Samuel Tagoe v. The Personal Insurance Company, 2025 CanLII 125972

Citation: Tagoe v. The Personal Insurance Company, 2025 ONLAT 21-001365/AABS-R

RECONSIDERATION DECISION

Before: Craig Mazerolle, Vice-Chair

Licence Appeal Tribunal File Number: 21-001365/AABS

Case Name: Samuel Tagoe v. The Personal Insurance Company

Written Submissions by:

For the Applicant: David Kapanadze, Counsel

For the Respondent: Patrick Baker, Counsel

OVERVIEW

1On September 15, 2025, the applicant requested reconsideration of the Tribunal’s decision released August 25, 2025 (“decision”).

2Stemming from an accident on April 28, 2016 and a request for benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”), the parties participated in a four-day videoconference hearing. In the resulting decision, the panel found the applicant was not catastrophically impaired under either Criterion 7 or Criterion 8. They also dismissed the applicant’s claims for an income replacement benefit (“IRB”), treatment plans, an award, and interest.

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 selected Rule 18.2(b) on his Request for Reconsideration form, but he relies on submissions that touch on both Rule 18.2(a) and Rule 18.2(b). He is seeking an order to either vary the decision, or, in the alternative, to order a rehearing. The applicant is also seeking several amendments to the decision, pursuant to Rule 17.

5The respondent asks the Tribunal to dismiss the reconsideration request.

RESULT

6The applicant’s request for reconsideration is granted, in part.

7Pursuant to Rule 18.4, the parties shall participate in a re-hearing before a different adjudicator. Aside from interest and an award, the only issue in dispute in the re-hearing is whether the applicant is entitled to an IRB, pursuant to s. 36(6) of the Schedule.

8I decline to grant the applicant’s requested amendments, pursuant to Rule 17.

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 – Grounds for Reconsideration

10I find the applicant has established a ground for reconsideration, pursuant to Rule 18.2(b), but only as it relates to the IRB.

Timeline of Events

11To start, the applicant claims the panel incorrectly detailed the timeline of his two strokes, errors that impacted their causation analysis. I do not agree.

12First, the applicant submits the panel incorrectly asserted that the April 28, 2016 accident was caused by a stroke that took place several months later on June 2, 2016. To support this position, the applicant focuses on comments they made at paragraph 18 of the decision (emphasis added):

We reject Dr. Getahun’s 20% WPI rating for the lower extremity impairment because we find the accident was not the cause of the aggravation of the applicant’s pre-existing osteoarthritis and need for hip replacement surgery. The evidence supports that the applicant had a twenty-year history of right hip osteoarthritis and his right leg was shorter than his left. As noted above, the applicant had a stroke on June 2, 2016, which resulted in his driver’s licence being suspended. Both parties agree that the stroke was not caused by the accident and the applicant’s assessor was of the view that the stroke may have caused the accident. We also find that the applicant reported to Dr. Yu, his family doctor on November 22, 2016, that he had hip pain for over one year. Consequently, we do not accept Dr. Getahun’s opinion that the applicant’s hip issues were asymptomatic prior to the accident.

13I do not agree with the applicant’s interpretation of this passage. Though there is an unclear statement about how the applicant’s assessor “was of the view that the stroke may have caused the accident”, there is no indication in this paragraph that the panel adopted this line of reasoning. The applicant has the onus to show that an error took place, and I do not find he has done so in this regard.

14The applicant further claims there were contradictory dates provided in the decision for when his second stroke took place, i.e., paragraph 14 states this stroke took place on April 7, 2018, while paragraphs 33 and 47 both list April 8, 2018. Aside from the fact that the applicant does not indicate what the correct date should be, I do not find he has adequately explained how this contradiction would likely have impacted the outcome.

15I accept that the stroke could not have taken place on two different days, but the minor difference between April 7 and April 8, 2018 does not appear to have been a factor in the panel’s overall analysis. Rather, their focus was on how the second stroke took place in and around April 2018, and how it was likely the cause of his current disability and inability to work.

16Further, the panel highlighted the date of the second stroke when they were assessing the relative weight of the applicant’s catastrophic impairment psychiatric assessor’s opinion (at paragraph 32): “We place little weight on Dr. Shahmalak’s ratings and diagnosis because he did not see the applicant between the time of the accident and the 2018 stroke…”. Since Dr. Shahmalak’s assessment took place on November 23, 2020, I find the difference between April 7 and April 8, 2018 would have been irrelevant to this part of the panel’s chain of reasoning.

