Vevian Badawi v. Aviva Insurance Canada, 2025 CanLII 129104

Citation: Badawi v. Aviva Insurance Canada, 2025 ONLAT 23-013008/AABS-R

RECONSIDERATION DECISION

Before: Tyler Moore, Vice-Chair

Licence Appeal Tribunal File Number: 23-013008/AABS

Case Name: Vevian Badawi v. Aviva Insurance Canada

Written Submissions by:

For the Applicant: Terio Francis, Counsel

For the Respondent: Geoffrey Keating, Counsel

OVERVIEW

1On September 11, 2025, the applicant requested reconsideration of the Tribunal’s decision dated August 20, 2025 (“decision”).

2The Tribunal found that the applicant was entitled to the disputed psychological assessment and the disputed line of the proposed driving reintegration assessment, plus interest. It further found that the applicant was not entitled to income replacement benefits (“IRB”) beyond those already paid, and that she was not entitled to the other medical and rehabilitation benefits 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 seeks reconsideration pursuant to Rule 18.2(a) and (b). The applicant seeks an order setting aside the Tribunal’s decision (“decision”) and to find that she is entitled to the denied benefits. In the alternative, she is asking the Tribunal to order a rehearing before a different adjudicator.

5The respondent submits that the request for reconsideration should be dismissed.

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) – Material Breach of Procedural Fairness

8I find that the applicant has not established grounds for reconsideration under Rule 18.2(a).

9The applicant submits that the Tribunal breached procedural fairness by admitting and relying on late-served surveillance evidence. Specifically, the Tribunal accepted the respondent’s claim of “inadvertence” for not serving a surveillance report dated June 11, 2024 until November 14, 2024, which was over four months late according to the case conference report and order (“CCRO”). This evidence was only served on the applicant 34 days before her initial written submissions were due. According to the applicant, the Tribunal was procedurally unfair in admitting the surveillance on the basis that prejudice to the respondent from exclusion outweighed her prejudice.

10The applicant submits that she had no chance to retain and instruct a surveillance/functional expert, obtain and review the raw footage and underlying logs, or obtain opinions from treating providers on what the surveillance clips do not show.

11The applicant further submits that the Tribunal’s analysis turns on prejudice from the lost opportunity to test the evidence, and that edited surveillance is not ‘within the applicant’s knowledge’ and requires raw-video scrutiny for which the opportunity was lost by late service. Once admitted, the Tribunal used the late materials to reject central issues in dispute, including the IRBs and the chronic pain assessment.

12The respondent submits that the applicant has reiterated the arguments made in her initial motion materials to exclude the surveillance evidence, which were considered in the Tribunal’s decision. The applicant’s reconsideration submissions also contain alleged facts without corresponding evidentiary support.

13According to the respondent, the surveillance was provided to the applicant 34 days before her initial submissions were due, which does not constitute a ‘trial by ambush’. The respondent argues that the applicant has not explained in her submissions why 34 days was insufficient to retain a surveillance/functional expert, obtain and review raw footage, or obtain opinions from treating providers on what the surveillance does not show. The respondent also argues that it has not received any request for the unedited surveillance footage to date.

14The respondent submits further that the Tribunal’s admission of the surveillance evidence had little apparent impact on the decision, as the decision confirms that the ruling with respect to ongoing IRBs was premised on preferring the IE assessor opinions at paragraphs [42] and [43] of the decision. Given that the surveillance evidence was not the primary reason for the Tribunal denying the applicant’s entitlement to ongoing IRBs, the respondent argues that any concerns with respect to the Tribunal admitting the surveillance into evidence are immaterial to the final outcome of the decision.

15I find that the Tribunal considered the applicant’s request to exclude the respondent’s late-filed surveillance evidence from paragraphs [9] to [18] of the decision. I also find that the Tribunal considered the impact to both parties in admitting the surveillance, and it analyzed multiple factors in coming to the decision to deny the applicant’s motion.

16At paragraphs [16] to [18] of the decision, the Tribunal weighed the prejudice to both parties. It also considered the time between the late-filed surveillance and the applicant’s initial submission deadline; the relevance of a case cited by the respondent, i.e., Badawi v. Aviva General Insurance, 2024 CanLII 115392 (ON LAT) (“Badawi”); and the respondent’s reason for the delay. The Tribunal also weighed the potential prejudice against the need to strictly adhere to the timelines established in the CCRO in this specific case.

17Procedural fairness is based on the principle that parties have the right to be heard, and part of this right involves knowing the case that they need to meet during a hearing.

