Phuong Pham v. Coseco Insurance Company, 2025 CanLII 3842

RECONSIDERATION DECISION

Before: Bonnie Oakes Charron

Licence Appeal Tribunal File Number: 22-000047/AABS

Case Name: Phuong Pham v Coseco Insurance Company

Written Submissions by:

For the Applicant: Rajiv Kapoor, Paralegal

For the Respondent: Kathleen O-Hara, Counsel

OVERVIEW

1Both the applicant and the respondent filed requests for reconsideration with respect to the Tribunal’s decision dated August 23, 2024 (“the decision”).

2In the decision, I found that the applicant’s accident-related injuries were outside of the Minor Injury Guideline (“MIG”). I also found that she was not entitled to the treatment plans/OCF-18s (“plans”), an expense claim/OCF-6 (“expense”), an award, or interest.

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.

The applicant’s request for reconsideration

4The applicant is requesting a reconsideration pursuant to Rules 18.2(a) and (b). She submits that the Tribunal breached procedural fairness and made errors of fact and law in the decision. The applicant is seeking:

a. An order varying the decision in part, to find the applicant entitled to the plans, an award, and interest; or

b. An order for a new hearing on all the issues in dispute.

5The respondent submits that the Tribunal did not breach procedural fairness in the decision or in its findings about the plans. The respondent also submits that the Tribunal did not make an error of fact or law with regard to the applicant’s entitlement to the plans.

The respondent’s request for reconsideration

6The respondent is requesting reconsideration pursuant to Rules 18.2(a) and (b). It submits that the Tribunal breached procedural fairness and made errors of fact and law related to its finding that the applicant’s accident-related injuries justified removal from the MIG. As a result, it seeks that the Tribunal vary its decision so that the applicant remains subject to the MIG.

7The applicant denies that the respondent has grounds for reconsideration and asks that its request be dismissed.

RESULT

8Both the applicant’s and the respondent’s request for reconsideration is dismissed.

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.

1. The applicant’s request for reconsideration

Rule 18.2(a) – Material breach of procedural fairness

10In this matter, the applicant submits that I committed a breach of procedural fairness by:

a. this matter being ordered to proceed to a written hearing with a limit of 12 pages for submissions, thereby limiting her ability to make fulsome submissions; and

b. finding that the applicant was not entitled to the plans due to a lack of submissions from the applicant about the plans.

i) The hearing format and page limits

11I find that I did not commit a material breach of procedural fairness with regard to the hearing format and page limits for submissions.

12The applicant submits that her matter is a complex one, involving two previous decisions, multiple motions, approximately nine years of medical records, and nine issues in dispute. She argues that the Tribunal committed a breach of procedural fairness when it ordered a written hearing for this matter with a limit of 12 pages for submissions.

13The applicant also submits there were lengthy discussions at the case conference about the need for an oral hearing to fully address the issues in dispute. She highlights the intricate history involved, the extent of the medical records to be considered, and the need to address the legal doctrine of res judicata.

14The applicant points to the 12-page submission limit to support her position that she could not make fulsome submissions on the substantive issues in dispute. In addition to the arguments made about the hearing format, the applicant also submits that the respondent should have identified res judicata as a preliminary issue rather than arguing it as a defence. According to the applicant, the respondent’s decision to raise it as a defence led her to use a sizeable portion of her allotted 12 pages to address the legal doctrine.

15First, I agree with the respondent that Rule 18 restricts requests for reconsideration to decisions which finally dispose of an appeal. Decisions made at the case conference, including the hearing format and submission page limits, are not open for reconsideration pursuant to Rule 18(1) because these decisions do not finally dispose of an appeal.

16Second, even if I am wrong and Rule 18 applies to the decisions made at the case conference, I find that there was no material breach of procedural fairness in having this matter proceed to a written hearing. The November 4, 2022 case conference report and order (“CCRO”) states that all orders were made on consent. Further, the applicant did not seek to have the CCRO amended to reflect otherwise. It is not a breach of procedural fairness to order a certain hearing format on consent of the parties.

17I also find that the Tribunal did not commit a material breach of procedural fairness in limiting the parties’ initial written hearing submissions to 12 pages. It was open to the applicant to determine how to effectively use the 12 pages provided, making arguments about the nature and the value of the individual treatment plans, with key references to the evidence.

