Tribunal on September 4, 2025 with concerns about the timing of the applicant’s reconsideration request. The respondent claims it was “filed outside the permitted timeline”. The applicant disputes this position.
As the initial version of the reconsideration request was submitted on September 2, 2025, I find that this brief, two-day delay for delivery of the corrected version was caused by a technical error, not an intended breach on the part of the applicant. I am also satisfied that there is little to no prejudice facing the respondent from this minor delay, including the delayed delivery of the supplementary materials. Taken together, I will permit all these records to be considered by the Tribunal in adjudicating this reconsideration request.
28Finally, the respondent challenges the position that this new evidence would have affected the outcome of the decision, arguing that the facts show there was no “genuine intent to pursue a tort claim”. The respondent also contends that the panel’s findings deserve deference.
29I accept that the panel deserves deference for their factual findings, especially considering the detailed analysis that they conducted in the decision. However, the standard under Rule 18.2(c) is not that the new evidence would have affected the result. Rather, the requesting party must only show that it would likely have affected the result. For the reasons above, I find the applicant has met this lower threshold.
30Taken together, the applicant has established a ground for reconsideration based on Rule 18.2(c). Due to this conclusion, it is not necessary to assess the parties’ arguments about Rule 18.2(b).
Rule 18.4 – Cancelling the Decision
31Having found the applicant established a ground for reconsideration, I must now determine what the appropriate remedy is under Rule 18.4.
32The applicant is asking the Tribunal to issue an order finding he is permitted to proceed to a substantive issues hearing. Considering the significance of the s. 61 preliminary issue to both parties, along with the basis for granting this reconsideration, I find the most appropriate way to proceed is to cancel the decision and send the matter to a rehearing. A rehearing will allow an adjudicator to weigh the factual matrix in light of the new circumstances revealed in this reconsideration request, i.e., the WSIB’s confirmation of the applicant’s withdrawal of his claim under the WSIA.
NOTICE OF WITHDRAWAL
33In my review of the Tribunal’s file, I note that the applicant filed a completed Notice of Withdrawal on July 15, 2025—several weeks before the release of the decision. It is unclear why this Notice of Withdrawal was not accepted by the Tribunal, and neither party addressed the withdrawal in their reconsideration submissions.
34In light of the applicant’s silence on this point, I have proceeded with reviewing the reconsideration request based on the reconsideration materials before me.
COSTS REQUEST
35Turning to the respondent’s costs request, I do not find it has met the high threshold necessary for ordering costs.
36Rule 19.1 states that the Tribunal may award costs when “another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”.
37The respondent does not provide any explicit submissions in support of its request, but rather asks the Tribunal to dismiss the reconsideration “with costs”. The party requesting costs has the onus to demonstrate that the opposing party’s conduct meets the high threshold required under Rule 19.1, and so the respondent has not met this high onus.
CONCLUSION & ORDER
38The applicant’s request for reconsideration is granted.
39Pursuant to Rule 18.4, the decision is cancelled. The dispute will be sent to a rehearing.
40A case conference will be scheduled within 30 days of the release of this reconsideration decision so that the Tribunal may issue procedural and administrative directions as necessary for the conduct of the hearing.
41The Tribunal shall reach out to the parties to canvass dates for the case conference.
42The respondent’s costs request is denied.
43I am not seized.
Released: November 13, 2025
___________________
Craig Mazerolle
Vice-Chair