18I find that the fact that the Tribunal accepted the respondent’s reason for the delay at paragraph [17] does not constitute a material breach of procedural fairness. I also agree that the applicant’s submissions do not set out how 34 days of notice gave her no chance to retain and instruct a surveillance/functional expert, obtain and review the raw footage and underlying logs, or obtain opinions from treating providers on what the surveillance clips do not show to test the evidence. I find that the applicant has led no evidence as to what attempts, if any, were made to secure these items.

19With respect to the Tribunal’s analysis of whether the surveillance would be within the applicant’s knowledge at paragraph [16] of the decision, I find that this, and the Tribunal’s consideration of Badawi, are not what the decision turns on. At paragraphs [15] and [16] of the decision, the Tribunal indicated that it was not bound by Badawi, but that it found Badawi to be instructive. Specifically, “if the applicant argued that in Badawi that 14 days was sufficient time to respond to new evidence, it would be inconsistent for the applicant to argue now that 34 days is insufficient time to respond.” The Tribunal also considered the distinction between medical evidence that might require a review by medical experts and surveillance that would not be new information to the applicant, to distinguish the facts of this case from Badawi. Again, I do not find that the applicant has shown that this finding is a material breach of procedural fairness.

20There is a high threshold to establishing grounds for reconsideration pursuant to Rule 18.2. I find that the decision to admit the late-filed surveillance reflects that the applicant’s arguments were heard, and that the Tribunal considered the issue itself and the extent to which the 34 days of notice impacted the applicant’s ability to present her case. The decision also demonstrates that the Tribunal weighed any potential prejudice to both the applicant and respondent.

21For these reasons I find that the applicant has not established grounds for reconsideration under Rule 18.2(a).

18.2(b) – Error of Law or Fact

22I find that the applicant has not established grounds for reconsideration under Rule 18.2(b).

Post-104 Week IRBs

23The applicant submits that the Tribunal erred in law and fact in denying the applicant’s claim for post-104 week IRBs, because it identified no specific, reasonably suited occupation with defined duties, hours, productivity, training, or accommodation requirements in its decision, and instead inferred employability from IE assessments, episodic daily activities and late-served surveillance which misstates the legal test as set out in s. 6(2)(b) of the Schedule.

24According to the applicant, the Tribunal preferred the IE assessments, because they “addressed any employment”. At the same time, it discounted treating evidence for not using the words “complete inability”, thereby elevating form over substance. The applicant argues that the Tribunal’s task was to map proven limitations onto the real demands of an identified job for which the applicant is reasonably suited, and no such mapping was done.

25The applicant also argues that the multi-disciplinary opinions were internally inconsistent, and the Functional Abilities Examination (the duration of which was not provided) is not evidence of sustained endurance or work pace over a prolonged period. The Tribunal also treated two brief edited clips of surveillance as proof of work capacity, which again misstates the legal test because they do not establish continuity, duties, or sustainability.

26The respondent submits that at paragraph [42] of the decision the Tribunal found that the applicant was not entitled to post-104 week IRBs primarily on the basis that the IE assessors considered whether the applicant was able to return to any type of work for which she was reasonably suited, while the opinions the applicant relied on only commented on whether she was able to return to her pre-accident work. The respondent submits that the Tribunal’s conclusion was not primarily premised on the late-filed surveillance, and that it applied the correct legal test. According to the respondent, the suitability of alternative occupations, as outlined by the IE assessors was not challenged with a contrary opinion by the applicant, and the applicant did not lead sufficient expert evidence suggesting that she was incapable of returning to any work for which she was reasonably suited.

27The respondent argues that the applicant’s submissions ignore the issue of onus, and that an analysis of whether the applicant can carry out any employment, as opposed to their pre-accident employment, does not constitute an elevation of ‘form over substance’. The onus was on the applicant to lead sufficient evidence to establish that she met the test for post-104-week IRBs, and she did not. The respondent submits that as a result, this has led to her criticism of the respondent’s IE reports. As noted in the decision, the applicant’s level of function observed during surveillance was contradictory to what was noted by anesthesiologist and pain management specialist, Dr. Brown, in his s. 25 report.

28I find that the applicant is asking the Tribunal to re-weigh the evidence submitted at the initial hearing and that this is an attempt to re-argue her case upon reconsideration. Although the applicant disagrees with the Tribunal’s reasoning and findings, this is not a ground upon which the Tribunal can grant a request for reconsideration under Rule 18.2(b). Rather, a party must establish a specific legal or factual error, as well as how this error would likely have impacted the outcome of the decision.

29At paragraphs [42] to [45] of the decision, I find that the Tribunal applied the correct legal test for entitlement to the post-104-week IRBs. It also weighed and resolved conflicting IE evidence, and it considered the late-filed surveillance footage as one part of its overall analysis of the evidence. For example, at paragraph [42] of the decision, the Tribunal addressed why it preferred certain IE assessments, and it reiterated how this applied to the post-104-week test for IRB entitlement. At paragraph [43] of the decision, the Tribunal considered the late-filed surveillance as one component of its overall analysis, which it is entitled to do.

30At paragraphs [44] and [45] of the decision, the Tribunal considered job training and job market conditions in relation to “the types of employment proposed by the respondent’s assessors”, and noted that “the applicant did not direct the Tribunal to any part of the Schedule or to any authorities where the general unemployment rate would be a factor in determining an applicant’s eligibility for post-104-week IRBs under s. 6(2).”

31Although not addressed by the parties, I rely on Dooman v. TD Insurance Co., 2025 ONSC 184, where the Court found at paragraph 36 that:

“The Tribunal was free to accept all, none, or some of the hearing evidence, including any expert evidence. While a trier of fact is obliged to consider all of the evidence before it, it is not required to accept all of a medical expert’s evidence merely because there is no contrary expert testimony tendered on behalf of the other party.”

32I find that The Tribunal is under no obligation to accept at face value the findings or opinions of medical professionals, and that the applicant has the evidentiary onus at first instance.

33For these reasons, I find that the applicant has not demonstrated that the Tribunal erred in fact or law in its decision, with respect to the applicant’s entitlement to post-104-week IRBs, such that the Tribunal would likely have reached a different result had the error not been made.

Chronic Pain Assessment

34The applicant submits that the Tribunal did not give weight to the CNRs of her treating physicians who documented ongoing pain, as well as the need for pacing and the proposed treatment plan itself. The applicant reiterates that late, excerpted surveillance could not reliably rebut the medical record and warranted little weight.

35The respondent submits that the Tribunal’s decision did not make a legal error, and as noted, the applicant’s level of function observed during surveillance was entirely contradictory to what was noted by Dr. Brown. The Tribunal assigned limited weight to Dr. Brown’s report as a result. The respondent also submits that the Tribunal gave weight to the CNRs of the applicant’s treating physician.

36Again, I find that the applicant is asking the Tribunal to re-weigh the initial hearing evidence and that this is an attempt to re-argue her case upon reconsideration. The reconsideration process is not an opportunity for a party to re-argue its case.

37With respect to the Tribunal’s consideration of the CNRs from the applicant’s treating physicians, I find that the Tribunal considered the CNRs of Dr. Kodsi at paragraph [70] of the decision. It found that:

…“the CNRs of Dr. Kodsi do not demonstrate the need for a chronic pain assessment. In 10 visits from May 19, 2022 and February 22, 2024, Dr. Kodsi recommended physiotherapy, neck and back exercise, and Tylenol. The applicant did not direct me to any CNRs of Dr. Kodsi where he recommended stronger pain medication or other interventions associated with a medical diagnosis of chronic pain.”

38The applicant has not established that this finding constitutes an error of fact or law.

39The applicant has not pointed me to any error of fact or law in the decision, related to the proposed chronic pain assessment, that would warrant granting a request for reconsideration under Rule 18.2(b).

Psychological Services

40The applicant submits that the Tribunal erred in law by reducing s. 15 and s. 16 of the Schedule to a preference for in-vehicle desensitization over psychotherapy to better address the applicant’s symptoms. The applicant submits that the correct test should be whether proposed treatment is reasonable and necessary, which does not require proof that no other intervention could help.

41According to the applicant, evidence from Dr. Brunshaw, Dr. Kodsi, and Dr. Dief supports psychotherapy treatment for the applicant’s trauma-related symptoms, hypervigilance, low mood, and sleep disturbance, which a driving program alone cannot resolve.

42The respondent submits that it was Dr. Salerno, an expert psychologist, who opined that psychotherapy would not achieve the therapeutic efficacy of an in-vehicle desensitization program, given the applicant’s specific psychological presentation. This was cited in the Tribunal’s decision at paragraph [86].

43The respondent also submits that the applicant’s hearing submissions related to this issue were limited to indicating that she was entitled to the proposed treatment plan as it was “essential to address her psychological symptoms”. According to the respondent, the applicant is attempting to advance arguments that should have been advanced at the initial hearing.