Causation Analysis

17The applicant then claims that the panel made two errors in their application of the causation test. First, the applicant submits that the panel did not assess whether his “accepted accident-related impairments… contributed as necessary links in a chain that advanced deconditioning, pain-avoidant gait, or earlier progression to total hip arthroplasty.” The applicant highlights how the panel attributed his hip deterioration and arthroplasty (two key components to their catastrophic impairment and IRB findings) to the second stroke in April 2018. According to the applicant, these attributions were not clearly explained, and they are at odds with the panel’s findings about his other physical impairments and sleep issues. Taken together, the applicant claims these analytical errors led the panel to disregard his catastrophic impairment assessor’s whole person impairment ratings (“WPI”) for the lower-extremity and scarring.

18I do not accept the applicant’s position that there is an inconsistency in the panel’s findings about his physical impairments and sleep issues that demonstrate a misapplication of the causation test.

19To summarize, the applicant claims there is an inconsistency between two of the panel’s main conclusions under Criterion 7. On the one hand, they found his lower extremity impairment and scarring are stroke-related; while, on the other hand, they found his sleep issues and spinal injuries are accident-related. Yet, as the applicant himself conceded, the panel correctly identified the standard for assessing whether an impairment can be considered accident-related, i.e., the “but for” test. This standard was detailed at paragraph 15:

It is well established law that the appropriate test to determine causation in accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121 (Sabadash). To satisfy this test, the applicant must prove on a balance of probabilities that “but for” the accident he would not have suffered the impairments which form the basis for his application for CAT status. In Sabadash, the Court sets out that pre-existing medical issues do not negate an insurer’s liability. Further, that the accident need not be the only cause of the impairment but a necessary cause. The Court further instructs the decision maker to conduct a robust analysis given the unique circumstances of the case at hand.

20The Sabadash test was applied consistently throughout the decision. From paragraphs 17 – 28, the panel reasoned that, while there were records showing some of the applicant’s injuries were accident-related (e.g., records from in and around the accident showed spinal sprain), there was an insufficient link drawn between the lower extremity impairment and the accident. By grounding their analysis in the correct legal test, the panel was entitled to reach these differing conclusions. The applicant has not demonstrated any errors with this approach.

21Second, the applicant takes issue with the causation analysis used by the panel to assess his claim for psychological impairments. He claims that correcting this erroneous chain of reasoning would require the Tribunal to remit his Criterion 8 claim for adjudication, as the panel declined to assess this claim based on their causation findings.

22I see no issues with this analysis. Best captured in their summary of Dr. Shahmalak’s report at paragraph 32, the panel assigned less weight to this assessment because they found there was insufficient evidence to connect the assessor’s diagnosis to the accident:

We do not accept Dr. Shahmalak’s rating of 30% WPI. Dr. Shahmalak testified that his diagnosis of Major Depressive Disorder is related to the applicant’s presentation during the assessment, and not related to a particular event, yet he concluded that the accident was the cause. We place little weight on Dr. Shahmalak’s ratings and diagnosis because he did not see the applicant between the time of the accident and the 2018 stroke, and the records do not support the applicant presented with mental health issues between the time of the accident and the 2018 stroke which was admitted by Dr. Shahmalak during cross-examination. Therefore, we find Dr. Shahmalak’s conclusion that the accident is the cause of the applicant’s psychological impairments was unsubstantiated. Nor was Dr. Shahmalak’s opinion supported by the testimony and CNRs of Dr. Yu.

23The panel then proceeded to review the evidence from several other healthcare practitioners, finding these records supported their conclusion that the applicant’s psychological complaints arose after his second stroke in 2018.

24In sum, I find the applicant’s complaints about the application of the causation test are better understood as a disagreement with the outcome of this analysis. Disagreement alone is not sufficient to meet the standard under Rule 18.2. The reconsideration process is not a venue to re-litigate issues and evidence addressed at first instance.

Respondent’s Physiatry Assessment

25Next, the applicant points to the panel’s criticism of the respondent’s physiatry assessor. Briefly, the panel found it was inappropriate for this assessor to delegate the assignment of his WPI rating to the author of the executive summary. However, despite this criticism, the applicant highlights how the panel still adopted “the 2% WPI produced via that very delegation”.

26The relevant part of the decision is found at paragraph 23:

Dr. Dessouki opined that the accident exacerbated the applicant’s pre-existing right hip osteoarthritis and deferred the WPI rating to Dr. Boucher, the doctor completing the executive summary who assigned a 2% WPI. Dr. Dessouki testified that he agreed with the WPI% rating assigned by Dr. Boucher. Ultimately, we find Dr. Dessouki’s report unhelpful because we agree with the applicant that the assessor responsible for completing the assessment should be assigning the WPI % not the doctor completing the executive summary. However, in light of our findings regarding causation we accept the 2% WPI and find it unnecessary to address Dr. Dessouki’s report further.

27I do not find the applicant has shown how this approach would trigger any of the criteria under Rule 18.2. Though I recognize there is little explanation for why the panel accepted the 2% WPI rating in the face of this delegation, the applicant has not shown how this choice had any impact on the outcome of the decision. In fact, as the panel had disregarded his own assessors’ WPI rating for these physical impairments, the respondent’s 2% WPI rating, in effect, assisted the applicant to try and reach the threshold for being deemed catastrophically impaired.

28The applicant adds on reply that there was materiality to this error, as “the causation chain the Panel used to justify that reliance is itself flawed.” As detailed above, I do not accept that the panel’s causation analysis is flawed.

Section 36 and the IRB Claim

29Finally, the applicant argues the panel focused exclusively on the substantive merits of his IRB claim, all the while ignoring his arguments for payment under s. 36(6) of the Schedule. Specifically, the applicant argues that, despite his compliance with the application process under s. 36, the respondent never provided a compliant denial of his IRB claim. Citing Tribunal case law where similar orders were issued, the applicant claims the panel erred by not ordering payment of the IRB based on the respondent’s breach of s. 36.

30The respondent concedes that the applicant “made this argument to some extent in his closing submissions”, but it argues that it would be improper for him to now use the reconsideration process “to expound upon an argument that was not fully made during the hearing.” The respondent also claims the applicant’s position “flies in the face of binding appellate authority”, citing, in part, Stranges v. Allstate Insurance Co. of Canada, 2010 ONCA 457, and Owusu v. TD Home & Auto Insurance Company et al, 2010 ONSC 6627. It argues the courts have found the onus remains on the insured person to show they meet the disability test under s. 5(1) of the Schedule. The applicant has not met this test, so his IRB claim must fail. Finally, the respondent submits it did provide a compliant denial.

31In reply, the applicant disputes the applicability of the respondent’s case law, arguing these cases involved compliant denials.

32There is no explicit discussion of any s. 36 arguments in the decision, though there are two brief references to the IRB application process at paragraphs 41 and 49 (emphasis added):

The applicant argues that he is unable to work because of his accident-related impairments, which is supported by his receiving Canada Pension Plan Disability Benefits (“CPP-D”), which has a more stringent legal test. The applicant submits that he provided all the requested documentation to the respondent. In addition, he did not make an election for Non-Earner Benefits (“NEB”) under s.5(2), and the alleged payment of NEB was at the discretion of the handling adjuster. Therefore, any payment of NEB, if any, does not preclude him from claiming an IRB.

In addition to the issue of causation, the applicant has also not established on a balance of probabilities that he meets the disability test for entitlement to either pre or post IRBs. Therefore, it is not necessary for an analysis to be completed regarding whether the applicant did or did not apply for IRB, or whether the payment of NEB precludes the applicant’s entitlement to IRB.

33It is well-accepted that tribunals are not expected to mention every minor comment made during a hearing, as their obligation to protect a party’s right to be heard is met by addressing the key arguments. However, when these references to the IRB application process are read alongside the respondent’s concession that there was some discussion of “the s. 36 argument”, I am satisfied that the applicant’s position on s. 36 was more than a throwaway remark. Rather, it appears to have been one of the grounds the applicant put forward to support his entitlement to the IRB.

34Further, while the respondent argues that there is no means to access payment of the IRB without first showing entitlement under s. 5(1), I do not agree. Section 36(6) states:

If the insurer fails to comply with subsection (4) or (5) within the applicable time limit, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate and ending, if the insurer subsequently gives a notice described in subsection (4) (b), on the day the insurer gives the notice.

35There is no ambiguity in this provision. If an insurer does not comply with the procedural steps required under s. 36(4) and s. 36(5), the insured person is entitled to payment of the specified benefit. I further note that the cases cited by the respondent address prior versions of the Schedule. As such, they are of limited assistance in assessing the specific and clear statutory language at hand.

