RECONSIDERATION DECISION
Before: Rebecca Hines
Licence Appeal Tribunal File Number: 22-014081/AABS
Case Name: Roxana Khoshsokhan v. Pembridge Insurance Company
Written Submissions by:
For the Applicant: Sherilyn Pickering, Counsel
For the Respondent: Oliver Gorman-Asal, Counsel
BACKGROUND
1The applicant is seeking a reconsideration of my decision released on February 5, 2025 (“decision”), where I determined that the applicant was not entitled to an attendant care benefit and various medical benefits and cost of examination expenses.
2The grounds for a reconsideration to be allowed are set out in Rule 18.2 of the Licence Appeal Tribunal Rules 2023 (the “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.
3In her request for reconsideration, the applicant identifies criteria a) and b) of Rule 18.2 as the basis for reconsideration and argues that I committed a material breach of procedural fairness in rendering my decision and made several errors of law such that the Tribunal would have reached a different result had the errors not been made.
4The respondent opposed the applicant’s reconsideration request and argues that my decision is correct, and that the applicant is attempting to relitigate the same position that was already considered by the Tribunal at the hearing.
RESULT
5The applicant’s request for reconsideration is dismissed.
ANALYSIS
6Under Rule 18.2, the threshold for reconsideration is high. Reconsideration is a limited, error-correcting exercise, not a new hearing or an appeal of a hearing decision. The party requesting reconsideration must demonstrate how the Tribunal’s decision falls into one or more of the criteria set out in Rule 18.2.
I did not commit a material breach of procedural fairness in rendering my decision.
7The applicant submits that I committed a material breach of procedural fairness in rendering my decision by addressing issues that were not raised by either party, which the applicant was not able to address. She submits that I breached procedural fairness in the following ways:
i) In paragraph [27] of my decision where I note that the applicant relied on very few post-accident clinical notes and records (“CNRs”) of her family doctor;
ii) In paragraph [33] of my decision where I state that the applicant did not submit the treatment plan (“OCF-18”) in the amount of $3,342.28 for occupational therapy submitted December 14, 2021, as evidence for this hearing;
iii) In paragraph [34] of my decision where I indicate that the applicant did not make any submissions for why the denied portions of the three OCF-18s in the amounts of $180.14; $30.51; and $310.67 which were partially approved are reasonable and necessary; and
iv) In paragraph [42] of my decision in my finding that despite undergoing the speech language therapy assessment, the applicant did not submit the report as evidence for the hearing.
8The respondent submits that I did not commit a material breach of procedural fairness in paragraphs i) to iii) cited above because it did argue that the applicant made very few visits to her family doctor post-accident in paragraph (8) of its submissions. Further, it argued in paragraphs (25) to (27) of its submissions that the applicant failed to make meaningful submissions regarding the OCF-18s in dispute and did not address the denied portions of the OCF-18s at all in her submissions. I agree with the respondent that it did make these arguments in its initial submissions for the written hearing. Moreover, the applicant filed reply submissions and had the opportunity to respond to these arguments. Consequently, I find that I did not commit a material breach of procedural fairness in making the above-noted findings in my decision.
9The applicant argues that she failed to submit the above-noted OCF-18 for occupational therapy by error and it was procedurally unfair for me to consider this point in making my decision that it was not reasonable and necessary because it was not raised by the respondent. The applicant also submits that the respondent did not raise the argument that the speech language therapy report was not submitted.
10The applicant relies on the Divisional Court’s decision in Shahin v. Intact Insurance Company, 2024 ONSC 2059 (“Shahin”) in support of her position that it is a breach of procedural fairness for an adjudicator to consider evidence or arguments not raised by the parties in rendering their decision. In Shahin, the court found that the panel breached procedural fairness for several reasons: The Tribunal gave weight to an insurer examination (“IE”) report when the expert testified in chief but did not make themselves available for cross-examination. Additionally, the court found that the Tribunal considered causation when it was not raised by the parties. Finally, the Tribunal unfairly relied on documents to the insured’s detriment that was not referenced by the parties when it instructed the parties that it would only be considering documents pinpointed by counsel.
11The respondent argues that the facts highlighted in Shahin are distinguishable from the facts in this case because it involved an oral hearing versus a written hearing and there were numerous procedural breaches based on unique facts. The respondent relies on the Divisional Court’s decision in Dooman v. TD Insurance Co., 2025 ONSC 184 (“Dooman”) where the court determined that the Tribunal did not breach procedural fairness by finding illegible CNRs unhelpful even though it was not raised by the parties. The Court also highlighted that it is not the Tribunal’s role to fill in evidentiary gaps in the evidence.
12I agree with the applicant that the respondent did not raise the fact that the applicant failed to submit the OCF-18 for occupational therapy and speech language therapy report in its submissions. However, I disagree with the applicant that I committed a material breach of procedural fairness in paragraph [33] of my decision where I indicated that because the OCF-18 was not submitted I had no evidence before me about the goals of the OCF-18, whether any past treatment had been helpful or whether the cost was reasonable. I concluded that the applicant had not met her onus. Of note, the respondent also did not submit evidence that it relied on for the written hearing whether by administrative error or oversight. In paragraphs [27] and [60] I highlighted this even though the applicant did not raise the issues in reply submissions, so I find that I was balanced in my approach.
13I find that I did not commit a material breach of procedural fairness because the applicant made an error by not submitting evidence which was central to the issue in dispute. Moreover, the applicant’s submissions failed to address the OCF-18 and make arguments regarding the legal test so this alone would not have changed the result. I find it was reasonable for me to conclude that the applicant did not meet her onus in proving entitlement to the benefit and that this was one of the reasons.
14I also find that my statement in paragraph [42] that the applicant did not rely on the speech language report even though it was incurred was not material or the main reason why I did not find the applicant established entitlement to the issue in dispute. In paragraph [41] to [43] I provided detailed reasons for why I determined that the applicant did not meet her onus in proving entitlement to the benefit.
15In addition, I find that the facts in Shahin are distinguishable from this case because in that case the panel advised the parties that it would not consider evidence unless one of the parties directed them to it and then relied on various documents which were not relied upon to impeach the insured’s credibility. This was not done in the present case. Further, this was a written hearing which the parties agreed to at the case conference which is very different procedurally from an oral hearing. While procedural fairness is a must in both oral and written hearings, the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC) at para. 22 reminds us that the content of procedural fairness is flexible. I also find the scenario in Dooman more applicable to this case because the adjudicator concluded that the CNRs of the insured’s family doctor were not helpful because they were not legible. In this case, the applicant did not submit the OCF-18 for an issue in dispute which like Dooman did not assist the applicant’s case. I also agree with the court that it is not the Tribunal’s role to fill in evidentiary gaps made by the parties whether by oversight or error. Finally, for the reasons already noted above submission of the OCF-18 would not have changed the result.
16For the above-noted reasons, I find that I did not commit a material breach of procedural fairness in rendering my decision.
I did not make numerous errors of law such that I would have reached a different result had the error not been made.
17The applicant argues that I made numerous errors of law such that I would have reached a different result had the errors not been made. In summary, she submits that I erred in law in my assessing her self-reports of dizziness, her family doctor’s conclusions about same and in my determination that the report of Ms. El Jerbi, occupational therapist (“OT El Jerbi”) was wholly inconsistent. She also submits that I misapprehended the evidence of Dr. Hope and Dr. Rockman. Further, I erred in law in my determination that the catastrophic assessments were not incurred.
18I find it unnecessary to address every allegation raised by the applicant above because crucially I find that she is relitigating the issues in dispute which were already considered by me in the initial hearing. Alternatively, I find that she is asking for a wholesale reweighing of the evidence. It is well established law that this is not the purpose of a reconsideration.
19In paragraphs [7] to [66] of my decision I provided very detailed reasons where I made findings of fact based on the arguments and evidence relied upon by both parties in making my determination on all of the issues in dispute. I find that the applicant simply disagrees with my decision.
20I find that I made no error in law in my findings of fact or my analysis regarding the applicant’s reports of dizziness, the family doctor’s CNR discussing the cause of same or OT El-Jerbi’s recommendations for attendant care because of it. However, I find that even if I did err in not giving this evidence more weight it would not have resulted in a different decision because I determined that OT El Jerbi’s attendant care assessment was wholly inconsistent when discussing the applicant’s functional limitations. I provided examples of the numerous inconsistencies in paragraph [12] of my decision. The applicant has not persuaded me that I erred in law in my assessment of this evidence.
21In the same vein, I find that I made no error in law in assessing the arguments and evidence regarding the OCF-18s in dispute. I did not misapprehend the evidence of Dr. Hope, Dr. Rockman or OT El Jerbi. Nor do I find that I erred in law in my legal analysis in my finding that the catastrophic assessments were not incurred.
22For the above-noted reasons, I find that the applicant has not met her onus in proving that I erred in law in my application of the law or consideration of the parties’ evidence which would result in an alternative decision.
ORDER
23For all the above-noted reasons, the applicant’s request for reconsideration is dismissed.
Rebecca Hines Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: May 9, 2025