Connor Sistermans v. CAA Insurance Company, 2025 CanLII 15948

Citation: Sistermans v. CAA Insurance Company, 2025 ONLAT 22-006102/AABS - R

RECONSIDERATION DECISION

Before: Craig Mazerolle

Licence Appeal Tribunal File Number: 22-006102/AABS

Case Name: Connor Sistermans v. CAA Insurance Company

Written Submissions by:

For the Applicant: Ashu Ismail, Counsel

For the Respondent: William G Woodward, Counsel

OVERVIEW

1On November 15, 2024, the applicant requested reconsideration of the Tribunal’s decision released October 25, 2024 (“decision”).

2Stemming from an automobile accident on July 22, 2014 and a request for accident benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”), I found the applicant was barred from proceeding with the substantive issues in dispute. Specifically, by finding that the settlement agreement reached between the parties on November 24, 2016 was not invalidated on account of the applicant’s alleged incapacity, I concluded that the application could not proceed to a hearing on the substantive issues, pursuant to s. 9.1(8) of Reg. 664.

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 Rules 18.2(a) and 18.2(b) in his request for reconsideration.

5The respondent opposes the applicant’s request for reconsideration.

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.

Dr. Lightfoot’s Report

8I find the applicant has not established a ground for granting his reconsideration request based on the exclusion and subsequent treatment of Dr. Lynn Lightfoot’s report (dated December 1, 2023).

9As additional context, following a videoconference hearing held from January 8 – 11, 2024, the Tribunal issued a motion order on May 22, 2024. The Tribunal ordered a new adjudicator to render a decision based on “the existing record (i.e., the recording and/or transcript of the hearing, if available, and all records that were made exhibits at the hearing)”. On June 11, 2024, the respondent provided the Tribunal with a copy of the transcripts from the hearing. The order to exclude Dr. Lightfoot’s report was made during the videoconference hearing.

10The applicant claims the Tribunal “erred in law” through both the exclusion of Dr. Lightfoot’s report, as well as what he describes as my choice “to consider and discount Dr. Lightfoot’s opinion without receiving evidence or submissions on the opinion”. According to the applicant, this choice was both procedurally unfair and an error of law. The applicant also claims that the Tribunal did not weigh the admissibility factors from R. v. Mohan, 1994 CanLII 80 (SCC) (“Mohan”), and it was “an error in law to dismiss a capacity assessment on the grounds that it is retroactive in nature.”

11As noted at paragraph 28 of the decision, the adjudicator who conducted the videoconference hearing ordered the exclusion of Dr. Lightfoot’s report. This exclusion was challenged by the applicant at that time. I made the following comments about this challenge [my emphasis added]:

The applicant also took issue with several procedural orders that had been made prior to and during the videoconference hearing, including a denial of the applicant’s request for a production order and the decision to exclude a report from Dr. Lynn Lightfoot (dated December 1, 2023)… Then, while the applicant may claim Dr. Lightfoot’s findings from her December 2023 report would have shed light on his capacity in November 2016, I find the retrospective nature of the report raises similar issues to those I identified about the capacity assessments above. I do not find that the admission of this report would have likely impacted my findings.

12The “similar issues” highlighted in this paragraph were discussed at an earlier point in the decision at paragraph 24 [my emphasis added]:

Turning to the reports from the parties’ capacity assessors, I find that neither report provides significant assistance for my determination. The capacity dispute arose after the settlement agreement was signed. Both parties obtained their assessments years after the event. As such, both assessments are retrospective in nature. In the present case, I have the benefit of contemporaneous accounts of the applicant’s cognitive abilities and functional limits during the relevant period. Together, the academic records and test scores paint a comprehensive picture of the applicant’s abilities in and around November 2016, so I do not find it is necessary to place significant weight on the capacity reports from 2021 and 2023.

13First, I am satisfied that the adjudicator who conducted the videoconference hearing ensured both parties were treated in a procedurally fair manner. As quoted above, I found the applicant had the opportunity to express his concerns about the exclusion of the report during the videoconference hearing. I then further concluded that, even if the exclusion order had been decided differently, the admission of the report likely would not have impacted my findings. I see no material breach of procedural fairness in this circumstance such that a reconsideration is warranted under Rule 18.2(a).

14Second, while the applicant claims the treatment of this evidence constitutes an error of law, I find the applicant is, in effect, attempting to challenge my weighing of the parties’ capacity assessments. 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.

