RECONSIDERATION DECISION
Before: Dagmara Szczudlo
Licence Appeal Tribunal File Number: 23-005984/AABS
Case Name: Kayla Howlett v. BelairDirect Insurance Company
Written Submissions by:
For the Applicant: Piera Segreto, Counsel
For the Respondent: Hue Nguyen, Counsel
OVERVIEW
1On March 7, 2025, the applicant requested reconsideration of the Licence Appeal Tribunal (“Tribunal”) decision dated February 13, 2025 (“decision”).
2Following a three-day videoconference hearing, I released the decision and found that the applicant was not entitled to post-104 income replacement benefits (“IRB”), several of the disputed treatment plans, an award, and costs. I found that the applicant was entitled to a passenger/driver assessment treatment plan and 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.
4The applicant is seeking reconsideration pursuant to Rule 18.2(a) and Rule 18.2(b). The applicant submits that the Tribunal acted outside its jurisdiction and committed a material breach of procedural fairness. The applicant also submits that the Tribunal made errors of law and fact such that the Tribunal would likely have reached a different result had the error not been made.
5Specifically, the applicant submits that the Tribunal deprived the applicant of a fair hearing and identified procedural irregularities that compromised the integrity of the proceeding, in addition to errors of law and fact.
6The respondent argues that the request for reconsideration should be dismissed.
RESULT
7The applicant’s request for reconsideration is dismissed.
ANALYSIS
8The 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 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): Material breach of procedural fairness
9I find that the applicant has not established that the Tribunal committed a material breach of procedural fairness pursuant to Rule 18.2(a).
10The applicant submits that I committed a material breach of procedural fairness when I permitted the respondent to rely on three experts (Dr. Rodney Day (psychologist); Dr. Pankaj Bansal (general practitioner), and Mr. Luigi Grimaldi (vocational assessor)), despite several experts not producing their clinical notes and records (“CNRs”), expert duty forms and curriculum vitae (“CVs”) as per Rule 10.2 of the Common Rules. Furthermore, the applicant argues that I denied the applicant the right to cross-examine Ian Heritage, an adjuster, despite his attendance at the hearing, and submitted that this was procedurally unfair because the respondent had undertaken to produce him for testimony at the hearing.
11The respondent submits that the applicant’s reconsideration submissions are the same as her motion submissions at the hearing, and that the Tribunal did not breach procedural fairness.
12I do not agree with the applicant’s submissions and find the applicant has not shown that I committed a material breach of procedural fairness. I find that the applicant is attempting to re-litigate my procedural decisions from the hearing. The reasons for the procedural decisions are noted at paragraphs 14 to 34 of the decision, and I find that the applicant has not shown how these procedural decisions deprived her of a fair hearing or constitute material breaches of procedural fairness warranting reconsideration.
13Specifically, the applicant argues that natural justice requires that, if the respondent wants to rely on the opinion of their experts at a hearing, then CNRs from those experts must be produced. This is not an argument which was raised at the hearing, as the applicant’s submissions at the hearing were directed at the absence of CNRs from Dr. Day only, not the other experts. I am not persuaded by this new argument, and do not see how CNRs from s. 44 assessments would specifically have assisted me in evaluating entitlement to benefits when it was the final s. 44 reports which were subject to testimony and cross-examination. I am alive to the applicant’s concern regarding the ghostwriting of assessment reports; however, the applicant has the burden of proof to go beyond a mere suspicion.
14I find the applicant’s characterization that I denied the applicant the right to cross-examine a witness in attendance at this hearing is inaccurate. In order to cross-examine a witness, there must first be an examination-in-chief. Mr. Heritage did not testify at the hearing, and he did not appear on the applicant’s nor the respondent’s final witness lists. The applicant argues that a witness list was submitted and filed in a letter dated July 26, 2024 where an accident benefits adjuster was listed for cross-examination, however as quoted from the letter “a summons would not be issued as the respondent had undertaken to call them as witnesses”. I note that the accident benefits adjuster listed in this letter was Sylvia McBride, not Mr. Heritage. I also note that the respondent’s final witness list was filed with the Tribunal on July 31, 2024 in accordance with the Tribunal’s rules and does not contain either accident benefit adjuster. If the applicant wished to cross-examine an adjuster, the option to request a summons was available but not utilized.
15The applicant argues that denying her the opportunity to cross-examine Mr. Heritage allowed Mr. Grimaldi (vocational assessor) to rely on hearsay evidence as fact. Again, I disagree that the applicant was denied the opportunity to cross-examine Mr. Heritage because he was not listed as a witness and did not testify at the hearing. Further, the applicant’s submissions do not elaborate on which specific evidence from Mr. Grimaldi she believes is hearsay evidence. However, I find that this is another attempt to argue that Mr. Grimaldi’s report should be given zero weight because the applicant’s pre-loss occupation was not a painter/artist. The reasons for disagreeing with this argument are outlined in paragraph 51 of the decision.
16The applicant also cites a recent Divisional Court decision Plante v. Economical Insurance Company, 2024 ONSC 7171 as support for her argument that she was denied procedural fairness when Mr. Heritage did not testify. However, I find the facts between this hearing and Plante differ. The reasons for denying the applicant’s oral motion for Mr. Heritage to testify are outlined in paragraphs 18 to 22, and I am satisfied that the applicant has not shown that this procedural decision deprived her of a fair hearing where Mr. Heritage was not called as a witness. Consequently, I find the applicant’s allegation that I breached the rules of procedural fairness in denying the oral motion for Mr. Heritage to testify at the hearing to be unfounded and distinguishable from Plante because I followed a procedure that was fair to all parties, including Mr. Heritage, and stopped an unsummoned witness from testifying at the hearing.
17Finally, the applicant brought up an allegation of bias similar to the one raised during the hearing, and she stated that my reasoning in paragraphs 28 to 34 of the decision “is a ‘revisionist history and patently false’”, again referencing Plante. As outlined in paragraphs 28 to 34 of the decision, I find that the applicant has not proven that I exhibited a reasonable apprehension of bias in my conduct during the hearing. Although there were oral reminders issued for time remaining during the cross-examination of Dr. Day, and there were internet connectivity disruptions during the hearing, I find that an informed person, viewing the matter realistically and practically would not conclude that I, as the decision maker, would not decide fairly in this matter.
18Overall, I find that the applicant is asking me to reconsider the arguments that were already addressed in the decision. As highlighted above, this is not the purpose of a reconsideration request. The applicant also argues that I granted the respondent flexibility, but imposed strict compliance on the applicant, exacerbating an already imbalanced process. I disagree with this argument. Procedural decisions were made based on the submissions from the parties and there were instances where the respondent also opposed the decisions I made. However, disagreement with procedural orders made in the course of a hearing does not mean that a breach of procedural fairness occurred.
19Accordingly, I find that the applicant has not shown that I committed a material breach of procedural fairness. As such, the applicant has not established grounds for a reconsideration of the decision under Rule 18.2(a).
Rule 18.2(b): Error of law or fact
20I find that the applicant has not established that I made an error of law or fact in my determination that the applicant is not entitled to a post-104 IRB.
21The applicant argues that I made errors of fact and law by failing to consider the applicant’s oral evidence; using flawed reasoning; failing to accurately weigh Mr. Grimaldi’s report and accepting errors in the report; failing to “holistically consider” the medical and oral evidence; and assigning less value to Dr. Kingston’s report and diagnosis.
22The respondent submits that the applicant failed to demonstrate that the decision contained any errors of law or fact such that the Tribunal would likely have reached a different result had the error not been made. It submits that the applicant did not meet her onus at first instance, and that the reconsideration request should be dismissed entirely.
23The applicant submits that I made an error of law and fact by ignoring the applicant’s evidence of her passion for clinical psychology and medicine. While the applicant testified that she intended to pursue medical school after graduation from her dual degree in Psychology and Fine Arts, in my decision, I highlighted evidence that I considered more relevant to the issues in dispute, specifically: the applicant’s part-time roles while completing her studies and her post-accident employment. The applicant also argues on reconsideration that there was no evidence before me that she obtained a degree in a Fine Arts program. This is puzzling, as on one hand, she alleges I failed to consider her oral evidence that she intended to pursue medical school, and on the other hand, that I erred in accepting her oral evidence that she completed a degree in Fine Arts without actual evidence. I am not satisfied that the applicant has shown how the inclusion of this oral evidence would likely have led to a different conclusion in relation to post-104 IRB because the legal test requires that I consider educational background, training, and experience, not aspirations.
24The applicant states that my reliance on Mr. Grimaldi’s Transferable Skills Analysis (“TSA”) report was unreasonable since the document was fundamentally flawed. The applicant raised this point during the hearing, and I addressed this submission in paragraph 51 of the decision. Once again, the reconsideration process is not meant to be venue for re-litigating arguments made at first instance, and I am not satisfied that the applicant has shown a legal or factual error in my analysis of this report.
25Similarly, the applicant states that I did not give sufficient evidentiary weight to Dr. Kingston’s diagnosis of a minor traumatic brain injury (“mTBI”) and that more deference should be given to the neurologist, as opposed to the family doctor, in diagnosing a concussion and TBI. If both doctors made their diagnoses in the same time interval, i.e. shortly after the accident, I would agree with the applicant and would likely assign more weight to the opinion of the neurologist. However, as outlined in the decision at paragraph 43, Dr. Kingston’s diagnosis was made in April 2023, five years after the accident, while records from the family doctor in the immediate aftermath of the accident do not include such a diagnosis. I addressed Dr. Kingston’s report in paragraph 43 of the decision and re-state that Dr. Kingston did not opine on the impact of the mTBI on her ability to carry on employment, limitations in adaptations to work-like settings, nor the post-104 IRB test that I applied.
26As indicated at paragraphs 37 to 58, I considered the applicant’s submissions and evidence, including the opinions of Dr. Kingston and Dr. Melnyk, and found that the applicant had not met her burden of proof for entitlement to post-104 IRB. The fact that the applicant would have preferred that I reached a different conclusion based on my review of the evidence does not render the reasons provided insufficient, nor does it demonstrate that I made an error of law or fact that would have change the outcome. In my decision, I highlighted the evidence that I considered more relevant to the issues in dispute, assigned the weight accordingly, and concluded that the applicant had not satisfied her burden of proving her entitlement to the disputed benefits. I see no error in law or fact.
27Accordingly, I find that the applicant has not demonstrated that I made an error of law or fact. As such, the applicant has not established a ground for reconsideration under Rule 18.2(b).
CONCLUSION & ORDER
28The applicant’s request for reconsideration is dismissed.
Dagmara Szczudlo
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: May 16, 2025