RECONSIDERATION DECISION
Before: Lisa Yong, Adjudicator
Licence Appeal Tribunal File Number: 23-003877/AABS
Case Name: Asghar Mirzaie v. Intact Insurance Company
Written Submissions by:
For the Applicant: James W. Srebrolow, Counsel Alexander Chekina, Counsel
For the Respondent: Darrell March, Counsel
OVERVIEW
1On December 27, 2024, the applicant requested reconsideration of the Tribunal’s decision dated December 10, 2024 (“decision”).
2Following a videoconference hearing, the Tribunal rendered the decision. In the decision, the Tribunal found that the applicant did not sustain a catastrophic impairment (“CAT”) under criteria 7 or 8. The Tribunal found that the applicant was entitled to payment of the treatment plan for a chronic pain assessment, and he was not entitled to the other disputed treatment plans, interest or an award. The Tribunal also found that neither party was entitled to costs.
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 new 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 a reconsideration of the decision (excluding the treatment plan proposing the chronic pain assessment, which was granted) under all three grounds, namely Rules 18.2(a), (b) and (c). The applicant requests that the decision be varied or, in the alternative, that a re-hearing be scheduled.
5The respondent’s position is that the applicant is attempting to reargue the issues in dispute. The respondent submits that the Tribunal did not commit a material breach of procedural fairness, committed no errors of law or fact and that there is no new evidence that was not before the Tribunal when rendering its decision. It requests the applicant’s reconsideration request to be dismissed.
RESULT
6The applicant’s request for a reconsideration is dismissed.
PROCEDURAL ISSUES
Respondent’s motion requesting to file sur-reply submissions is denied
7The respondent filed a Notice of Motion on February 21, 2025, seeking leave to file sur-reply submissions in response to what it said were new arguments and submissions raised by the applicant in his reply dated February 6, 2025. The respondent submits that the applicant’s reply improperly contained new and reformulated arguments and argues that it is well established that it is unfair to the opposing party to raise new issues and arguments in reply as there is no opportunity to respond. The respondent seeks an order to allow it to file sur-reply submissions.
8The applicant asks the Tribunal to deny the respondent’s motion and submits that his reply submissions address issues raised by the respondent in its responding reconsideration submissions, which is not improper. The applicant submits that no new arguments were introduced on reply.
9I agree with the respondent that the applicant’s reply submissions contain new arguments not raised at the first instance in his reconsideration submissions filed on December 26, 2024. For example, in reply, the applicant raised an issue regarding the Tribunal’s decision of vacating three days from the scheduled 9-day videoconference hearing. I have reviewed the applicant’s reply submissions in its entirety and find that they do not establish grounds for reconsideration. As a result, there is no prejudice to the respondent, and I decline to grant the motion on this basis.
ANALYSIS
10The 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 (c) – New case law that was not before the Tribunal
11I find the applicant has not established grounds for reconsideration based on Rule 18.2(c).
12The applicant submits that there is new evidence in the form of two cases, Ouderkirk v. Belair Direct Insurance Company, 2024 CanLII 108219 (“Ouderkirk”) and Shahin v. Intact Insurance Company, 2024 ONSC 2059 (“Shahin”), that was not before the Tribunal at the time of the hearing. The applicant submits that, had these cases been put before the Tribunal, it would have led the Tribunal to place little weight on the s. 44 reports and would have reached a different result.
13The respondent submits that there is no new evidence that was not before the Tribunal. It submits that case law is not evidence and relies on Presley v. The Personal Insurance Co, 2024 CanLII 126885, in that Rule 18.2(c) involves a three-part test:
a. there is evidence that was not before the Tribunal when rendering its decision;
b. the evidence could not have been obtained previously by the party now seeking to introduce it; and
c. the evidence would likely affect the result.
14I agree with the respondent and find that case law is not evidence.