15The applicant directed my attention to the Superior Court’s decision in Kay v. Kay Sr., 2019 ONSC 3166 for the proposition that retroactive capacity assessments are acceptable forms of evidence. I accept this premise, but, as Justice Maranger noted at paragraph 21, the reliability of a retroactive assessment may be relatively “frail” [my emphasis added]:

The more important consideration is what weight I attach to the assessment in my ultimate determination. While I would not disregard it completely, in my estimation it should be afforded only a modest degree of weight. This is because of the following reasons: Mrs. Wotton was not really assessed; a retrospective capacity assessment (going back 9 years) is, in my view, inherently frail in terms of reliability. The assessment’s findings are based on only part of the evidence; the assessment was not an exhaustive review of Mrs. Wotton’s life in and around the time she signed the will. Finally, the Applicant’s material was not provided to or reviewed by the assessor.

16Therefore, when faced with contemporaneous records that addressed his cognition and ability to understand information during the relevant period, I placed greater weight on the applicant’s academic records and cognitive test scores than on the “inherently frail” reliability of retrospective assessments. I find the applicant has not established any error in this regard that would warrant a reconsideration pursuant to Rule 18.2(b).

17Finally, I am satisfied that the applicant has not presented a compelling explanation for why consideration of the Mohan factors would have impacted either the procedural fairness or outcome of this case. I further note that the Mohan factors were not explicitly raised during the videoconference hearing, so they cannot now be used as a ground for establishing a request for reconsideration.

Understanding of Capacity

18I find the applicant has not established a ground for reconsideration based on the argument that my “understanding of capacity was incorrect”.

19The applicant claims I made an error of law, as the “sole focus” of my capacity assessment “was cognition, with heavy reliance on school grades and test scores”. Most notably, the applicant submits I incorrectly dispensed with the viva voce evidence of both him and his mother. For instance, the applicant argues:

The [T]ribunal did not have reason to doubt the applicant’s mother’s sense and judgement. Further, the applicant’s mother was a layperson best placed to observe and assess the capacity of the applicant at the time he entered the impugned settlement.

20First, I find the applicant’s position that my analysis focused solely on cognition is a narrow reading of the decision. In addition to addressing the applicant’s position about emotional dysregulation (a point I will touch on more below), the decision contains a number of other considerations when assessing capacity. For instance, when detailing comments from his report cards at paragraph 12, there is a reference to “creative thinking”; then, at paragraphs 15 and 16, there are references to his capacity for “participating in… discussions”; and, at paragraph 19, I highlight a cognitive test result that focused on his “foresight for safety”. These references demonstrate that the scope of my assessment was not limited to cognition, but rather encompassed a broader understanding of the applicant’s condition.

21In support of his position, the applicant cites the Court of Appeal for Ontario’s decision in Re Price, Spence v. Price, 1945 CanLII 339 (ON CA), [1946] 2 D.L.R. 592. Specifically, the applicant highlights the statement from Justice Laidlaw where he notes that capacity assessments are (at pg. 595) “a practical question which may be answered by a layman of good sense with as much authority as a doctor.” According to the applicant, I incorrectly disregarded the “layperson” observations of his mother.

22Though I note that this earlier case involved testamentary capacity, I find the Court’s reasons still establish that capacity assessments are necessarily fact specific. For instance, Justice Laidlaw states: “The weight to be properly given to the evidence touching the question depends in part upon the extent of the observations made by a witness.” As such, it is not the case that there must be a categorical preference for lay witness evidence over experts, but rather the probative value of any form of evidence must be weighed in accordance with the facts at hand. By considering and weighing the evidence presented to me by both the applicant and the respondent (be it lay or expert), I find the applicant has not established any error with the methods I used to reach my conclusion on capacity. Therefore, without establishing that my understanding of capacity constitutes an error of law, I find the applicant’s argument about his viva voce evidence is another attempt to challenge my weighing of the evidence on reconsideration. As such, I conclude that this ground does not support granting the applicant’s request for reconsideration on the basis of Rule 18.2(b).

23In this same section of his reconsideration submissions, the applicant further argues that “Dr. Lightfoot’s report regarding [the applicant’s] emotional dysregulation today is the same as described in historical records, and by his mother’s whose evidence in this regard was completely ignored.” I find this argument disregards the findings in my decision where the applicant’s emotional state was considered. Specifically, when addressing the applicant’s concerns about relying too heavily on cognitive test scores to assess capacity, I noted at paragraphs 20 and 21 [my emphasis added]:

I accept that the capacity to understand and process information and instruct counsel may be impacted by one’s psychological and emotional state. However, similar to my findings about his academic performance, I do not see any significant, negative results in the test scores that would suggest the applicant’s emotional difficulties and need for assistance impacted his ability to understand and process information. I am not satisfied that the applicant has demonstrated that his stress and emotional dysregulation had any significant impact on his ability to perform tasks like information processing and abstract reasoning, such that he lacked capacity in November 2016.

24Once again, the reconsideration process is not a venue for challenging the Tribunal’s weighing of the evidence. I find no error in how I addressed the applicant’s arguments about emotional dysregulation such that a reconsideration is warranted under Rule 18.2(b) on this basis.

25In sum, I find the applicant has not established a ground for granting reconsideration based on my understanding of capacity in the decision.

Dr. Thornton’s Evidence

26Related to his argument above about emotional dysregulation, the applicant also claims that my decision did not mention a “psychiatrist who explained, with brain imaging, [the applicant’s] generalized anxiety disorder, major mood disorder, PTSD and adjustment disorder stemming from his accident.” Though referred to as “Dr. Fortin” in his initial submissions, both the respondent’s submissions and the applicant’s reply refer to this individual as “Dr. Thornton”.

27As quoted above, the expert evidence of Dr. Thornton was considered, weighed, and addressed in my decision. The applicant may challenge my findings about this evidence, but I find this challenge constitutes another attempt to ask for a re-weighing of the evidence through reconsideration. As such, I find no material breach of procedural fairness in this circumstance such that a reconsideration is warranted under Rule 18.2(a), nor has the applicant established an error that would warrant a reconsideration under Rule 18.2(b).

Defence Expert Opinion

28The applicant claims that the Tribunal’s “reasoning mirrors that of the insurer’s defence capacity assessor, without mentioning this witness at all.” According to the applicant’s submissions, this “implicit rather than explicit reliance” meant the Tribunal was able “to obtain the result sought without having to answer to effective neutralization of this expert’s reliability and opinion on cross.” No evidence was provided by the applicant to substantiate this allegation, nor were there any specific examples cited from the decision to show where my reasoning “mirrors” that of the respondent’s capacity assessor.

29The applicant has the onus to demonstrate that a ground put forward in his request meets at least one criterion for granting reconsideration under Rule 18.2, and I find he has not met his onus here. Again, I find no material breach of procedural fairness, pursuant to Rule 18.2(a), nor has the applicant established an error, pursuant to Rule 18.2(b).

Bias

30The applicant claims that the Tribunal’s practices regarding his representative’s law firm demonstrates an apprehension of bias:

The [Tribunal] has declared [the applicant’s representative’s law firm] a “high-conflict” firm and has directed its members to advise when [this firm] is on a file, so the administration can assign one of a particular set of adjudicators to hear their matters, raising an apprehension of bias against [this firm’s] clients.

The tribunal’s designation of [this firm] as a “high-conflict” firm would give rise to an apprehension in the mind of a reasonable and well-informed person that the members of the tribunal do not have the impartiality necessary to perform their duties.

31The test for a reasonable apprehension of bias was set out by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada, 1976 CanLII 2 (SCC), at p. 394:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

32In Wewaykum Indian Band v. Canada, 2003 S.C.R. 45, at para. 59, the Supreme Court confirmed the existence and importance of a strong presumption of judicial or quasi-judicial impartiality. In order to overcome this presumption, a party alleging actual or a reasonable apprehension of bias must establish the presence of serious grounds.

33Aside from the unsubstantiated allegations quoted above, no evidence was provided by the applicant (either in his initial submissions or reply) to meet the threshold required by the Supreme Court. There were also no specific examples provided from the case at hand to show a reasonable apprehension of bias. The applicant has the onus to establish a reasonable apprehension of bias, and I find he has not met his onus. As such, I find no material breach of procedural fairness, pursuant to Rule 18.2(a), nor has the applicant established an error, pursuant to Rule 18.2(b).

CONCLUSION & ORDER

34The applicant’s request for reconsideration is dismissed.

Craig Mazerolle

Vice-Chair

Tribunals Ontario – Licence Appeal Tribunal