18In addition, the applicant claims further procedural unfairness because the doctrine of res judicata was not addressed as a preliminary issue. She argues that this approach limited her ability to make fulsome submissions within the page limits. In my view, there is no requirement that res judicata be addressed as a preliminary issue. The respondent raised it in regard to the substantive issues in dispute and the applicant had the ability to reply.

19I agree with the applicant that issues of cost and efficiency should not trump procedural fairness. However, I see no inherent breach of procedural fairness in the orders made in the CCRO. Therefore, the applicant has not established grounds for reconsideration on account of the procedural decisions made by the Tribunal about the hearing format and page limits.

ii) Submissions regarding the plans

20I find that I did not commit a material breach of procedural fairness when I found that the applicant was not entitled to the plans because of a lack of related submissions. The applicant had not made any specific arguments, relying on a conclusion that the plans were reasonable and necessary because they were included in a list of recommendations in Dr. Basile’s s. 25 Neurological Evaluation Report dated October 27, 2021.

21The applicant submits that the report itself is adequate evidence in support of the plans because, in her view:

a. The report is compelling evidence that was instrumental in affirming the validity of her claim with respect to her MIG status.

b. The report contained a detailed roadmap for her rehabilitation plan by recommending a series of further assessments.

c. Most of the assessments fell within the acceptable cost range under s. 25(5) of the Schedule.

22Further, the applicant submitted that if any additional submissions were necessary, the Tribunal should have contacted the parties for more information. She seeks a reconsideration on the basis that it is procedurally unfair to require specific submissions about each plan to prove that each is reasonable and necessary.

23To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. Tribunal case law supports the following as ways an applicant can describe how a plan meets the legal test for entitlement:

a. identify the goals of treatment;

b. describe how the goals would be met to a reasonable degree; and

c. detail how the overall costs of achieving them are reasonable.

24I see no breach of procedural fairness and disagree with the applicant’s position for the following reasons. It is the applicant, and solely the applicant, who has the onus to prove entitlement to each of the plans on a separate and individual basis. The burden is to demonstrate on a balance of probabilities that the proposed goods and services are both reasonable and necessary. The plans in essence are only a form outlining a proposed treatment. It is the applicant’s onus to demonstrate how each is reasonable and necessary with enough detail that a fair determination can be made on a stand-alone basis for each issue. Each plan represents a separate and distinct question to be adjudicated.

25Reviewing evidence alone, without any submission about that evidence, is insufficient. Each issue is a distinct dispute, and evidence that satisfies one issue – such as the applicant’s MIG status – may not necessarily satisfy the test for another. There is no unfairness in requiring an applicant to both explain why a report supports a finding about the MIG, and, to explain why the same piece of evidence supports a finding about the other issues in dispute. Dr. Basile recommended treatment options. However, once made tangible in an offer of proposed treatment from a healthcare provider (i.e., the OCF-18), they become separate questions to be adjudicated.

26The applicant argues that the Tribunal should have asked for additional submissions if the submissions were lacking. In support, she refers me to J.R. v Certas Home and Insurance Company, 2018 CanLII 13161, wherein the adjudicator was found to have erred by not requesting complete copies of the OCF-18s, which had been filed with missing pages by the applicant. I do not find this reference relevant to the circumstances of this case. Here, there were no partial forms filed. The issue is the fact that the plans were simply included in a 1271-page evidence brief. Per the instructions in the CCRO, the adjudicator must be directed to the specific tab and page number of the evidence that supports each argument made. The consequences are stated clearly at paragraph 12 of the CCRO: “The hearing adjudicator may choose not to review evidence not so referenced”. It is the duty of the applicant to put their best foot forward at first instance.

27In contrast, the respondent’s case law is more relevant to the matter at hand. The respondent cites MacLeod v Coachman Insurance Company, 2022 CanLII 38851 (ON LAT) et al, regarding the Tribunal’s practice to not find in a party’s favour where they have not directed the Tribunal to the relevant evidence. It further cites Hussain v Aviva General Insurance, 2023 CanLII 74611 (ON LAT), wherein the adjudicator determined that the remedial nature of the consumer protection mandate of the Schedule does not override the applicant’s obligation to prove their claim.

