Harpreet Grewal v. Peel Mutual Insurance Company, 2025 CanLII 13581

Citation: Grewal v. Peel Mutual Insurance Company, 2025 ONLAT 23-004899/AABS-R

RECONSIDERATION DECISION

Before: Lindsay Lake, Vice-Chair

Licence Appeal Tribunal File Number: 23-004899/AABS

Case Name: Harpreet Grewal v. Peel Mutual Insurance Company

Written Submissions by:

For the Applicant: Imtiaz Hosein, Counsel

For the Respondent: Jonathan Schrieder, Counsel

OVERVIEW

1On November 11, 2024, the applicant requested a reconsideration of the Tribunal’s decision dated October 21, 2024 (decision).

2In the decision, the Tribunal dismissed the application and found that the applicant failed to prove on a balance of probabilities that she sustained a catastrophic (CAT) impairment as a result of the accident and that she was not entitled to any of the 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; and/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.

4In this matter, the applicant submitted that the Tribunal acted outside of its jurisdiction, committed a material breach of procedural fairness, and/or that there is evidence that was not before the Tribunal when rendering its decision that could not have been obtained previously by the applicant and would likely have affected the result.

5The respondent submitted that the request for reconsideration was an attempt by the applicant to “circumvent” the Tribunal’s authority and effectively obtain an adjournment which was requested and denied by the Tribunal at the hearing. The respondent submitted that the reconsideration request should be dismissed.

6In reply, the applicant asks that the Tribunal “sanction” the respondent with costs and “issue a caution” against respondent’s counsel.

RESULT

7The applicant’s reconsideration request is granted. The decision is cancelled and a new hearing is ordered.

8The applicant’s request for costs and a “caution” 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.

A reconsideration is granted under Rule 18.2(c)

10I find that there is evidence that was not before the Tribunal when it rendered its decision that could not have been obtained previously by the applicant and would likely have affected the result such that a reconsideration is warranted under Rule.18.2(c).

a) Events at the hearing

11On August 12, 2024, the first day of the hearing in this matter, applicant’s counsel made several procedural requests which included two oral requests for an adjournment. The first request for an adjournment was because the applicant could not proceed due to medical reasons. The second adjournment request was on the basis of “Human Rights considerations” and to seek time to obtain medical direction on how the applicant “is going to be able to testify” given applicant’s counsel’s concerns about her personal safety and psychological condition. These requests were denied.

12On August 13, 2024, the second day of the hearing, applicant’s counsel raised concerns regarding the applicant’s capacity to instruct counsel for the first time. While applicant’s counsel stated at the hearing that he had “concerns of her capacity to even give me instructions” (transcript, August 13, 2024, page 12), he continued to follow the applicant’s instructions throughout the remainder of the hearing. For example, applicant’s counsel brought an oral motion requesting that the hearing adjudicator recuse himself on the basis of bias stating, “I believe that she has the ability to give me those instructions in bringing this motion to ask you to recuse yourself” (transcript, August 13, 2024, page 33). Additionally, applicant’s counsel followed the applicant’s instructions when he refused to proceed with the hearing stating, “my client’s instructions to me are to just stop” (transcript, August 13, 2024, page 42). In following these instructions, applicant’s counsel made no opening submissions, called no witnesses, and did not tender any evidence into the hearing record. As a result, the Tribunal dismissed the application on the second day of a ten-day hearing.

b) The new evidence

13The applicant submits that an August 13, 2024 Consultation Report of Dr. Lionel Gerber, the applicant’s treating psychologist, is evidence that was not before the Tribunal when it rendered it decision that would have likely affected the Tribunal’s dismissal of the application such that a reconsideration is warranted under Rule 18.2(c).

14In his August 13, 2024 report, Dr. Gerber diagnosed the applicant with a persistent, somatic symptom disorder with predominant pain, a major depressive disorder, a posttraumatic stress disorder, and ongoing symptoms consistent with a post-concussion syndrome. Dr. Gerber further opined that because of her psychiatric diagnoses and emotional state, the applicant lacked the capacity to prepare for and attend the hearing, and also to adequately instruct her counsel on August 11, 12, and 13, 2024.

15The applicant submits that Dr. Gerber’s report would likely have affected the dismissed application as the hearing “would not have proceeded with the applicant lacking capacity.”

16I find that the hearing adjudicator had no evidence before him to substantiate applicant’s counsel’s submissions regarding the applicant’s capacity and counsel’s submissions are not evidence. Further, I accept that Dr. Gerber’s August 13, 2024 report was not before the Tribunal when it rendered its decision, as it was obtained after the hearing concluded. I also find that Dr. Gerber’s report could not have been obtained prior to August 13, 2024 because it was the severity of the applicant’s emotional state, according to Dr. Gerber, immediately before the hearing and during the hearing that led to his opinion regarding the applicant’s lack of capacity to instruct counsel. Dr. Gerber’s report is evidence that supports applicant’s counsel’s submissions that the basis for his concerns regarding the applicant’s capacity were as a result of events that transpired over the 48 hours leading up to the start of the hearing.

17I acknowledge the respondent’s position that the applicant did not provide confirmation that Dr. Gerber is qualified to conduct assessments of capacity under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (SDA). The respondent also submitted that Dr. Gerber is not included on the Ontario List of Capacity Assessors maintained by the Capacity Assessment Office, his assessment did not align with the Guidelines for Conducting Assessments of Capacity, and that Dr. Gerber failed to clarify.

18I agree with the applicant, however, that the SDA governs an individual’s capacity to manage property and personal care, not an individual’s capacity to instruct counsel: Sylvester v. Britton, 2018 ONSC 6620 at para. 58. Therefore, the respondent’s submissions regarding Dr. Gerber’s qualifications regarding the SDA to conduct a capacity assessment as to capacity to instruct counsel are not persuasive in the circumstances.