36Finally, though the respondent claims it has provided the applicant with a compliant denial, this kind of determination is exactly what the applicant was seeking in the initial hearing. Without an explicit finding on this point in the decision, I find the applicant has established an error. I can then conclude that, if the panel had corrected this error and explicitly considered this IRB argument, the outcome of the decision would likely have been different.

37This error meets the criteria for granting a reconsideration, under Rule 18.2(b), as it relates to the IRB and the applicant’s arguments about s. 36(6) of the Schedule.

Rule 18.4 – Rehearing

38Having found the applicant established a ground for reconsideration, I will use my authority under Rule 18.4 to order a re-hearing on the issue of s. 36(6). Briefly, the applicant has demonstrated that the decision was rendered without a full account of his IRB arguments, so I am satisfied that the only appropriate remedy is to have the Tribunal render a decision on s. 36(6).

39Due to the limited scope of the re-hearing, I am satisfied that the matter can be re-heard by way of a written hearing. The need for an efficient conclusion to this proceeding leans in favour of allowing this remaining issue (along with the accompanying requests for an award and interest) to be decided in a focused and expeditious manner. I am also satisfied that the technical nature of s. 36 can be adequately addressed through written submissions and documents. Taken together, I see no prejudice facing the parties from ordering a written hearing, as it is an appropriate balance between the need for an efficient conclusion to this proceeding and the parties’ right to procedural fairness.

Rule 17 – Amendment Requests

40The applicant asked for two amendments to the decision, pursuant to Rule 17. I will not grant these requests.

41Rule 17 states:

The Tribunal may at any time:

Correct a typographical error, an error of calculation or similar error in its order or decision;

Clarify an order or decision that contains a misstatement or ambiguity, which is not substantive and does not change the order or decision.

42First, the applicant is asking the Tribunal to correct the inconsistency between the two dates listed for when his second stroke occurred, i.e., April 7 and April 8, 2018. Second, he is asking the Tribunal to “correct the chronology” at paragraphs 18 and 19 where the panel allegedly linked his first stroke to the accident.

43Starting with April 7 and April 8, 2018, I decline to use my authority under Rule 17 to amend the decision. Though I accept there is an inconsistency between these dates, the applicant has not provided sufficient details to allow me to amend the decision. Specifically, as opposed to saying which date the decision should include, the applicant is asking the Tribunal to “harmonize the stroke date… based on the record.” I find this kind of determination falls outside the limited scope of Rule 17.

44Turning to the second request, I again decline to use my authority. As noted above, I do not accept the applicant’s assertion that the panel found the accident on April 28, 2016 was caused by a stroke on June 2, 2016. The panel did not find the first stroke caused the accident, and so I see no reason to exercise my discretion under Rule 17.

CONCLUSION & ORDER

45The applicant’s request for reconsideration is granted, in part.

46Pursuant to Rule 18.4, the parties shall participate in a written re-hearing before a different adjudicator. The only issues in dispute for the re-hearing are:

i. Is the applicant entitled to an IRB in the amount of $400.00 per week from May 5, 2016, to date, pursuant to s. 36(6) of the Schedule?

ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

47The parties shall file with the Tribunal and serve their written submissions, evidence, and authorities according to the following timetable:

Submissions	Due Date	Page Limit
Applicant’s submissions, evidence and authorities:	30 calendar days following the release of the reconsideration decision	5 pages
Respondent’s submissions, evidence and authorities:	45 calendar days following the release of the reconsideration decision	5 pages
Applicant’s reply submissions or written notice that no reply submissions will be filed:	50 calendar days following the release of the reconsideration decision	2 pages

48No new evidence (including affidavits) may be relied upon by the parties. Only evidence that was exchanged between the parties in accordance with the deadlines set out in the case conference report and order (released February 4, 2025) may be relied upon by the parties in their written submissions.

49All submissions filed with the Tribunal must be double-spaced, 12-point, Arial or Times New Roman font with 1.5-inch margins and be indexed, bookmarked/tabbed and consecutively paragraph and page numbered. Submissions must make specific reference to the evidence and authorities by tab and page number.

50The page limits are exclusive of evidence and authorities. The hearing adjudicator has the discretion to determine whether to consider submissions that do not comply with the filing requirements.

51Unless specifically modified in this reconsideration decision, all prior orders of the Tribunal remain in effect.

52I am not seized.

53I decline to grant the applicant’s requested amendments, pursuant to Rule 17.

Craig Mazerolle Vice-Chair