28The applicant also makes arguments about being disadvantaged by the restrictions on reply submissions, about the relevancy of the contents of some of her general physician’s (“GP”) more recent clinical notes and records (“CNRs”) in support of her claim, and about the cost of the plans as mostly being within the rates set by the Schedule. I find these arguments an attempt to relitigate the case rather than grounds for reconsideration.

29For the reasons outlined above, the applicant has not established grounds for reconsideration due to a breach of procedural fairness related to a lack of submissions on the treatment plans in dispute.

Rule 18.2(b) – Errors of law and/or fact

30In this matter, the applicant submits that I erred in applying s. 38 of the Schedule to the respondent’s denial letters, that I did not consider the consequences of s. 38(11), and that I misapplied the principles in Varriano v Allstate, 2021 ONSC 8242 (“Varriano”). She submitted that had these errors not been made, she would be entitled to the disputed plans. For the reasons that follow, I find that I did not err in the decision as alleged by the applicant.

31The applicant submitted that the respondent’s denial letters did not reference any sections of the Schedule and provided no specifics about which supplied documentation was reviewed. The applicant also argues that the letters required more fulsome descriptions of the medical and other reasons provided by the respondent to meet the requirements of s. 38(8). In addition, she states that I did not consider that the s. 25 report of Dr. Basile had been received by the respondent but not referenced in the letters.

32To support her position, the applicant relies on 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) and M.B. v Aviva Insurance Company, 2017 CanLII 87160 (ON LAT) regarding the need for a denial letter to be unique to each situation with respect to the medical and other reasons in the denial. Additionally, she cites Smith v Cooperators General Insurance Co 2002 SCC 30 in relation to the requirement that the denial letter be without ambiguity, meaningful, and reference her medical condition.

33Largely, she argues that the Tribunal did not uphold the Varriano principles regarding what constitutes a sufficient notice of denial. She refers to four criteria to be satisfied, as follows:

a. a response within 10 days;

b. an indication of what will and will not be paid for;

c. reasons, medical and otherwise; and

d. pursuant to s. 38(9), whether the insurer believes the MIG applies to the insured’s injuries.

34The respondent submits that the contents of the letters were considered, the proper test applied, and the resulting decision should be upheld.

35The applicant indicates that my reasoning is lacking at paragraph 47 of the decision about how the letters meet the requirements of the Varriano principles. To the contrary, I find there was appropriate consideration for all the necessary elements of a valid denial.

36The applicant raises no argument that she did not receive a response to each plan within 10 days of submission.

37The letters themselves correctly identify each OCF-18 submitted, and state clearly what goods and services are proposed and denied.

38With regard to reasons, medical or otherwise, the denial letters confirmed that all medical evidence received had been considered. The letters each indicate that based on the supplied medical documentation, the applicant’s impairments do not fall outside the definition of a minor injury, and accordingly, the MIG applies.

39Dr. Basile’s report provided a list of likely diagnoses as a result of the accident, and another list of recommended treatments. However, the disputed plans themselves do not include mention of Dr. Basile’s findings (i.e., likely diagnoses). Notably, Dr. Basile’s opinion that the applicant likely suffers from Post Concussive Syndrome (“PCS”), is not referenced at all.

40If the OCF-18s for the plans did not reference any specific medical condition from the s. 25 report, I find that neither should it be expected of the respondent to do so in the denial letters.

41Thus, the Tribunal made no error of fact or law in its analysis and decision relating to the respondent’s denial letters. The Tribunal reviewed, considered, and made an interpretation of the denial letters in the context of both the situation at hand, the provisions of the Schedule and the Varriano principles. In my view, all the requirements were met.

42The applicant has not established grounds for a reconsideration with respect to the Tribunal’s finding that the respondent’s denial letters were compliant with s. 38(8).

2. The respondent’s request for reconsideration

Rule 18.2(a) – Material breach of procedural fairness

43In this matter, the respondent submits that I committed a breach of procedural fairness by:

1. Considering the applicant’s most recent s. 25 report, in support of a finding that the applicant’s injuries from the accident justified removal from the MIG.

i) Acceptance of most recent s. 25 report into evidence

44I find that the Tribunal did not breach procedural fairness by considering the latest s. 25 report of the applicant which resulted in a decision to remove the applicant from the MIG.

