RECONSIDERATION DECISION
Before: Mary Henein Thorn
Licence Appeal Tribunal File Number: 23-014867/AABS
Case Name: Jennifer Jones-Whyte v. Intact Insurance Company
Written Submissions by:
For the Applicant: John Philp, Counsel
For the Respondent: Sabina Arulampalam, Counsel
OVERVIEW
1On January 24, 2025, the applicant requested reconsideration of the Tribunal’s decision dated January 7, 2025 (“decision”).
2Following a videoconference hearing, I issued the decision. In the decision, I found that the applicant is not:
i. catastrophically impaired (Criterion 8) as defined by the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”);
ii. entitled to an award under s. 10 of Reg. 664; and
iii. entitled to interest in accordance with s. 51 of the Schedule.
3I found the applicant did not establish on a balance of probabilities that she is catastrophically impaired under criterion 8. The parties agree the applicant has a (class 4) marked impairment in the area of Adaption and a moderate impairment in the area of Social Functioning. The parties disagreed on the level of impairment in the spheres of Activities of Daily Living and Concentration, Persistence and Pace. The applicant’s assessors determined she has a marked impairment in these spheres and the respondent’s assessors determined she suffers a found moderate impairment (class 3).
4I found the applicant does not have a catastrophic impairment as she does not suffer from 3 marked impairments.
5The 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.
6The applicant is requesting reconsideration, pursuant to Rule 18.2(a) and Rule 18.2(b), with respect to a catastrophic impairment (Criterion 8). She is seeking the order be set aside in its entirety and a new hearing ordered. The respondent argues the applicant’s request for reconsideration should be dismissed.
7The respondent submits that the Tribunal made no error, and that, if any error was made, which is denied, the error is not one for which the Tribunal can provide a remedy on reconsideration. The respondent also submits that the applicant has not established any of the criteria for reconsideration and requests that the reconsideration request be dismissed.
RESULT
8The applicant’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.
Rule 18.2 (a) – The Tribunal acted outside of its jurisdiction or committed a material breach of procedural fairness.
10The applicant submits that I acted outside of my jurisdiction or committed a material breach of procedural fairness.
The Tribunal did not act outside of its jurisdiction or commit a material breach of procedural fairness.
11I find that the applicant has not established that I acted outside of my jurisdiction, nor did the applicant establish that I committed a material breach of procedural fairness. The applicant has not established grounds for the reconsideration of these issues under Rule 18.2(a).
12The applicant submits that I committed a material breach of procedural fairness by restricting the applicant’s testimony to 1.5 hours in examination in chief from 5 hours, and then by giving the rest of the witnesses 1 hour to testify.
13The applicant submits that I committed a material breach of procedural fairness by prioritizing the efficiency of the hearing and limiting the length of the applicant’s testimony from the requested 5 hours to 1.5 hours. Consequently, she asserts that she could not “effectively participate” and was, therefore, denied a full and fair opportunity to present her case.
14In an effort to expedite the hearing, the applicant pared down her witness list. As such, there was more time within the scheduled five day hearing to give the witnesses time to testify.
15After several objections from the applicant, I later extended the allowable time for Dr. Eisen and Dr. Gnam from 1 hour to 1.5 hours for examination in chief and cross examination. Further, she asserts that I made this decision without notice to the parties, which is in direct violation of principles of procedural fairness.
16She submits that I failed to adhere to the duty under Rule 3.1(a), i.e., “Facilitate a fair, open and accessible process and to allow effective participation by all parties, whether they are self-represented or have a representative.”
17In support of her position, she points me to paragraphs 36-37 of the Supreme Court of Canada’s decision, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, as well as the Divisional Court’s case in Plante v. Economical Insurance Company, 2024 ONSC 7171 (“Plante”), at para. 2.
18The respondent disagrees with the applicant’s position, and it submits that both counsel and I discussed the hearing schedule and length of the witnesses testimony, I took submissions from the parties and made a ruling. It also points to the Case Conference Report and Order (dated May 21, 2024), which indicates that any witness timetable agreed upon by the parties is “subject to the hearing adjudicator’s discretion.” It is up to the adjudicator to make sure the hearing proceeds in a timely manner and to make sure the oral testimony provided supplements the expert evidence provided by both parties in their briefs. The applicant has not provided any authority that suggests that, because she reduced the number of witnesses, the hearing must run for five days, and the applicant should be allotted more time to testify.
19I do not find the applicant has established that the manner I used to place time limits on the in-chief examination and cross-examination of the witnesses during this hearing was procedurally unfair.
20Section 23(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (“SPPA”) provides administrative tribunals with the authority to control their proceedings to ensure hearings proceed in a timely and efficient manner.
21At the start of the hearing, I worked together with the parties to organize a witness schedule which would accommodate the number of days allotted for the hearing. I took submissions from each counsel and made a ruling accordingly. Each party was allotted the same amount of time.
22Further into the hearing the applicant objected to the time allotted for each witness and gave further submissions that the witnesses should have more time to testify. I was somewhat persuaded by the applicant’s submission and had no objection from the respondent, so I extended the witnesses testimony of the expert witnesses by an extra 30 minutes.
23In the Plante decision the hearing adjudicator disallowed the applicant to call four witnesses and limited the length of the hearing from 20 days to five. The applicant in this hearing was not prohibited from calling any witnesses, nor was the hearing days reduced.
24Within the hour of the applicant’s testimony, she was able to succinctly provide me with a description of her injuries and was able to describe how her injuries affected her activities of daily living as it pertained to a catastrophic impairment.