15However, I find the cases raised by the applicant should be considered because they relate to his submissions in the next section regarding procedural fairness and his submissions regarding his right to cross-examine the s. 44 expert witnesses. Hence, I find it more appropriate to address these cases further in the next section below.
16As I find that there is no new evidence that was not before the Tribunal when rendering the decision, the applicant has not established grounds for reconsideration under s. 18.2(c).
Rule 18.2(a) material breach of procedural fairness & Rule 18.2(b) error of law or fact
17I find the applicant has not established that the Tribunal committed a material breach of procedural fairness, pursuant to Rule 18.2(a), or an error of law or fact, pursuant to Rule 18.2(b), in this matter.
18The applicant submits that the Tribunal committed a material breach of procedural fairness or an error of law or fact by:
a) not admitting the applicant’s written submissions as evidence at the hearing;
b) failing to account for the fact that the respondent did not call any of its s. 44 expert witnesses at the hearing and for failing to exclude the respondent’s s. 44 expert reports; and
c) mischaracterizing the applicant’s evidence and alleging the Tribunal made errors of law or fact regarding various medical documents and reports; and not referencing the applicant’s experts’ viva voce evidence.
Together, the applicant claims these breaches prevented him from having his case reasonably, fully and properly heard.
a) Tribunal’s decision not to allow the applicant’s written submissions into evidence
19I find that the applicant has not established grounds for reconsideration based on his arguments about his written submissions.
20The applicant submits that the Tribunal’s exclusion of his written submissions, contained in his hearing brief labelled “Part X – Applicant’s Written Submissions Brief” (hereafter “Written submissions”), is a material breach of procedural fairness. He submits that his Written submissions refer directly to the various expert reports relied upon by the applicant, and they contain his analysis of the respondent’s s. 44 reports relating to the substantive issues in dispute. According to the applicant, these Written submissions should have been accepted by the Tribunal. He submits that accepting the Written submissions would have helped the Tribunal crystallize the nature and condition of the applicant’s health and treatments received to date.
21The respondent submits that the exclusion of the applicant’s written submissions did not deprive him the ability to fully present his case at the hearing. It submits that the applicant was able to make opening and closing oral submissions and did not affect the applicant’s right to be heard before the Tribunal that would have deprived him of procedural fairness.
22At paragraph 19 of the decision, the Tribunal ordered that the parties are to make oral submissions on all issues in dispute before the panel. Further, the Tribunal explained that “[w]e were of the opinion that the relief requested could be adequately addressed with oral submissions made within the video-conference hearing.”
23I agree with the respondent that the adjudicator ordered a videoconference hearing at the case conference, which is not a hybrid hearing, and therefore written submissions should not be permitted. Further, written submissions are not evidence.
24Given that the matter was set for a videoconference hearing, the Tribunal ordered the parties to make oral submissions during the hearing, which gave both parties the opportunity to make their submissions with respect to the issues in dispute and to address any discrepancies in the evidence tendered by either party. I find the applicant has not established that the Tribunal committed a material breach of procedural fairness or an error of law or fact as it relates to the exclusion of his Written submissions.
25In the applicant’s reply submissions for reconsideration, the applicant further argues that paragraph 19 of the Case Conference Report and Order (“CCRO”) specifically allows for submissions and document/authority briefs to be filed in advance of the hearing, which, in turn, amounts to a right to file his Written submissions as part of its evidence brief at the hearing. In addition, he also raised the argument that he should be allowed to ‘read in’ his Written submissions during the vacated three days of the scheduled 9-day videoconference hearing.
26For further context, the decision to vacate the last three days of the 9-day hearing was made at the conclusion of the fifth day of hearing as the parties confirmed that there were no further witnesses scheduled to testify at the hearing. On consent of the parties, they agreed to make their closing submissions on the following (sixth) day of the hearing.
27I find that the applicant is raising the arguments (in paragraph 25 above) for the first time in his reply submissions for reconsideration. These arguments were not raised by the applicant during the hearing and therefore, are not viable arguments on reconsideration.
28Notwithstanding the above, I find that the issue regarding the applicant’s Written submissions was raised, heard and adjudicated by the Tribunal at the hearing, and decision was made at paragraph 19 of the decision.
29I find the applicant has not established his onus to prove that the Tribunal committed a breach of procedural fairness based on this ground.
b) Tribunal did not strike out the respondent’s s. 44 reports upon learning that the respondent would not be calling any of its witnesses to testify at the hearing
30I find that the applicant has not established grounds for reconsideration based on his claim about the respondent’s s. 44 reports.
31The applicant submits that the Tribunal committed a material breach of procedural fairness or an error of law or fact by:
i. Inappropriately assigning weight to the respondent’s s. 44 reports, where the s. 44 assessors were not called by the respondent to testify at the hearing; and
ii. Failing to give an opportunity to the applicant to obtain his own summonses for the s. 44 assessors for cross-examination and for not providing the applicant an opportunity to address the inability to cross-examine the s. 44 assessors, upon learning that the respondent would not call any of the s. 44 assessors to testify at the hearing.
32The respondent submits that the weight the Tribunal assigned to the s. 44 reports is not a material breach of procedural fairness or an error of law or fact. It argues that s. 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, allows the Tribunal to admit any document as evidence, whether or not it was given under oath or affirmation. Exercising the statutory right by the Tribunal is not a denial of the applicant’s right of procedural fairness. Further, it submits that the respondent is under no obligation to call its s. 44 assessors to testify at the hearing. The onus is on the applicant to prove his case, and his failure to obtain his own summonses for the s. 44 assessors does not amount to a material breach of procedural fairness or an error of law or fact.
33I agree with the respondent that the Tribunal’s assignment of weight to evidence does not amount to a material breach of procedural fairness or an error of law or fact. I find that both parties were given equal opportunities to be heard during the hearing, which included making their opening statements, presenting their evidence during the examination and cross-examination of the witnesses, entering evidence as exhibits and making closing submissions.
34Although not addressed in the decision, the applicant referred to the respondent’s s. 44 reports during his examination of his own witnesses and had asked the Tribunal to mark some of the s. 44 reports as exhibits during the hearing. On the fourth day of the hearing, upon receiving the respondent’s confirmation that it would not be calling any s. 44 expert witnesses to testify at the hearing, the applicant did not make any objections, did not request for summonses for the s. 44 experts, nor did he ask the Tribunal to exclude the s. 44 expert reports that had already been entered into evidence. Therefore, the applicant’s submission that the Tribunal failed to give him an opportunity to address the respondent’s failure to call its s. 44 expert witnesses is not established as it is raised on reconsideration for the first time.
35As mentioned above, the applicant relies on two cases, Ouderkirk and Shahin, and submits that these cases relate to the respondent’s inability to produce its s. 44 assessors to testify at the hearing for cross-examination and that their s. 44 reports should be given little to no weight in the decision or excluded as a result.
36The respondent submits that the cases would not have affected the Tribunal’s decision. It contends that Ouderkirk is not a free-standing legal authority that a s. 44 assessor’s report should be assigned less weight because they failed to be cross-examined on their report at the hearing. It submits that the weight assigned to a piece of evidence is dependent on the factual circumstances of the specific matter before the Tribunal.
37In Ouderkirk, the respondent brought forward a specific procedural issue regarding the attendance of a s. 44 assessor at the outset of the hearing. The assessor was out of the country and each party provided submissions regarding a request to extend the hearing dates to accommodate the attendance of the assessor. The hearing adjudicator decided not to extend the hearing dates, accepted the s. 44 report and addressed the weight assigned to the s. 44 assessor’s report based upon the factual findings and analysis of the evidence in the decision.
38I find that Ouderkirk is distinguishable because no issues were brought up in this matter by either party with respect to the availability of the s. 44 witnesses and there were no requests for the Tribunal to consider extending the hearing dates to accommodate for any attendance issues of any witnesses, at the outset of the hearing or on day four of the hearing. Further, Ouderkirk is a previous Tribunal case which is not binding on me. I find that the circumstances in Ouderkirk were unique and are distinguishable. Hence, I do not find that Ouderkirk would have affected the decision.
39I acknowledge that Shahin is a Divisional Court case and therefore it is binding on this Tribunal. In Shahin, the Court found that the Tribunal breached procedural fairness by relying on components of an expert’s report in its decision even though the expert only provided evidence by way of examination-in-chief and did not re-attend the hearing for cross-examination by the applicant. The Court found that the applicant was not afforded the opportunity to contest the expert’s evidence despite having an expectation that they would be able to, which was a breach of procedural fairness.
40I find that Shahin is distinguishable on the facts from this matter because there was no uncontested oral evidence from any of the respondent’s s. 44 expert witnesses to affect the Tribunal’s decision. As mentioned above, on the fourth day of the hearing, the respondent confirmed that it would not be calling any of its expert witnesses to testify at the hearing. The applicant did not request any summonses of the s. 44 expert witnesses prior to or at any point during the hearing, object to the reports being admitted and did not speak to the weight to be assigned to the s. 44 expert reports.
41Conversely, in Shahin, the parties and the Tribunal expected throughout the hearing that the expert who was examined-in-chief, would return to be cross-examined. Yet, due to numerous reasons, the expert was not cross-examined, and the Tribunal was left with uncontested evidence that it relied on in its decision. This was not the case during the hearing of the decision.
42I find that procedural fairness was afforded to both parties for the following reasons. None of the respondent’s s. 44 expert witnesses appeared before the Tribunal to give oral testimony. There were no objections raised by either party when the parties entered the s. 44 expert reports into evidence as exhibits. The parties were given the opportunity to make submissions in closing regarding the parties’ expert reports (i.e., s. 25 and s. 44 assessors). The applicant knew the case he had to meet and was provided the opportunity to do so. The Tribunal found the applicant’s evidence in support of his case unpersuasive.
43In addition, on the final day of the hearing, both parties were permitted 45 minutes, instead of 30 minutes as specified in the CCRO, to make their closing submissions, as well as to address the weight to be assigned to the s. 44 expert reports. Although not mentioned in the decision, neither party addressed the weight the Tribunal should assign to the s. 44 reports. Rather, they focused on addressing the expert witnesses’ findings in their respective reports and gave submissions on any deficiencies on any opposing reports.
44In accordance with Rule 8 of the Rules, the applicant may make a request for a summons, not only of his own witnesses, but also for the respondent’s witnesses, in advance of the hearing. Therefore, he need not rely on the respondent’s summonses to call upon the s. 44 assessors to testify at the hearing. If the s. 44 assessors were critical witnesses he required for cross-examination, the applicant could have filed his own summonses to call the s. 44 assessors in advance of the hearing. The Rules did not prevent the applicant from doing so. Here, the applicant did not obtain his own summonses for the s. 44 assessors, despite having the ability to do so in advance of the hearing and did not bring a motion to request for summonses for the s. 44 assessors upon learning that the respondent would not be calling its expert witnesses.
45I further note that this is not contradictory to paragraph 20 of the decision. Although not specified in paragraph 20, the applicant’s summons requests referred to were part of the applicant’s motion brought prior to the hearing and heard on the first day of the hearing, and relate to the issuance of the summonses for the applicant’s own expert witnesses only and do not relate to any of the s. 44 expert witnesses.
46Given the above reasons, I find that the applicant has not established grounds for reconsideration based on his claim about the s. 44 assessment reports.
c) Alleged mischaracterizing or ignoring the applicant’s evidence or not referencing the applicant’s experts’ viva voce evidence are not a material breach of procedural fairness or error of law or fact
47I find that the applicant has not established grounds for reconsideration based on the alleged mischaracterization or ignoring of his evidence or not referencing his experts’ viva voce evidence.
48The applicant submits that the Tribunal committed a material breach of procedural fairness and/or error of law or fact by:
i. stating in the decision, at paragraph 88, that a Form 1 assessment for attendant care needs was not submitted prior to January 2023, when in fact, a Form 1, dated July 28, 2017, was submitted to the respondent;
ii. ignoring the applicant’s evidence including medical documents regarding an odontoid fracture, post-concussion syndrome, the reports and findings by Dr. Basile, Dr. Getahun and Mr. Zapparoli; and not referencing the applicant’s experts’ viva voce evidence in the decision. In particular, the Tribunal did not accept Dr. Basile’s finding of 14% WPI for the applicant’s mental status rating and Mr. Zapparoli’s opinion regarding social functioning for the applicant’s catastrophic impairment Criterion 8 assessment; and
iii. making allegedly contradictory findings regarding the applicant’s headache rating in comparison with sleep impairment rating at paragraph 43 of the decision.
49The respondent submits that the weight assigned by the Tribunal to the evidence does not amount to procedural unfairness or an error of law or fact. It relies on Vespa v. Aviva General Insurance Company, 2022 ONSC 3283 (“Vespa”), and submits that the Tribunal is not required to comment on each piece of evidence it considered or reviewed in its decision.
50I find that the applicant has not established his onus that the Tribunal committed a material breach of procedural fairness, nor any error of law or fact, at paragraph 88 of the decision. Although not stated in the decision, I reviewed the list of exhibits and confirmed that the applicant’s Form 1, dated July 28, 2017, was not entered into evidence and was not labelled as an exhibit by either party during the hearing. Even if the applicant had entered this Form 1 into evidence, I am satisfied that the Tribunal likely would not have reached a different result, because, as stated in paragraphs 87 and 88, pursuant to s. 20(1) of the Schedule, attendant care benefits are only payable for “expenses incurred” by the applicant. In this case, the applicant confirmed, during the hearing, that he did not incur any attendant care benefits and therefore, he was found not entitled to an attendant care benefit.
51I then find that the Tribunal did not commit a breach of procedural fairness or an error of law or fact with regards to the applicant’s sleep impairment and headache ratings. At paragraph 43, the Tribunal accepted the applicant’s sleep impairment ratings based on the applicant’s medical records, from his family doctor, Amber Williams and Dr. Karmy, documenting the applicant’s sleep issues and diagnosis with a sleep disorder. In the following paragraph, the Tribunal did not accept the applicant’s headache ratings because the Tribunal found that the “pre-accident medical records establish that [the headaches] was a pre-existing issue” and is a non-accident-related condition. There is no contradiction with the Tribunal’s findings.
52Lastly, the Tribunal is not required to include or comment on all the evidence it considered in making its decision. As the Divisional Court held in Vespa at paragraph 18:
i. It follows that there was no procedural unfairness in the adjudicator preferring to rely upon evidence which squarely addressed the question to be determined. Procedural fairness does not require that every argument be the subject of a line of analysis or that every aspect of the evidence be commented upon.
53In relation to the applicant’s submission that the Tribunal ignored the applicant’s evidence and did not reference the applicant’s experts’ viva voce evidence, I find that the Tribunal considered the extensive evidence submitted by both the applicant and the respondent. The Tribunal conducted an analysis under Criterion 7 and 8 and made many references throughout paragraphs 37 to 52 of the decision relating to the applicant’s expert witnesses’ reports and findings. As per Vespa, the Tribunal is not required to comment on every piece of evidence in its decision.
54For the above reasons, I find that the applicant has not established grounds for reconsideration under Rule 18.2(a) or Rule 18.2(b).
CONCLUSION & ORDER
55The applicant’s request for reconsideration is dismissed.
Lisa Yong Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: March 24, 2025