45The respondent submits that the Tribunal has already considered the opinions of a neurologist and a neuropsychologist regarding the applicant’s MIG status, and accepting a new expert report is procedurally unfair as it disadvantages applicants who do not have the resources to obtain multiple reports, is a drain on Tribunal resources, and an abuse of process.

46The respondent cites several cases wherein the applicants’ claims were found to have already been decided in the context of res judicata. However, in considering these decisions, I find that the cases cited are distinguishable. D.T. v Wawanesa Mutual Insurance Company, 2019 CanLII 110124 (ON LAT) does not apply. First, it was for a specified benefit whereas the current dispute is about the applicability of the MIG and treatment plans. Also, the adjudicator found that the expert opinions had been previously before the Tribunal, whereas here, there is evidence that was not before the Tribunal previously. Further, the respondent cites Ramphal v The Co-Operators Insurance Company, 2023 CanLII 42600 (ON LAT), wherein there had been multiple attempts to request MIG removal on the same basis – chronic pain. Here, it is the first time the applicant claims removal from the MIG on the basis of a neurological impairment.

47For her part, the applicant submits that I thoroughly considered the procedural history of the case in the context of the respondent’s argument about res judicata, at paragraphs 13 and 14 of the decision. She further submits that my determination about the applicability of the MIG was based on a review of the totality of the evidence, including the latest s. 25 report and diagnosis. The applicant also points to the Tribunal’s acknowledgement in paragraph 16 of the decision that the applicant has the right to seek ongoing assessments and treatment as her condition evolves. As such, the decision about the applicability of the MIG cannot be an error, as it is a sound interpretation of the evidence and a reasonable outcome within the range of defensible possible outcomes.

48Additionally, the applicant argues that the respondent did not address procedural fairness at all, making no arguments that the Tribunal’s hearing was unfair, or the decision-maker was biased, or that adequate reasons were not provided. I agree with the applicant on this point and note that the respondent’s displeasure with the result does not amount to procedural unfairness.

49The respondent has not established grounds for reconsideration on account of a lack of procedural fairness due to the consideration of the latest s. 25 report which led to a new MIG determination.

Rule 18.2(b) – Errors of law and/or fact

50In this matter, the respondent submits that I made the following errors of fact and/or law:

a. By waiving res judicata and considering Dr. Basile’s report as “previously unavailable” evidence that conclusively impeached the results of the previous decisions regarding the applicant;

b. In finding that neurological impairment had not been considered before as a basis for removal from the MIG;

c. In the weighing of the evidence including a failure to consider certain facts related to the medical history of the file;

d. By misapplying the doctrine of res judicata; and

e. In reversing the onus of proof by requiring the respondent to obtain a new or updated s. 44 report in response to the s. 25 report of Dr. Basile

i) No waiver of Res Judicata

51I find that the error of law (i.e., treating the report as previously unavailable evidence) and the error of fact (i.e., finding that the report conclusively impeached the results of the previous decision), as alleged by the respondent, are based on a mistaken reading of the decision. No such findings were made as res judicata was not applied.

52The respondent submits that it was an error of law to consider Dr. Basile’s opinion as “previously unavailable” evidence, and an error of fact to find that it conclusively impeached the results of the previous decisions. It asserts that the Tribunal’s decision was reached by forming a conclusion that the MIG was not applicable, on an erroneous finding that the requirements laid out in Toronto v C.U.P.E., Local 79, 2003 SCC 63 (“CUPE”) had been met. In this decision, the Supreme Court had identified two requirements in order to waive res judicata:

a. there be fresh new evidence, which was previously unavailable evidence; and

b. this evidence conclusively impeaches the original results.

53The applicant submits that the respondent did not provide any evidence that the Tribunal made errors in law, or that would result in a different decision.

54I agree since nowhere in the Tribunal’s decision does it say that the adjudicator waived res judicata based on the criteria found in CUPE, in order to consider the s. 25 report. The case is discussed at paragraph 10 of the decision, along with two others that were cited by the applicant in her submissions. The applicant’s cited case law addresses the fact that her MIG status is not fixed but open to review.

