RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 23-003877/AABS
Case Name: Asghar Mirzaie v. Intact Insurance Company
Written Submissions by:
For the Applicant: James W. Srebrolow, Counsel Alexander Chekina, Counsel
For the Respondent: Darrell March, Counsel
OVERVIEW
1Stemming from an accident on August 16, 2016, 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 six-day videoconference hearing.
2A decision was released on December 10, 2024 (“initial decision”). The panel found the applicant was not catastrophically impaired under either Criterion 7 or 8, and further concluded that, aside from a chronic pain assessment treatment plan, he was not entitled to any of the disputed attendant care benefits and medical benefits. They also denied the applicant’s request for an award, as well as the parties’ costs requests.
3On December 27, 2024, the applicant filed a request for reconsideration. The Tribunal released its reconsideration decision on March 24, 2025, dismissing the request (“reconsideration decision”).
4The applicant has started proceedings before the Divisional Court.
5On July 7, 2025, I released a letter indicating that the Tribunal decided to initiate a review of the initial decision and the reconsideration decision, pursuant to Rule 18.5 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). I noted that “the review will focus on whether the Tribunal committed a material breach of procedural fairness as set out in Rule 18.2(a).”
6This letter was followed by a further piece of correspondence on July 21, 2025 in which I stated that: “… the Tribunal will assess whether, without the experts having been presented for cross-examination, the adjudicator’s reliance on the respondent’s expert reports constitutes a material breach of procedural fairness.”
7On August 27, 2025, I released a motion order denying the respondent’s request to dismiss the Rule 18.5 review (or, in the alternative, to stay the review and defer “the matter back to the Divisional Court”). Briefly, the respondent alleged that the review was not being conducted “within a reasonable time”, and that it engaged the doctrines of abuse of process and res judicata. I did not accept these arguments.
8I released a further motion order on September 9, 2025 denying the respondent’s request for certain productions from the Tribunal. I also denied its request for an adjournment of the Rule 18.5 review.
9The parties were given the opportunity to make submissions for this Rule 18.5 review. Both parties filed submissions.
RESULT
10Following a review under Rule 18.5, the initial decision and the reconsideration decision are cancelled, in part, pursuant to Rule 18.4.
11The determination of catastrophic impairment pursuant to Criterion 7 and the applicant’s claim for attendant care benefits (in the amount of $6,000.00 per month only) will be reheard by a new adjudicator. The remaining findings from the initial decision and reconsideration decision are confirmed.
12A 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 rehearing.
ANALYSIS
13The Tribunal’s authority to review any decision as set out in Rule 18.5 provides that the Tribunal shall not make any order under Rule 18.4(b) unless it is satisfied that one or more of the criteria in Rule 18.2 are met.
14Under Rule 18.2, 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.
15The test for reconsideration under Rule 18.2 is a high threshold.
Rule 18.5 – Respondent’s Experts and Cross-Examination
16I am satisfied that the Tribunal committed a material breach of procedural fairness in rendering the initial decision, pursuant to Rule 18.2(a). Briefly, when the respondent indicated that it would not be calling witnesses listed on its final witness list, the only procedurally fair way to proceed was to exclude those witnesses’ reports. This breach was not remedied in the reconsideration decision. As such, both decisions are cancelled, in part, in accordance with Rule 18.4.
Initial Decision
17Following a videoconference hearing, the panel dismissed the applicant’s claim in full, save for a chronic pain assessment treatment plan. Though much of the panel’s reasoning involved consideration of the applicant’s evidence, there are several key references to the respondent’s experts in their denial of catastrophic impairment under Criterion 7 and the assessment of the applicant’s whole person impairment (“WPI”). Specifically, Dr. Ricki Ladowsky-Brooks’ assessment report (dated August 15, 2023) played a pivotal role in the panel’s denial of catastrophic impairment on this basis.
18At paragraph 42, the panel discussed the competing opinions from Dr. Ladowsky-Brooks and the applicant’s neurology assessor, Dr. Basile, as it related to their WPI ratings for the category of “Mental Status and Integrative Functional Ability”:
In contrast to Dr. Basile’s opinion, Dr. Ladowsky-Brooks, IE assessor and neuropsychologist, in April of 2023 concludes any attention and mental flexibility difficulties are unrelated to the accident. We agree, because the ambulance call report states that there was no injury to the head or any loss of consciousness. Dr. Ladowsky-Brooks points to the significant time that has passed since the accident and to the applicant having several medical conditions that are risk factors for cognitive impairment which are unrelated to the accident to provide a 0% rating. We agree with his report which concludes that there is insufficient evidence to attribute the possible mild difficulties to the accident from 2016.
19As a result of this analysis, the panel endorsed Dr. Ladowsky-Brooks’ 0% rating over Dr. Basile’s 14% rating.
20In the end, the panel concluded that the applicant had established a WPI rating of 47%, several points shy of the 55% required to establish catastrophic impairment under Criterion 7. Since the applicant was found not to be catastrophically impaired under either criterion, the panel further concluded at paragraph 86: “… he is not entitled to $6,000.00 per month in attendant care benefit and there is no need to consider if the applicant’s Form 1 dated January 4, 2023, is reasonable and necessary.”
Reconsideration Decision
21In the reconsideration request, one of the alleged errors claimed by the applicant was the Tribunal’s failure to (capitalization in original) “take into account that the Respondent called NO WITNESSES including but not limited to any Section 44 assessors which would have allowed Applicant’s counsel an opportunity to cross-examine same”. Of note, the applicant highlighted the panel’s dismissal of Dr. Basile’s WPI rating under Mental Status & Integrative Functional Ability. According to the applicant, endorsing his expert’s 14% WPI rating would have allowed the Tribunal to deem him catastrophically impaired under Criterion 7.
22The Tribunal addressed this aspect of the applicant’s request at length from paragraphs 30 – 46 in the reconsideration decision. It found the process for handling the respondent’s expert evidence was both procedurally fair and correct. A key part of this analysis is found in paragraphs 33 and 34:
… I find that both parties were given equal opportunities to be heard during the hearing, which included making their opening statements, presenting their evidence during the examination and cross-examination of the witnesses, entering evidence as exhibits and making closing submissions.
Although not addressed in the decision, the applicant referred to the respondent’s s. 44 reports during his examination of his own witnesses and had asked the Tribunal to mark some of the s. 44 reports as exhibits during the hearing. On the fourth day of the hearing, upon receiving the respondent’s confirmation that it would not be calling any s. 44 expert witnesses to testify at the hearing, the applicant did not make any objections, did not request for summonses for the s. 44 experts, nor did he ask the Tribunal to exclude the s. 44 expert reports that had already been entered into evidence. Therefore, the applicant’s submission that the Tribunal failed to give him an opportunity to address the respondent’s failure to call its s. 44 expert witnesses is not established as it is raised on reconsideration for the first time.
23The Tribunal went on to dismiss the applicant’s request for reconsideration.
Parties’ Positions
24In his submissions for the Rule 18.5 review, the applicant submits the panel’s reliance on the respondent’s expert evidence was procedurally unfair since there was no cross-examination. The applicant relies, in part, on the Divisional Court’s ruling in Shahin v. Intact Insurance Company, 2024 ONSC 2059 (“Shahin”) to support this position.
25The respondent contends that the Tribunal’s decisions should both stand. First, the respondent claims that the doctrine of res judicata applies to the admission of its expert reports. Second, the respondent argues the admission of its reports without cross-examination was done in accordance with the discretion provided by s. 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”). Third, the respondent asserts that there was no “material” breach of procedural fairness, since it was the applicant’s failure to comply with Rule 8.2 that led to the lack of cross-examination. Fourth, by distinguishing the cases the applicant raised, the respondent claims the applicant understood it had retained the right not to call its experts. For instance, the respondent stated in its final witness list (dated May 29, 2024) that it may not call its experts to testify. Finally, even if the Tribunal concludes it was improper to admit its reports without cross-examination, the respondent submits that the panel’s “conclusion was supported by the totality of the medical evidence.”
26In reply, the applicant claims the respondent’s final witness list provided a reasonable basis for him to assume that “all witnesses” would attend the hearing.
Analysis
27By admitting and then relying upon the untested evidence from Dr. Ladowsky-Brooks, I find the panel committed a material breach of procedural fairness, pursuant to Rule 18.2(a). This breach was not remedied in the reconsideration decision.
28A key aspect of procedural fairness is to ensure that all parties have an opportunity to respond to the other side’s arguments and evidence, especially when this evidence is central to the determination at hand. As noted in Shahin, cross-examination is an essential tool for testing the veracity of another party’s evidence. Yet, according to the applicant, this procedural safeguard was not available to him during the hearing. I accept this position.
29Section 15 of the SPPA provides the Tribunal with expansive control over the admission of evidence—flexibility that aligns with the responsive nature of administrative justice. However, even with this wide discretion, the Tribunal must still ensure it is protecting the parties’ right to procedural fairness. This protection is especially pressing when the Tribunal is being asked to rule on an issue as important to the applicant’s personal interests as catastrophic impairment.
30There is no dispute that the applicant took issue with this lack of cross-examination, as the respondent conceded in its Rule 18.5 review submissions that:
While the Applicant demanded that [the respondent’s] assessors be made available after [the respondent’s] Witness List of May 29, 2024, merely demanding that a witness appear for cross-examination cannot be sufficient to preserve one’s right to cross-examine the witness.
31By not allowing the applicant to use cross-examination to test pivotal expert evidence that was later used to deny his claim of catastrophic impairment, I find the panel materially breached the applicant’s right to procedural fairness. The inability to cross-examine the respondent’s experts should have resulted in the exclusion of their reports. That was the only reasonable course of action available to the panel to protect the applicant’s right to procedural fairness. The applicant has shown that Rule 18.2(a) is engaged.
32Turning to the respondent’s arguments for this Rule 18.5 review, I first conclude that the doctrine of res judicata does not apply. While I accept that there is significant importance placed on finality in our legal system, the Supreme Court of Canada has ruled that statutes may empower decision-makers to revisit final decisions: see, for example, Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC). For the Tribunal, s. 21.2 of the SPPA is the statutory basis for Rule 18.5 reviews. Therefore, even if there have been prior rulings about the admission of the respondent’s expert evidence, I find there is a statutory and common law basis for conducting this further review.
33I then find the respondent has not shown that this breach was immaterial. As detailed above, the report from Dr. Ladowsky-Brooks played a key role in the panel’s assessment of Criterion 7, namely, it allowed them to conclude that Dr. Basile’s 14% WPI rating was not reliable. The respondent’s expert evidence materially contributed to the determination that the applicant was not catastrophically impaired. By extension, it also allowed the panel to conclude that there was no need to assess the reasonable and necessary nature of his Form 1 from January 2023—a material impact on the applicant’s claim for attendant care benefits in the amount of $6,000.00 per month.
34Further, I do not accept the respondent’s position that it was unreasonable for the applicant to assume its experts would attend the hearing. I recognize that the respondent stated in its witness list that it may “rely upon the material exchanged rather than call each individual witness”. However, I find Dr. Ladowsky-Brooks’ inclusion on this list still provided the applicant with reasonable grounds to assume the respondent would at least ask this expert to attend the hearing. Specifically, at the end of its list, the respondent states: “We also require all witnesses to be in attendance at the upcoming Hearing for the purpose of cross-examination on their reports and materials.” There is no indication that this requirement was limited to either party.
35Additionally, at paragraph 15 of the case conference report and order (released December 6, 2023, “CCRO”), the adjudicator ordered the parties to exchange (emphasis removed) “their final witness lists 30 days before the hearing”. This finality adds to the reasonableness of the applicant’s assumption that the witnesses included on the respondent’s list would attend the hearing.
36Regarding the respondent’s argument about summons and compliance with Rule 8.2, I do not find this position challenges my findings above.
37For context, at paragraph 20 of the initial decision, the panel indicated that it had denied the applicant’s request to issue a summons for unnamed witnesses. The panel concluded that the request was not made in accordance with Rule 8.2, namely, the requirement to file “the form in a timely manner so that the Tribunal can adjudicate and issue a summons in advance of the 10-day deadline for service”.
38According to paragraph 45 of the reconsideration decision, these summons requests were for the applicant’s “own expert witnesses only”. These requests “were part of the applicant’s motion brought prior to the hearing and heard on the first day of the hearing”. Considering he had already been told that no summons would be issued based on the 10-day deadline from Rule 8.2, I find it was reasonable that the applicant did not then ask for the respondent’s experts to be summonsed when he later discovered that they would not be called.
39Finally, regarding the respondent’s contention that the circumstances in the applicant’s case law is not analogous to the present dispute, I find it is not necessary for me to assess this argument. Aside from accepting the well-established principle from Shahin about the importance of cross-examination, I find the applicant’s case law is not needed to establish a material breach of procedural fairness in this matter.
40Taken together, I am satisfied that the Tribunal committed a material breach of procedural fairness in the initial decision, and it was not rectified in the reconsideration decision. Specifically, when the respondent indicated during the hearing that it would not be calling witnesses listed on its final witness list, the only procedurally fair way to proceed was to exclude their reports.
Rule 18.5 – Applicant’s Written Submissions
41The applicant also raises concerns about the panel denying his motion for leave to file written submissions. The applicant claims that the exclusion of these written arguments significantly hindered the fairness of the proceeding. For instance, the applicant highlights the panel’s observation that several issues—such as the catastrophic impairment assessments treatment plan—were not specifically argued during the hearing. According to the applicant, this observation shows that dismissing his written submissions meant some issues were not addressed. The applicant also claims that the panel’s understanding of evidence about the physical rehabilitation treatment plans did not align with his understanding of the case. The applicant also claims that there were productions that the Tribunal “by its own ruling declined to even consider”. Finally, the applicant argues that the CCRO allowed for written submissions.
42The panel addressed the motion for leave to file written submissions in the initial decision at paragraph 19:
The applicant requested leave to file extensive written submissions due to the applicant's view that the complexity and number of issues in dispute required lengthy written submissions. The motion was scheduled to be heard at this video-conference hearing. We were of the opinion that the relief requested in the motion could be adequately addressed with oral submissions made within the video-conference hearing. For the reasons above, we find that the parties are to make oral submissions on all issues before us at this hearing. The applicant’s request is denied.
43Further details were provided about this determination in the reconsideration decision at paragraphs 19 – 29, including the observation that the videoconference hearing format was decided at the case conference.
44I find there was no breach of procedural fairness, nor was there any error, in the panel’s decision to deny leave to file written submissions.
45Aside from the parties’ ability to present whatever arguments they saw fit during closing submissions, I note that several documents from these written submissions were still marked as exhibits. I also find that the reference to written submissions at paragraph 19 in the CCRO was a general direction about formatting for both written submissions and document/authority briefs. I do not see how the applicant’s right to procedural fairness was breached, nor do I find the panel erred in this regard.
Rule 18.5 – Applicant’s Other Arguments
46The applicant made several other arguments as part of his Rule 18.5 review submissions. These arguments largely fall outside the scope of this review as set out in my July 7 and 21, 2025 correspondence. However, for completeness, I will briefly address them in turn.
47First, the applicant claims that the approval of the chronic pain assessment treatment plan demonstrated an “inherent inconsistency and unfairness” on the part of the panel. Specifically, the applicant highlights how this plan was submitted more than 260 weeks post-accident, and it was approved in an amount that exceeds the limit under s. 25(5) of the Schedule. I do not find the applicant has shown how the approval of this plan amounts to a level of inconsistency that would challenge the procedural fairness of the hearing. So long as their evidentiary assessments are done in a procedurally fair manner (with reasons provided to justify these assessments), adjudicators are allowed to reach differing determinations on entitlement.
48Second, the applicant highlights the panel’s comment at paragraph 47 regarding Criterion 8 and the need to focus on “two domains, namely, social functioning and concentration, persistence and pace.” Despite this reference, the applicant claims the panel only considered the domain of social functioning. The applicant has not demonstrated any error or unfairness in this approach. Criterion 8 requires at least three of the four domains listed under the AMA Guides to be a marked impairment. Since the facts of the case meant both social functioning and concentration, persistence and pace had to be a marked impairment for the applicant to be deemed catastrophically impaired, it was open to the panel to conclude there was no need to assess the latter domain after finding no marked impairment under the former.
Rule 18.4 – Rehearing for Criterion 7 and Attendant Care Benefits
49Due to the adjudicators’ reliance on the respondent’s untested expert evidence, I find the most appropriate remedy is to cancel the initial decision and the reconsideration decision as it relates to Criterion 7 and the claim for attendant care benefits (for the amount allowed based on catastrophic impairment), pursuant to Rule 18.4. A rehearing is required to allow the parties the opportunity to cross-examine each other’s expert witnesses.
50The remaining findings from the initial decision and the reconsideration decision shall stand.
CONCLUSION & ORDER
51The reconsideration initiated under Rule 18.5 is granted.
52The initial decision and the reconsideration decision are cancelled, in part, pursuant to Rule 18.4.
53Part of the dispute will be sent to a rehearing, namely, the determination of catastrophic impairment pursuant to Criterion 7 and the applicant’s claim for attendant care benefits (in the amount of $6,000.00 per month only). The remaining findings from the initial decision and reconsideration decision are confirmed.
54A 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.
55The Tribunal shall reach out to the parties to canvass dates for this case conference.
56I am not seized.
Craig Mazerolle Vice-Chair
Released: November 13, 2025