RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 23-013101/AABS
Case Name: Akilan Kanagaratnam v. TD General Insurance Company
Written Submissions by:
For the Applicant: Masood Fariad, Counsel
For the Respondent: Jagdeep Khela, Counsel
OVERVIEW
1On September 15, 2025, the applicant requested reconsideration of the Tribunal’s decision released September 12, 2025 (“decision”).
2Stemming from an accident on April 1, 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 written hearing. In the decision, the adjudicator found the applicant was not entitled to an income replacement benefit (“IRB”), two treatment plans, an award, or interest. A third treatment plan was found to have been removed as an issue in dispute.
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) to support his request for reconsideration, though he also makes several arguments based on alleged breaches of procedural fairness. He is seeking an order setting aside the decision and finding entitlement to the disputed benefits. In the alternative, the applicant requests a rehearing.
5The respondent asks the Tribunal to dismiss the request.
RESULT
6The applicant’s request for reconsideration is granted.
7Pursuant to Rule 18.4, the decision is cancelled. The matter shall be reheard based on the parties’ submissions and evidence from the written hearing.
ANALYSIS
8The 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.
9I find the applicant has established grounds for reconsideration, pursuant to Rule 18.2(b).
10The applicant raises several errors and alleged breaches of procedural fairness. Though I have only found several of these grounds are made out, I will address them all in turn. The matter will be reheard based on the submissions and evidence presented during the written hearing, so I find these reasons may be of assistance to the new adjudicator reviewing the matter.
Review of the Medical Evidence
11The applicant claims the Tribunal erred in its interpretation of the clinical notes and records from his treating physician, Dr. Christopher Sun. Specifically, while the Tribunal states these records did not link his injuries to the accident, the applicant highlights a March 18, 2023 letter from Dr. Sun to challenge this finding. Similarly, the applicant alleges that the Tribunal did not account for the parties’ psychological evidence, namely, an expert assessment report and progress notes from his assessor, Dr. Leon Steiner, psychologist.
12Dr. Sun’s clinical notes are primarily discussed at paragraph 12 of the decision (emphasis added):
I find that the CNRs of Dr. Sun do not support the applicant’s claim that he is entitled to IRB. While the CNRs do have ongoing reporting of pain, this reporting is not directly tied to the subject accident. An example of this is found on a May 15, 2023, visit that reports whiplash, and the applicant’s request for an increase in dosage for Naproxen. There is no attribution made in the CNRs that this reporting of whiplash is accident related. Similarly, in discussion of the SLAP tear, bursitis and tendinopathy on July 19, 2023, Dr. Sun does not make any attribution of these injuries to the subject accident. The CNRs discuss remote trauma found on an X-ray on September 19, 2023, related to an injury the applicant suffered 7 years ago. That entry also notes that the applicant’s pain is improving. The CNRs do not discuss any specifics about the applicant’s inability to perform the essential tasks of his employment.
13In reviewing the letter from March 18, 2023, I find the Tribunal’s description of Dr. Sun’s records is not accurate. Drafted in response to a question from applicant’s counsel about whether the applicant was “suffering a substantial inability to perform the essential tasks of his or her self-employment, as a result of the accident”, Dr. Sun wrote: “Yes he is unable to use his [right] arm and shoulder in an effective manner including holding objects for fine motor control such as writing implements”. The applicant highlighted this letter in his initial submissions (at page 4): “This letter directly supports the Applicant's claim of a substantial inability to perform the essential tasks of their pre-accident employment”.
14Therefore, to claim that the applicant did not present any records from Dr. Sun that discussed his ability to perform the essential tasks of his pre-accident employment is not an accurate summary of the evidentiary record. Also, this letter challenges the Tribunal’s finding that Dr. Sun did not draw any connections between the applicant’s injuries and the accident.
15Turning to the second stage of the Rule 18.2(b) test, I am satisfied that, by overlooking a key part of the applicant’s documentary evidence, this error would likely have impacted the outcome. The Tribunal placed significant weight on its determination that Dr. Sun did not connect the applicant’s injuries to the accident. Explicitly addressing a record that made this connection would likely have impacted the outcome of this issue.
16I am also satisfied that the applicant has demonstrated an error concerning the Tribunal’s handling of the psychological evidence. In particular, I note that the applicant referenced Dr. Steiner’s report and records in several spots in his initial submissions to support his entitlement to both the IRB and the treatment plans. However, despite these references, there is no discussion of Dr. Steiner’s evidence in the decision.
17It is well-settled that a decision-maker is not expected to address every piece of evidence presented during a hearing, but they are required to address every key piece of evidence presented by the parties. The applicant’s written submissions make several references to Dr. Steiner’s opinions, including how his psychological assessment report corroborated his alleged limitations. By overlooking a key part of the applicant’s evidence, I am again satisfied that the Tribunal erred in its understanding of the case. I can then further conclude that an error involving this key aspect of the applicant’s case would likely have impacted the outcome of both the IRB and the treatment plans.
18The respondent challenges this position by claiming that the applicant is, in effect, asking the Tribunal to re-weigh the evidence. Further, when discussing the letter from Dr. Sun, the respondent asserts that “the evidence must be looked at in its totality”, such that it is not enough for the applicant to point to one document to establish an error under Rule 18.2(b).
19I do not agree with the respondent’s characterization of the applicant’s request. He is not asking the Tribunal to re-open his document brief and come to a different interpretation of his reports and records. Rather, for Dr. Sun’s evidence, he is seeking to have this evidence understood correctly, particularly as it relates to the question of causation. Then, for Dr. Steiner, he wants this evidence to be explicitly considered in the decision, especially as it was highlighted several times in his submissions. Both these requests fall squarely within the ambit of Rule 18.2(b).
20In sum, I find the applicant has established errors that meet the standard of Rule 18.2(b). These errors affect both the IRB and the two treatment plans in dispute.
Respondent’s IE Reports
21The applicant challenges the Tribunal’s reliance on the respondent’s insurer examination (“IE”) reports. The applicant argues that, while the Tribunal stated that all these reports found he was not entitled to the IRB, the reports from Dr. Andrew Holland, chiropractor, and Dr. Farshid Tabloie, orthopedic surgeon, did not, in fact, take a position on this issue. The applicant cites several Divisional Court cases to support his argument: i.e., Plante v. Economical Insurance Company, 2024 ONSC 7171; Vivekanantham v. Certas Direct Insurance Company, 2024 ONSC 6198; and Shahin v. Intact Insurance Company, 2024 ONSC 2059.
22I accept that the Tribunal erred in its description of the reports from Drs. Holland and Tabloie, but I do not find this error would likely have impacted the outcome of the IRB.
23The Tribunal assessed the relative merits of the respondent’s IE reports from paragraphs 14 – 18. It found that several of these assessors opined that the applicant did not meet the IRB entitlement test, namely, Dr. Debra Mandel, psychologist, and Dr. Nagib Yahmad, neurologist. On the other hand, though the reports from Drs. Holland and Tabloie contained objective findings that did not support entitlement to the IRB, these assessors did not ultimately render an opinion one way or the other on the question of entitlement.
24Despite this distinction, the Tribunal noted at paragraph 19 that “all” of these reports made explicit findings about IRB entitlement (emphasis added):
…Conversely, the respondent has provided multiple s. 44 reports that find that the applicant does not suffer substantial inability to perform the essential tasks of that employment. In both Dr. Holland’s and Dr. Tabloie’s report [sic], while they did not make a final clinical diagnosis that was based partially on the applicant’s refusal of some of the testing, and in Dr. Tabloie’s s. 44 consistently not being provided CNRs and medical imagine [sic]. Taken together, I was more persuaded by the s. 44 reports due to all of them consistently not finding that the applicant suffered substantial inability to perform the essential tasks of that employment and the lack of medical evidence from the applicant that would argue those findings.
25The final line in this quotation is incorrect. Some of the IE reports found the applicant did not meet the IRB entitlement test, but not “all of them”.
26Yet, despite this minor oversight, it is clear from both the detailed review of the evidence conducted at paragraphs 14 – 18, as well as the reference to “multiple” (not all) IE reports at the start of this quotation, that the Tribunal had a correct understanding of what these experts concluded. Therefore, even though the applicant has shown a factual error occurred, I am not satisfied that it would likely have impacted the outcome. Rather, I am satisfied that the Tribunal correctly understood the contents of the IE reports.
27Turning to the applicant’s jurisprudence, I do not find these Divisional Court cases impact my findings. The applicant claims these cases show the Tribunal erred by relying on “inconclusive and/or unreliable assessments”. Aside from the fact that these cases involved the ability to test evidence through cross-examination (something that was not a part of this written hearing), I find the applicant’s position that the IE reports were “unreliable” is a disagreement with a factual finding. As noted above, the reconsideration process is not a venue for asking the Tribunal to re-weigh evidence considered at first instance. Decision-makers are entitled to assess the merits of a party’s evidence, and—unless this analysis is shown to be legally or factually incorrect—the weight assigned to the evidence will not be disrupted on reconsideration.
Negative Inference about Treatment
28Next, the applicant argues that the Tribunal “erred by drawing a negative inference” from his “deferred or intermittent treatment”.
29The applicant does not highlight any specific parts of the decision where a “negative inference” was drawn about his treatment regimen. As the requesting party, the applicant has the onus on reconsideration. He has not met his onus with this argument.
30The applicant then disputes the Tribunal’s claim that he made no submissions about the two disputed treatment plans, i.e., the chiropractic treatment plans dated April 11 and September 21, 2022. Though he accepts that “no specific submissions were made in respect of the above mentioned OCF-18s”, the applicant points to arguments made in both sets of his written hearing submissions where he highlighted evidence to show the reasonable and necessary nature of ongoing treatment. He claims the finding that he did not present arguments in support of the disputed plans is both erroneous and procedurally unfair.
31I do not accept this argument. First, for the plan dated April 11, 2022, I note that the Tribunal did not take issue with the lack of specific submissions about the plan itself, but rather the Tribunal highlighted the lack of submissions the applicant made in response to its partial approval (at paragraphs 25 + 26):
The respondent submits that it partially approved this treatment plan up to the guideline limit of $2,200.00 for a treatment plan. This amends the amount in dispute to $1,422.31 ($3,622.31-$2,200.00). The respondent provided a copy of correspondence sent to the applicant indicating partial approval of this treatment plan…
The applicant has made no submissions regarding the outstanding balance or their entitlement to the outstanding balance for this treatment plan.
32There are no arguments in the applicant’s reply that address this partial approval, nor is there any explanation for why he is entitled to the remaining amount in dispute. I see no error or breach of procedural fairness in this regard.
33Turning to the plan dated September 21, 2022, I again find the applicant has not established an error or breach of procedural fairness. As noted at paragraph 30 of the decision, the Tribunal effectively reached the same conclusion that the applicant has presented in his reconsideration submissions, i.e., no specific arguments were made about the different treatment plans, but rather he made general comments about the reasonable and necessary nature of ongoing treatment. Considering this is the perspective endorsed by the applicant in his reconsideration submissions, I see no reason to disrupt this finding.
Award Claim and Reply Submissions
34In the closing sections of his reconsideration submissions, the applicant briefly raised two other grounds. First, the applicant challenges the Tribunal’s finding that, because there were no benefits found to be payable, there was no need to assess his award claim. The applicant challenges this position by citing two Tribunal decisions, i.e., S.M. v. Unica Insurance Inc., 2020 ONLAT 18-010164/AABS (“Unica”) and Applicant v. Portage La Prairie Mutual Insurance Company, 2019 CanLII 101649 (ON LAT) (“Portage”).
35Beyond the fact that I am not bound by prior Tribunal cases, I do not find they are persuasive. First, while the applicant does not specify which of the two Unica decisions he is relying upon, I note that the award granted in the initial decision was eventually overturned on reconsideration: see S.M. v Unica Insurance Inc., 2020 CanLII 61460 (ON LAT). Then, in Portage, there was a finding that the applicant was entitled to payment of a benefit, and this benefit formed the basis of the award.
36Second, the applicant alleges the Tribunal breached his right to procedural fairness, because it is not clear whether it reviewed his reply. I do not find the applicant has shown how this ground meets the standard of Rule 18.2(a), as he had the onus to establish entitlement to the disputed benefits at first instance. Put another way, even if the Tribunal did not weigh the merits of the applicant’s reply, it was still necessary for him to meet his onus through the arguments and evidence contained in his initial submissions.
Rule 18.4 – Cancelling the Decision
37The applicant has established grounds for reconsideration under Rule 18.2, so I must determine what the appropriate remedy is under Rule 18.4. Though the applicant is seeking an order finding he is entitled to the benefits in dispute, I find the nature of the errors established above show that the most appropriate way to proceed is to have the matter reheard by a new adjudicator. This review will be based on the evidence and submissions from the written hearing.
38The applicant has shown that some of his evidence was not properly understood by the Tribunal, while other records were not explicitly considered in the resulting decision. These errors can be adequately addressed by having a new adjudicator review the existing evidence and submissions from the written hearing. I see no need for fresh evidence and arguments from the parties, and this arrangement will allow the matter to be resolved in a timelier fashion.
CONCLUSION & ORDER
39The applicant’s request for reconsideration is granted.
40Pursuant to Rule 18.4, the decision is cancelled. The matter shall be reheard based on the parties’ submissions and evidence from the written hearing.
41I am not seized.
Craig Mazerolle
Vice-Chair
Released: December 11, 2025