55In paragraphs 12 and 13 the Tribunal weighed the competing submissions from the parties about whether res judicata applies. In paragraph 12 the respondent’s argument that the doctrine applies, but can be waived, is outlined. In paragraph 13, the Tribunal indicates that having regard for the submissions of both parties, and the cited case law, “the applicant’s submission that the doctrine does not apply here” is accepted.

56Nowhere in the decision is it stated that res judicata was waived. While it is stated that there is now medical evidence that supports a change in status, this evidence is simply considered because it exists, not because it is new, previously unavailable, or impeaches the previous result one way or the other.

57At paragraph 14 the Tribunal elaborates on why res judicata does not apply, pointing to new grounds for a removal from the MIG, that have not been previously adjudicated. Thus, the doctrine is not waived, it is not applicable.

58The insurer has not established grounds for a reconsideration on account of an error of fact or law with regard to the doctrine of res judicata.

ii) Consideration of Neurological Impairment

59I find that neurological impairment was not previously argued by the applicant or considered by the Tribunal. There is no error of fact or law in the Tribunal considering it as a basis for removing the applicant from the MIG.

60The respondent submits that neurological impairment was already considered in the two previous decisions dated May 18, 2021, and April 29, 2022 respectively. It argues that it was therefore not open to the Tribunal to consider it in the current application. Previously, for the first decision dated May 18, 2021, by Vice-Chair Boyce, the applicant had not argued any specific grounds for MIG removal. As a result, the Tribunal had applied the commonly used categories for MIG removal to conduct its analysis.

61It is the respondent’s position that this included concussion and/or neurological impairment. It points to the decision of Vice-Chair Boyce, wherein it is observed that the conclusions of s. 44 assessor Dr. Vitelli were such that there was no neurological impairment or evidence of anything more than a mild concussion.

62For her part, the applicant submits that a diagnosed neurological impairment was never considered before the most recent decision on the matter. She points out, that contrary to the respondent’s assertions that a previous neurology opinion from Dr. Vitelli was obtained, in fact, Dr. Vitelli is a neuropsychologist and as such, has a different scope of practice than Dr. Basile who is a neurologist.

63I agree with the applicant. Notably, the respondent neglects to address all the information in the first decision about Dr. Vitelli. After noting that Dr. Vitelli did not offer a diagnosis, Vice-Chair Boyce had opined that the Tribunal would have benefited from a deeper analysis. Dr. Basile provides such an analysis.

64In paragraphs 34-36 of the decision, the Tribunal explains why Dr. Basile’s report was both credible and convincing, despite earlier inconclusive findings by other practitioners. In fact, at paragraph 36 of the decision, the applicant’s persistent symptomology is accounted for with Dr. Basile’s determination that the applicant meets the criteria for a diagnosis of PCS. The Tribunal’s findings had regard for the totality of the previous medical history.

65Accordingly, the insurer has not established grounds for reconsideration on account of the Tribunal’s recognition of neurological impairment as the basis for the applicant’s removal from the MIG.

iii) No error in the review of evidence

66I find that the evidence supports a finding of a neurological impairment given the applicant was assessed by an expert medical professional who found that she met the criteria for a diagnosis of PCS, protracted course. There is no error of law in the way the evidence was considered.

67The respondent submits that the evidence does not support an accident-related neurological impairment and that I erred in my weighing of the evidence.

68The respondent argues that the Tribunal placed undue weight on the opinion of Dr. Basile, disregarding other evidence. It argues that I accepted the conclusions of Dr. Basile based solely on the lack of a competing s. 44 opinion, rather than an assessment of the report on its merits in the context of all the medical evidence. It further submits that overall, the evidence does not support such a diagnosis and is contradictory to the assessments of other practitioners consulted earlier in the process.

69At paragraph 22 of the decision, I referenced the applicant’s submission that the respondent did not schedule a s. 44 assessment on receipt of the s. 25 report. A s. 44 assessment, contemporaneous to the received s. 25 report, was an option open to the respondent. The decision does not indicate anywhere that one was required.

70I disagree with the respondent’s argument that I accepted Dr. Basile’s opinion solely on the basis there was no corresponding s. 44 report for comparison. Rather, Dr. Basile’s report outlines a compelling explanation for the applicant’s continued symptomology given there is no other intervening event since the accident that can explain it. Paragraphs 34-36 of the decision describe why the s. 25 report was a persuasive one, despite differing medical opinions obtained earlier on by the respondent.