19The respondent also submitted that the applicant has not taken any steps with respect to her lack of capacity in terms of appointing a guardian or power of attorney. Furthermore, the respondent submitted that Dr. Gerber’s report only states that the applicant lacked capacity up to August 13, 2024, and that Dr. Gerber failed to clarify whether the applicant had capacity after August 13, 2024. It is the respondent’s position that there is no evidence that the applicant lacked capacity to attend any of the other eight days of the hearing to testify.

20While I agree that the applicant has not taken any further steps to address her capacity issues, and I do not have any other evidence before me that is more current than Dr. Gerber’s August 13, 2024 report to speak to her capacity beyond that time, the focus on a reconsideration request is narrow and limited to the grounds under Rule 18.2. I accept that had the hearing adjudicator had Dr. Gerber’s August 13, 2024 report as some evidence of the applicant’s capacity before him at the hearing, it likely would have affected the result of the application being dismissed.

21Thus, I find that Dr. Gerber’s August 13, 2024 is evidence that was not before the Tribunal when it made its decision, that it could not have been obtained previously by the applicant, and that had it been before the Tribunal when it dismissed the application it would likely have affected the result. As such, I find that a reconsideration of the decision is warranted under Rule.18.2(c).

22As I have granted the applicant’s request for a reconsideration under Rule 18.2(c), I do not need to consider the applicant’s submissions regarding her request for a reconsideration under Rule 18.2(a).

The applicant’s request for costs is denied

23In her reply submissions, the applicant has requested her costs of the reconsideration.

24Pursuant to Rule 19 of the Rules, a party may make a request to the Tribunal for costs where they believe that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Costs requests shall set out the amount being requested, the reasons for the request, and the particulars of the other party’s conduct that are alleged to be unreasonable, frivolous, vexatious, or in bad faith.

25I find that the applicant’s request for costs is not properly before me as they were not requested in the applicant’s initial reconsideration submissions and are improper on reply. The applicant has also not set out the amount of costs she is seeking. For these reasons, the applicant’s requests for costs is denied.

26Even if the applicant’s request for costs is properly before me, I would not order costs to be payable to the applicant in this reconsideration.

27The applicant submits that costs are warranted as the respondent has acted unreasonably, frivolously, vexatiously, and in bad faith because respondent’s counsel:

a) “Recanted” on comments it made during the hearing in which he said that it would not be unreasonable for him to oppose some time for the applicant to obtain medical direction from her treating doctors but then “the respondent without foundation puts forward its conspiracy theory that Ms. Grewal had the capacity to shrewdly fabricate her incapacity for three consecutive days, and then to make her treating psychiatrist Dr. Gerber an accessory to her elaborate scheme by having him create and illegal incapacity report, all to fraudulently obtain an adjournment;”

b) Suggested that the Tribunal should “exercise institutional bias against the applicant;” and

c) “Knowingly and/or negligently submitting incomplete law on capacity assessments, incorrectly suggesting that Dr. Gerber’s capacity report is not admissible, erroneously claiming inexistent requirements for the applicant to be granted reconsideration[,] and wrongly stating that the applicant’s reconsideration requests deals with an adjournment.”

28I find that the conduct alleged by the applicant – i.e., that respondent’s counsel “recanted” on comments made during the hearing and taking the position he did on this reconsideration – does not amount to the high-handed conduct that would attract an order for costs. The comment made by respondent’s counsel during the hearing was made without any evidence before the Tribunal regarding the applicant’s capacity. Once Dr. Gerber’s report was produced, it was open to the respondent to challenge the report and take an adverse position regarding it. These actions do not amount to unreasonable, frivolous, vexatious, or bad faith conduct.

29I also do not agree with the applicant’s submissions that the respondent suggested that the Tribunal should “exercise institutional bias against the applicant.” The respondent’s submissions were, “This is not the first time that the applicant [sic] counsel’s firm have alleged a lack of capacity to have a chance at a re-do” and cited the Tribunal’s decision in Sistermans v. CAA Insurance Company, 2024 CanLII 106217 (ON LAT) (Sistermans). This submission does support the applicant’s allegations on this issue. In any event, I did not consider the decision in Sistermans in arriving at my decision on the reconsideration request.

30Finally, I find that the applicant’s submission that the respondent “knowingly and/or negligently” submitted “incomplete law” is without merit. Taking an adverse position on issues in dispute does not entitle a party to an award for costs as it does not rise to unreasonably, frivolously, vexatiously, or bad faith conduct.

31For all these reasons, I would also dismiss the applicant’s request for costs if it was properly before me and if the applicant provided an amount of costs sought.

The applicant’s request for a “caution” is denied

32The applicant did not to point to any binding case law or legislative authority that permits the Tribunal to issue a “caution” to a representative in a proceeding. The applicant’s failure to cite such an authority is fatal to the applicant’s request for a “caution” and, therefore, it is denied.

CONCLUSION & ORDER

33The applicant’s request for reconsideration is granted. The decision is cancelled.

34I am ordering a rehearing before a new adjudicator. The rehearing will proceed via videoconference for eight days. This hearing length is appropriate based on the hearing transcript filed by the applicant confirming the applicant intended to call 10 witnesses and the respondent intended to call three witnesses to testify at the hearing. The hearing shall commence on a date to be set by the Tribunal. The Tribunal will contact the parties to set the dates and times.

35The applicant’s request for costs and a “caution” is denied.

36If the parties resolve the issues in dispute, the applicant shall immediately advise the Tribunal in writing.

Lindsay Lake

Vice-Chair

Tribunals Ontario – Licence Appeal Tribunal