44Once again, I find that the applicant is asking the Tribunal to re-weigh the evidence submitted at the initial hearing and that this submission is an attempt to re-argue her case upon reconsideration.

45I find that at paragraph [88] of the decision, the Tribunal set out why it preferred one IE assessment report over another, referred to the fact that “Ms. Ramnaraine does not distinguish clearly between the applicant’s pre-accident and post-accident psychological issues” in making recommendations, and found that “the applicant has not met her burden of demonstrating how the goals of the proposed psychological services would be met to a reasonable degree and that the overall costs of achieving them are reasonable compared to alternate therapies.”

46In its analysis, the Tribunal relied on Dr. Salerno’s report which recommended that “the applicant would be better served by an in-vehicle driver desensitization program with a certified driving instructor” and that “psychological counselling sessions would not achieve the therapeutic efficacy of an in-vehicle desensitization program, given the applicant’s specific psychological presentation.”

47I find that the Tribunal’s decision addresses whether the proposed psychological services were reasonable and necessary, and that the Tribunal’s weighing of the evidence does not constitute an error of law or fact. I also note that the Tribunal found at paragraph [97] of the decision that the applicant was entitled to the full amount for the driver reintegration assessment, as recommended by Dr. Salerno, that was an issue in dispute on the application.

Chiropractic and Massage Therapy Services

48The applicant submits that the Tribunal erred in law and fact by treating pain relief as an insufficient goal, as well as by converting the analysis into a preference for cheaper medication alternatives. According to the applicant, the question is whether the goals, method of measuring those goals, and proportionality of cost are reasonable and necessary to advance activities of daily living and symptom control, and not whether medication might be less expensive. The applicant also submits that the Tribunal erred by finding that there was no evidence “how the goals...would be met to a reasonable degree.”

49The applicant argues that the proposed treatment plans set functional goals and evaluation by response to treatment and re-assessment. The CNRs document ongoing pain for which manual therapy provided symptomatic benefit. The applicant also argues that there is no IE that analyzes these specific treatment plan goals or cost proportionality.

50The respondent submits that the applicant has not accurately captured the conclusions of the Tribunal’s decision. At paragraph [61] of the decision, the Tribunal does not state that pain reduction is an insufficient treatment goal. The respondent submits that the decision concludes that the test for reasonableness and necessity has not been satisfied. According to the respondent, the decision finds that the proposed treatment plan is not reasonable and necessary as it has not established that the provision of further passive modality type treatment would meet the goal of pain reduction to a reasonable degree, given that it has not done so to date, as noted at paragraph [58] of the decision.

51The respondent argues that the Tribunal’s analysis with respect to more affordable options regarding pain relief, given that the proposed treatment has not resulted in any meaningful pain reduction to date was appropriate, as the Tribunal was required to examine whether the overall costs of proposed treatment were reasonable for achieving the goal of pain reduction.

52I agree with the applicant that pain relief itself can be a sufficient goal of treatment. At paragraph [58] of the decision, however, I find that the Tribunal considered that “while Dr. Kodsi continued to recommend the same treatment over a period of almost 2 years, there was no indication that the treatment was attaining the desired outcome of pain reduction.”

53At paragraph [60] of the decision, the Tribunal addresses the fact that there were no IEs related to the proposed chiropractic and massage therapy plans. It did not draw any adverse inference from this absence, because the IEs of Dr. Salerno and Dr. Oshidari concluded that “another IE for the chiropractic and massage therapy plans would be unnecessary” based on their own assessment findings.

54I find that the Tribunal’s decision that the applicant has not met her onus of establishing that the proposed treatment plans are reasonable and necessary was based on its consideration of several factors. Those factors included a lack of documentation specifically recommending ongoing chiropractic and massage therapy treatment after 2022; non-specific physical treatment recommendations by Ms. Ramnaraine; a lack of evidence as to how the goals of the proposed treatment would be met to a reasonable degree; the absence of IEs that specifically address the proposed treatment plans; and the fact that the applicant has not demonstrated how the overall cost of achieving the treatment plan goals in reasonable, given potentially less expensive alternatives, such as medication.

55For all of these reasons, I find that the applicant has not demonstrated that the Tribunal erred in fact or law in its decision such that it would likely have reached a different result had the error not been made. The applicant is, in effect, asking the Tribunal to re-weigh the evidence submitted for the initial hearing. As a result, the applicant’s request for reconsideration under Rule 18.2(b) is dismissed.

CONCLUSION & ORDER

56The applicant’s request for reconsideration is dismissed.

Tyler Moore

Vice-Chair