25The applicant has not demonstrated that, by limiting the applicant’s testimony to one hour, I acted outside of my jurisdiction, or committed a material breach of procedural fairness such that I would likely have reached a different result had the error not been made.
Rule 18.2 (a) (b) I did not act outside of my jurisdiction or committed a material breach of procedural fairness and/or make an error of law or fact such that it would likely have reached a different result had the error not been made.
26The applicant submits that I acted outside of my jurisdiction or committed a material breach of procedural fairness and/or made the following errors of law and/or fact:
a. I committed a legal error by misinterpreting Criterion 8 and gave weight to a “faulty expert report”;
b. I committed legal error by not including a comparative analysis to the Applicant’s pre-vs. post accident circumstances under Concentration Persistence and Pace;
c. I allowed the respondent’s expert witness, Dr. Eisen, to testify outside of the “four corners” of his report; and
d. I should have given little or no weight to Dr. Eisen’s findings because he used the “wrong test”.
I did not err in law by giving weight to a “faulty expert report” and misinterpreting Criterion 8
27The applicant submits I improperly considered the meaning of “useful functioning” and its impact on the Criterion 8 requirements as intended by the Schedule. She further asserts that, if I had not truncated her testimony, her daughter’s testimony, and Dr. Gnam’s testimony, I would not have made the error.
28The respondent argues that the hearing adjudicator is entitled to deference and the assignment of weight to a report or opinion is up to the finder of fact, as per the finding of the Supreme Court in R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 29. According to the respondent, the applicant has not demonstrated an error of law in this case.
29I find the applicant’s submissions that I erred in law and/or fact amount to an attempt to reweigh the evidence which I have already considered. Her main assertion is that I gave weight to a “faulty expert report”” and misinterpreted Criterion 8. She refers to Dr. Eisen’s report and testimony where he indicated that he found the applicant’s impairment levels are compatible with “much but not all useful functioning” in the domain of Activities of Daily Living. The correct test under the American Medical Association Guides is “impairment levels are compatible with some, but not all useful functioning”. Throughout paragraphs 19-68 of my decision, I provided a detailed analysis of the applicant’s claim, based on the merits of the case and using a balance of probabilities as the evidentiary standard. I was not persuaded that the applicant met her onus. I do not agree with the applicant that I misinterpreted Criterion 8 and gave weight to a faulty report.
30Given that I was not persuaded by the applicant’s assessors findings, I do not find a lengthier testimony from the applicant and/or her witnesses would have resulted in a different outcome.
31I find the applicant has not shown that I made an error of law or fact such that I would likely have reached a different result had the error not been made. The applicant has not established grounds for the reconsideration under Rule 18.2(a) or (b).
I did not err in law in my analysis in the sphere of Concentration, Persistence and Pace (“CPP”)
32In the applicant’s request for reconsideration, she submits I improperly applied the principles of statutory interpretation. By not properly applying the principles, she submits I did not consider whether the applicant proved Class 4 impairments in ADL’s and CPP especially since she satisfied the Class 4 criteria in the sphere of Adaption. It is her submission I did not consider whether or not the applicant based on her unique experiences in life still had “useful functioning” in those two domains after the accident. I provided a detailed analysis in paragraph 47 in my decision but not throughout the entire decision.
33The respondent takes a different position. It submits that I did in fact provide a detailed analysis and reasons for my findings which also included why I chose to give less weight to medical reports which can be found in paragraphs 19-68 of my decision.
34Paragraph 47-69 acknowledges the evidence of both parties with some analysis and paragraph 67 provides a comprehensive analysis and why I was not persuaded by the evidence pertaining to this sphere.
35I am satisfied the applicant has not demonstrated I made an error of law or fact such that I would likely have reached a different result had the error not been made. The applicant has not established grounds for the reconsideration under Rule 18.2(b).
No breach in procedural fairness and no error in law pertaining to the scope of expert’s report and testimony
36The applicant objected to the allowance of a line of questioning from respondent’s counsel to Dr. Eisen about Dr. Gnam’s report. She submits it was trial by ambush, a procedural breach of fairness and an error of law and a breach of the basic tenant of the common law in Ontario to not allow an expert to testify outside the scope of his or her expert report, or, put another way, outside the “four corners” of the report, as explained in Court of Appeal for Ontario in Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham, 2000 CanLII 16946 (ON CA).
37The respondent disagrees with the applicant, and it submits that I was within my authority to permit Dr. Eisen to comment on Dr. Gnam’s report during the hearing. The reasoning is that Dr. Eisen had reviewed and given consideration to Dr. Gnam’s report well before he drafted his report, which makes it within the “four corners” of his report.
38Dr. Gnam, on the other hand, did not review Dr. Eisen’s report, as it did not exist at the time he prepared his report. Since the applicant did not obtain a rebuttal report, it would have been procedurally unfair to allow the applicant’s request to let Dr. Gnam comment on a report that he didn’t touch on in his report, that would make it outside of the “four corners” of his report and would be procedurally unfair.
39I disagree that this amounts to an error of law that would have changed the outcome of my decision. Given that the applicant did not provide a rebuttal report for Dr. Gnam to comment on, it does not fall within the Court of Appeal’s framework of the “four corners”. I find it would have been procedurally unfair to have Dr. Gnam provide testimony for a report he did not review and did not comment on in any report provided.
40As such, I am satisfied that the applicant has not shown that I made an error of law or fact such that I would likely have reached a different result had the error not been made. The applicant has not established grounds for the reconsideration under Rule 18.2(b).
CONCLUSION & ORDER
41For all of the above-noted reasons, the applicant’s reconsideration request is dismissed.
Mary Henein Thorn
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: May 1, 2025