71The respondent goes on to outline how, in its opinion, the Tribunal did not consider or did not afford weight to the following:

a. The fact that the applicant did not lose consciousness in the accident;

b. An earlier negative CT scan;

c. The opinion of neuropsychologist Dr. Vitelli;

d. Account for the fact that none of the applicant’s other treatment providers diagnosed a head injury, concussion, postconcussive syndrome, or neurological impairment;

e. Gave weight to the GP’s notes without properly considering the content;

f. Overlooked the GP’s opinion that the applicant was not disabled;

g. Disregarded the GP’s belief that the applicant’s headaches were due to medication overuse and her sleep apnea; and

h. Disregarded or misinterpreted the reports of neurologist Dr. Borrett whose examinations focused on the applicant’s neck, back, and right leg as opposed to postconcussive symptoms.

72I find that these submissions are attempts by the respondent to reargue its case which is not the purpose of a reconsideration. Further, the Tribunal is not required to address every argument made or every piece of evidence submitted, in its reasons for decision.

73Nevertheless, the decision at paragraph 24 reviews what was considered in past decisions, while paragraphs 25 – 36 discuss the more recent evidence not previously considered. The Tribunal’s decision about the applicant’s MIG status had consideration for the full medical history and the trajectory of the case, as well as the more recent medical records and diagnoses.

74The insurer has not established grounds for a reconsideration on account of an error over the weighing of the evidence with regard to there being an alleged lack of evidence of neurological impairment.

iv) Misapplication of Res Judicata

75I find that I did not make an error of law due to a misapplication of the doctrine of res judicata with regard to the s. 25 report of Dr. Basile.

76The respondent submits that I made a significant error of law in concluding that Dr. Basile’s report was previously unavailable, highlighting my statement at paragraph 16 of the decision that there was no reason to believe the applicant should have consulted this specific medical expert sooner.

77I disagree with the respondent’s characterization of paragraph 16 of the decision. I did not say the report of Dr. Basile was previously unavailable, but that rather, there was no reason to believe the applicant should have arrived at this consultation any earlier. Dr. Basile’s expert opinion was pursued by the applicant in the natural course of seeking treatment over time, to address her ongoing and evolving symptomology.

78While the respondent goes on to cite case law supporting the meaning of “unavailable” in the context of res judicata, this is unnecessary as res judicata was not invoked. The MIG determination was made on a new basis, not previously adjudicated – a diagnosis of neurological impairment was not addressed in the two prior decisions. Therefore, res judicata is not relevant.

79The insurer has not established grounds for reconsideration on account of a misapplication of res judicata. The doctrine was not applied.

v) Onus of Proof

80I find that the Tribunal did not reverse the onus of proof by requiring the respondent to obtain a new or updated s. 44 report.

81The respondent submits that I erred when I stated that there was no competing, that is contemporaneous, s. 44 report available, because the previous s. 44 insurer’s examination dated to over a year and half earlier. It argues that in making mention that one does not exist, I required the respondent to disprove Dr. Basile’s conclusions, constituting an error of law. The respondent argues that the Tribunal has a duty to not only consider expert reports but weigh them in the context of the whole of the evidence.

82The applicant submits that at paragraph 36 of the decision, the Tribunal had consideration for all the previous evidence, in addition to the new evidence. I agree given that this paragraph indicates that the diagnosis of Dr. Basile is the only evidence that accounts for the applicant’s persistent symptomology since the accident, especially since there is no other intervening event that could account for it.

83Thus, the Tribunal did not require that the respondent obtain a new or updated s. 44 report, but only observed that without one there was no contemporaneous evidence to compare against Dr. Basile’s diagnosis.

84The respondent has not established grounds for reconsideration on account of a reversal of the onus of proof.

Conclusion

85The respondent argues that the Tribunal made errors of fact and law which resulted in a violation of procedural fairness. As outlined above, the respondent has not established an error of fact or law and there was no violation of procedural fairness.

ORDER

86The applicant’s and the respondent’s requests for reconsideration are both dismissed.

Bonnie Oakes Charron

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal