Yaa Nuroh v. TD General Insurance Company, 2025 CanLII 49203

Citation: Nuroh v. TD General Insurance Company, 2025 ONLAT 23-008965/AABS-R

RECONSIDERATION DECISION

Before: Amar Mohammed

Licence Appeal Tribunal File Number: 23-008965/AABS

Case Name: Yaa Nuroh v. TD General Insurance Company

Written Submissions by:

For the Applicant: Doug Wright, Counsel Melissa Gizzo, Counsel

For the Respondent: Jennifer Kiss, Counsel Argita Shehaj, Counsel

OVERVIEW

1On December 12, 2024, the applicant requested reconsideration of the Tribunal’s amended decision, The original Tribunal decision is dated November 21, 2024 and the amended decision dated December 4, 2024 (“decision”). The respondent also requested reconsideration of the Tribunal’s decision on the same date. This reconsideration decision addresses the reconsideration requests of both parties, first addressing the respondent’s request and then the applicant’s request.

2The Tribunal’s decision resolved the disputes between the parties pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was found to be:

a. Entitled to an income replacement benefit (“IRB”), plus interest on any overdue payments;

b. Not catastrophically impaired as defined by s. 3.1(1)8 of the Schedule,

c. Not entitled to attendant care, housekeeping and home maintenance benefits, a treatment plan/OCF-18 for physiotherapy services, or an award.

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 respondent is arguing its request based on the criteria in Rule 18.2 b., specifically arguing that I made an error of law. The respondent requests a variance of paragraphs 3(ii), 5, 40, 46, and 62(ii) of the decision to include the proposed language, “less any applicable deductions for post-accident income”. In the alternative, the respondent requests a rehearing limited to the issue of entitlement of IRBs in the amount of $400.00 per week from January 10, 2022 to January 31, 2023 (104-weeks post-accident). The applicant’s position is that the respondent’s reconsideration request should not be considered by the Tribunal because a previous request to amend the decision by adding the same proposed language was made under Rule 17 and was denied. As a result, the applicant argues the appropriate avenue for the respondent’s request is an appeal to the Divisional Court.

5The applicant is arguing her request based on the criteria in Rule 18.2(a) and (b), specifically arguing a material breach of procedural fairness and an error of law. The applicant requests a rehearing, based on the existing record, with a different adjudicator. The respondent’s position on this request is that it should be dismissed because the applicant is attempting to re-litigate her position, and that she has not established a material breach of procedural fairness or that the Tribunal made an error of law.

RESULT

6The reconsideration requests of the applicant and the respondent are dismissed.

7The respondent’s request for costs is denied.

PROCEDURAL ISSUES

Late filed submissions by the applicant

8The respondent’s request that I disregard the applicant’s submissions responding to the respondent’s request for reconsideration is denied.

9The respondent, in its reply submissions, requests that the I disregard the applicant’s submissions responding to the respondent’s request for reconsideration because they were received after the due date. The respondent submits that the applicant’s submissions were due by January 22, 2025 as required by the Reconsideration Order dated December 19, 2024. However, the respondent submits that the applicant’s submissions were received after 5:00 PM and, according to Rule 6.5, they are therefore deemed to have been received the next day that is not a holiday.

10The applicant did not address the late submissions.

11I agree with the respondent and find that the applicant’s submissions were filed late, as they were received on January 23, 2025.

12I decline to disregard the applicant’s submissions in this instance of late filing because the respondent’s request was not supported by evidence of any prejudice arising from the late filing. The respondent was able to file its reply submissions which address the applicant’s late filed submissions. On this basis, and to ensure procedural fairness, the respondent’s request to disregard the applicant’s late filed submissions is denied.

Second attempt by the respondent

13The applicant’s request that I dismiss the applicant’s reconsideration request is denied.

14The applicant requests that I dismiss the respondent’s reconsideration request because it made a previous request to amend the decision under Rule 17 which was denied. As a result, the applicant argues this is a second attempt to amend the decision and the respondent’s request should be appropriately brought as an appeal to the Divisional Court.

15The respondent’s position is that its request for a reconsideration under Rule 18 is not a second attempt to amend the decision under Rule 17. I agree with the respondent, and I do not find that the respondent’s request is a second attempt to amend the decision. The respondent may request an amendment under Rule 17 as it did and may also request a reconsideration under Rule 18. Each of Rules 17 and 18 engage a unique analysis. For these reasons, the respondent’s request is not dismissed.

ANALYSIS

16The 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.

The respondent’s request for a variance of the decision or a limited re-hearing on the issue of IRB, is dismissed.

17I find the respondent has not established grounds for reconsideration because it did not demonstrate that 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.

18The respondent argues that the decision contains an error of law where it states that the applicant is entitled to an IRB without also including additional language regarding deductions. The respondent argues it is an error of law to make the order regarding entitlement of an IRB without including the proposed phrase "less any applicable deductions for post-accident income".

19In support, the respondent argues that section 7(3) of the Schedule gives insurers the right to make deductions based on an applicant’s post-accident income. The respondent argues not including this right in the decision could lead to an interpretation that deductions mentioned in the Schedule are not to be applied to the applicant’s post-accident income. In my view, paragraphs 41 and 42 of the decision are sufficiently clear to avoid this interpretation.

20The respondent believes that I did not include the proposed language because it ought to be known to the parties and could be considered “trite law”. The respondent refers to a previous Tribunal decision, de Boyrie v TD Insurance Meloche Monnex, 2023 CanLII 101050 (ON LAT) (“de Boyrie”), in which the proposed language was not included in the original decision but was added upon reconsideration. However, de Boyrie is distinguishable because at paragraph 14 of that decision the Tribunal found an error in law or fact when it had ordered an IRB quantum without accounting for evidence of deductible post-accident income that was properly before it.

21I considered that I may resolve disputes in accordance with the Schedule arising out of s.280(1) of the Insurance Act, R.S.O. 1990, c. I.8 with respondent to entitlement to benefits or in respect of the amount of benefits. In my view, it is up to the parties to argue and make clear for the Tribunal their positions, the dispute between them, and presenting their arguments and evidence in support of their positions. In this instance, the decision is clear in stating at paragraphs 41 and 42 that the parties only engaged with s. 5(1) of the Schedule as it relates to the IRB dispute.

22In my view, since s.7(3) of the Schedule was not disputed and argued at the hearing, it is not an error of law or fact that the decision does not engage with it. The decision neither accounts for deductible post-accident income nor does it ignore s.7(3) of the Schedule, rather it is silent on this fresh issue raised after release of the decision.

23Whether or not the parties ought to know if s.7(3) applies or how it applies, or whether or not it is considered “trite law”, as suggested by the respondent, is not relevant. In this reconsideration request, the parties have not engaged with the procedural fairness protections that are afforded to parties before the Tribunal. While the respondent’s request is not arguing that the original decision did not afford the parties procedural fairness protections, I must continue to consider procedural fairness when making reconsideration decisions. I considered the protections relating to notice and the right to be heard. It is well established that parties must be given enough information about the matter being considered and the decision being made to participate meaningfully in the process. The parties must also have a reasonable opportunity to present their points of view, respond to facts presented by others, and have their arguments considered by the Tribunal. These procedural fairness considerations apply to the reconsideration requests of both parties. In my view, engaging with s.7(3) on a reconsideration request when the parties did not engage with it at the hearing falls short of providing sufficient procedural fairness protections to the parties. First, I am not satisfied that there was sufficient notice to the applicant that s.7(3) would be argued. Even if there was sufficient notice to the applicant that the quantum was in dispute, the parties did not present their points of view for me to consider at the hearing despite having a reasonable opportunity to do so. Under the circumstances, the applicant did not have an opportunity to respond to the respondent’s position on s.7(3) of the Schedule because the respondent did not argue it at the hearing. This is clear at paragraph 41 of the decision where it states “Further, I am also not dealing with quantum because counsel did not argue quantum.”

24For the reasons above, the respondent has not established that the request falls into one of the categories in Rule 18.2. The request is dismissed.

The applicant’s request for a reconsideration is dismissed

25I find the applicant has not established grounds for reconsideration because she did not prove on a balance of probabilities that the Tribunal:

a. Acted outside its jurisdiction or committed a material breach of procedural fairness; or

b. Made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.

26The applicant identified she was arguing that I committed a material breach of procedural fairness, and also made an error of law, in the context of her arguments regarding Dr. Hasan. The applicant did not clearly identify in submissions the grounds for reconsideration she is arguing from Rule 18.2 in relation to the other arguments made that are outlined below, including the decisions regarding Marina Leahy, inadequate references to evidence and inadequate reasons, rating the applicant’s social functioning, not deciding the post-104 week income replacement benefit and denying entitlement to an award. I proceeded by treating all of her submissions as relying on the same grounds as with the first issue regarding Dr. Hasan throughout her submissions because those are the only grounds specifically referenced in her submissions, unless otherwise specifically noted in this decision.

Admitting reports where the authors are not listed as witnesses and no summons has been issued

27The applicant argues that the I committed a material breach of procedural fairness, and also made an error of law, to the extent that I interpreted s.15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) as providing authority to admit a report into evidence that has not been tested by cross-examination of the author. The applicant relies on three decisions by the Divisional Court in support of her position, Shahin v. Intact Insurance Company, 2024 ONSC 2059 (“Shahin”), Vivekanantham v. Certas Direct Insurance Company, 2024 ONSC 6198 (“Vivekanantham”) and Plante v. Economical Insurance Company, 2024 ONSC 7171 (“Plante”).

28While the applicant relied on Shahin during the videoconference hearing, she is relying on Vivekanantham for the first time because it was released after the hearing had already been completed. In the applicant’s reply submissions, she also relies on Plante, dated December 20, 2024 (together referred to as the “Divisional Court decisions”).

29If I accept the applicant’s position, in principle, in the context of videoconference hearings, reports would be excluded for lack of procedural fairness despite the authors of those reports not being listed as witnesses and without having a summons issued for them to attend if a party states at the last minute that they wish to cross-examine the author. Rather, in my view, the Divisional Court decisions support require an analysis and application of their principles to be driven by the facts before the Tribunal, on a case-by-case basis. In my view, the Divisional Court decisions do not dispense requiring the parties to take steps available to them under the Rules to secure their position to call certain witnesses to testify or to be cross-examined at a hearing.

30In my decision, at paragraph’s 12 and 13, I noted some key distinguishable facts in the Shahin decision. Shahin states, a witness, Dr. West, had provided nearly 100 transcript pages of untested oral evidence and was not ultimately cross-examined by the applicant. The Divisional Court decision states, “Once it became clear that Dr. West did not plan to re-attend for cross-examination and the Tribunal determined it would not order him to do so, it should have disregarded his evidence and struck his report from the record.”

31In Vivekanantham, a witness, Dr. Sivasubramanian, was served with a lawful summons, which he acknowledged receiving, but refused to attend the hearing to give evidence. He also failed to file an acknowledgment of expert’s duty form, as required by rule 10.2(b) of the Rules. The Tribunal stated it would consider the witness’ disregard for the LAT’s process and failure to appear when deciding the weight to give Dr. Sivasubramanian’s report. The Divisional Court states, “Once it was clear that Dr. Sivasubramanian was not going to appear at the hearing to be cross-examined, the LAT should have refused to admit his report. The LAT promised to take steps to mitigate the unfairness occasioned by admitting his report, but then did not do so.”

32In the Plante decision, a witness, occupational therapist Janelle MacKinnon, was listed and remained in the respondent’s list of witnesses leading up to the hearing. The Divisional Court states it was at the hearing that “the Respondent elected not to call MacKinnon as a witness.” The applicant had advised the respondent that MacKinnon was to be present for cross-examination and then during the hearing, requested that MacKinnon be produced for cross-examination to explore inconsistencies between eight versions of MacKinnon’s report. Paragraph 68 of the Plante decision compiles the important factors considered in those circumstances, (emphasis added):

The Appellant was entitled to rely on the Respondent’s list of witnesses as being witnesses who might be called at the hearing as part of the Respondent’s case. One of those witnesses was MacKinnon. The Respondent was entitled to file MacKinnon’s report in lieu of calling her as a witness. But what [the Tribunal] failed to appreciate is the undisputed fact that [the applicant] had put [the respondent] on notice that he wanted to cross-examine the Respondent’s experts.

Dr. Hasan is absent from witness lists

33In the present case, the “witness” in controversy is Dr. Hasan who is not listed as a witness to be called by either party in the Case Conference Report and Order (“CCRO”) released by this Tribunal on March 6, 2024. The CCRO provides the applicant with an opportunity to call a maximum of ten witnesses, eight witnesses are named in the CCRO, and two slots remained open, to be filled later. The applicant filled all ten slots by filing a witness list dated August 15, 2024 but did not include Dr. Hasan. The CCRO also provides the respondent with an opportunity to call a maximum of six witnesses, four witnesses are named, and two slots remained open, to be filled later. I note that the neither the applicant’s nor the respondent’s final witness lists included Dr. Hasan as a witness.

34The CCRO required the parties to exchange an updated list of proposed witnesses they intended to call at least 45 days before the hearing, pursuant to Rule 9.4.2(b) without a requirement to file it with the Tribunal. Since the hearing was scheduling to begin on October 7, 2024, this deadline landed on August 23, 2024. Prior to this deadline, the applicant’s witness list dated August 15, 2024 named ten individual witnesses, the maximum provided by the CCRO, and Dr. Hasan was not one of them. The applicant did not take steps such as seeking to amend the CCRO to add a witness slot for Dr. Hasan. On August 23, 2024, the respondent advised the applicant that Dr. Hasan is proposed as a witness through its proposed updated witness list. These proposed witness lists are not final and are not required to be filed with the Tribunal.

35The CCRO also required the parties to file with the Tribunal and serve on the other party a final list of witnesses each party will be calling to give evidence, at least 21 days before the hearing, pursuant to Rule 9.4.3(a). This deadline landed on September 16, 2024. The respondent complied, providing a final list of witnesses on September 9, 2024 confirming and identifying three final witnesses and Dr. Hasan was not one of them. The applicant did not address this in her reply submissions despite having ample opportunity to address the final witness list or to contest whether she received it. It is clear that the applicant had sufficient time to take steps from September 9, 2024 but did not take them at any earlier opportunity. While making submissions on procedural issues at the hearing, counsel for the applicant suggested that his office assigned him to this file and hearing approximately a week prior to the hearing date. While that may explain the timing of the steps taken by the applicant, if that was the intention of making this point at the hearing, it is does not excuse the applicant from the pivotal fact that notice was provided to the applicant well in advance of the hearing, on September 9, 2024 which is a week in advance of the applicable deadline.

36Under the circumstances, Dr. Hasan was not a witness identified in the CCRO by either party. Dr. Hasan was contemplated as an intended witness by the respondent in a proposed witness list between August 23 and September 9, 2024 exchanged between the parties and not required to be filed with the Tribunal. Ultimately, Dr. Hasan was not identified as a witness by the respondent on its final witness list as of September 9, 2024, in advance of the September 16, 2024 deadline, which was exchanged between the parties and additionally was required to be filed with the Tribunal.

37In my view, every author of a report is not automatically considered a witness available for cross-examination at a hearing. The law focuses on the reasonable expectation of the parties. I also note that s. 10.1(b) of the SPPA speaks to the right to “conduct cross-examinations of witnesses at the hearing”, and not every potential witness. In line with the factors considered in the Plante decision, Dr. Hasan was not listed in the final witness list of the respondent so the applicant could not have had a reasonable expectation that Dr. Hasan would be available for cross-examination at the hearing as of September 9, 2024. I have no reason to find the applicant was misled about the respondent’s intention to not call him as a witness. Since there was no reasonable expectation of Dr. Hasan’s attendance at the hearing, the respondent was entitled to file Dr. Hasan’s report in lieu of calling him as a witness and I accepted that filing under s. 15 of the SPPA. If the applicant wanted to cross-examine Dr. Hasan she could have taken steps to put the respondent and the Tribunal on notice by requesting to add him to her witness list and could have requested a summons at an earlier opportunity on or after September 9, 2024, in a timely manner as required by Rule 8.2, well in advance of the hearing.

38Accordingly, it’s appropriate to refer to Dr. West in the Shahin decision, Dr. Sivasubramanian in the Vivekanantham decision, and Janelle MacKinnon in the Plante decision as witnesses. Dr. West provided testimony, Dr. Sivasubramanian had a summons issued for his attendance, and Janelle MacKinnon was identified on a final witness list that was relied upon by the opposing party. However, in this case, Dr. Hasan remained an author of a report and did not enter the realm of being a witness for the purposes of the hearing. The applicant did not take the steps available to her to have Dr. Hasan attend at the hearing in order to cross-examine him and neither party was entitled to call him as a witness.

There is no summons issued for Dr. Hasan

39On August 23, 2024, the respondent filed a request for a summons for Dr. Hasan pursuant to Rule 8.2 and was ultimately unsuccessful. By Motion Order released September 4, 2024, the Tribunal refused the respondent’s summons request for Dr. Hasan because Dr. Hasan was not included in the respondent’s permitted potential witness list contained in the CCRO, was not included in the applicant’s witness list, and because there was no amendment sought of the CCRO to include Dr. Hasan.

40By September 9, 2024, by virtue of the respondent’s final witness list, the applicant was aware the respondent was not intending to call Dr. Hasan as a witness, as reviewed in the above paragraphs. Despite this notice on September 9, 2024 providing sufficient opportunity, the applicant did not take steps to seek to call Dr. Hasan at the hearing. As noted in the decision at paragraphs 11 and 15, the applicant did not comply with Rule 8.2 in requesting a summons for Dr. Hasan in advance of the hearing. As set out in Rule 8.1, the issuance of a summons is a discretionary power. I find that denying the request for summons because it was not filed in a timely manner and in the form required by Rule 8.1 is not inherently a breach of procedural fairness or an error of law. Further, the context in this case does not render the refusal unfair. I acknowledge that if the respondent had not provided the applicant with its final witness list on September 9, 2024, the applicant would have a stronger case to argue that there was a reasonable expectation of Dr. Hasan’s attendance at the hearing.

41Accordingly, neither party had a summons issued for Dr. Hasan which would require his attendance at the hearing. In contrast to Dr. Sivasubramanian in the Vivekanantham decision, Dr. Hasan did not ignore a summons or offend the Tribunal’s Rules or process. In contrast to the Plante decision, I did not refuse to enforce a summons relating to Dr. Hasan. Dr. Hasan remained an author of a report and did not enter the realm of being a witness at the scheduled hearing.

42For the reasons above, I find that I did not commit a material breach of procedural fairness or make an error of law when I:

a. refused the applicant’s request for a summons on the first day of the hearing, as outlined in paragraphs 11-13 and 15 of the decision; or when I

b. relied on s. 15(1)(b) of the SPPA as its authority to admit Dr. Hasan’s report that was relevant to the issues in dispute, and to rely on the evidence, while the applicant had an opportunity to challenge the evidence through submissions and argument.

43Further, in contrast to the Vivekanantham decision, I invited submissions regarding the weight that should be afforded to Dr. Hasan’s report and considered them in paragraphs 12-13 of the decision. I note that this reconsideration process does not provide an opportunity to re-litigate the weight assigned to evidence.

44For the reasons above, the applicant has not established that the request falls into one of the categories in Rule 18.2. The request is dismissed.

Refusal to issue a summons for Marina Leahy

45I find that I did not commit a material breach of procedural fairness or make an error of law when I refused the applicant’s request for a summons for Marina Leahy at paragraphs 11 and 14-15 of the decision.

46As noted in the decision, Marina Leahy, the adjuster, was “not providing testimony but … the applicant has the adjuster’s log notes in order to argue the issue of an award.” The applicant did not satisfy me that oral evidence from the adjuster would add evidentiary value since the adjuster’s log notes were in evidence and are essentially business records. In addition, the applicant’s request for a summons at the outset of the hearing did not comply with Rule 8.2. Also, there was already a previous decision by the Tribunal denying the applicant’s request. Therefore, this was a second request for the same summons, as noted in paragraph 14 of the decision. Also, the CCRO released March 6, 2024 limited the maximum number of witnesses each party could call at the hearing in October 2024. Neither party was entitled to call Marina Leahy and neither party sought to amend the CCRO to include Marina Leahy as a witness to be called by either party.

47For the reasons above, the applicant has not established that the request falls into one of the categories in Rule 18.2. The request is dismissed.

Failure to provide adequate reasons regarding catastrophic impairment

48I find that I did not commit a material breach of procedural fairness or make an error of law in providing reasons regarding the applicant’s catastrophic impairment determination.

49The applicant argues the only evidence referred to in the decision regarding the applicant’s catastrophic impairment determination as defined in the Schedule under s. 3.1(1)8 (“Criterion 8”) is the evidence of two psychiatrists, Dr. Milenkovic and Dr. Hasan. The applicant argues that I committed a material breach of procedural fairness and/or made an error of law:

a. when l did not provide my own rating or analysis for the domain of social functioning under Criterion 8 and instead accepted the rating of the parties’ assessors;

b. when I did not reference the evidence of other witnesses in the decision.

Social functioning

50The decision states my reasons at paragraph 29 for not providing my own rating for social functioning. In part, the decision states regarding the applicant’s social functioning, “neither party attempted to persuade me that there was reason to disagree with a consensus between their respective experts on this rating. Accordingly, I accept their Class 3 rating for this domain.” The applicant has not provided arguments as to why these reasons are inadequate. It is clear from the decision that the applicant did not argue their own expert’s rating in the domain of social functioning was wrong and that some other rating should apply to this domain. The rating also agreed with the respondent’s expert’s rating as referenced in the decision.

51I find the reasons are adequate because they are “sufficient to enable the parties, the general public and [an appellate court] sitting in review, to know whether the applicable legal principles and evidence were properly considered” as required by Lawson v. Lawson 2006 CanLii 26573 (CA).

52The respondent argues that it is well settled law that procedural fairness does not require an administrative decision-maker to consider and make findings on all positions raised by a party. The respondent relies on paragraph 23 in Albanese v. BelairDirect, 2024 CanLII 113000 (ON LAT) for this principle. However, the decision is clear that I was not presented with any position argued by the parties to consider that was contrary to the consensus of both parties’ psychiatrists.

Referencing evidence

53The respondent submits that it is well established that the Tribunal is not required in its decisions to refer to all the evidence put before it, citing Housen v. Nikolaisen, 2002 SCC 33 (“Housen decision”). The respondent relies on paragraph 14 in Samadi v. Allstate Insurance Company of Canada, 2023 CanLII 26946 (ON LAT) and paragraph 16 in G.I. v. The Guarantee Company of North America, 2021 CanLII 111185 (ON LAT) for its position that the Tribunal has been consistent regarding this principle.

54The respondent also cites Wawanesa Mutual Insurance Company v. Renwick, 2020 ONSC 2226 at paragraph 53:

The Appellant was entitled to rely on the Respondent’s list of witnesses as being witnesses who might be called at the hearing as part of the Respondent’s case. One of those witnesses was MacKinnon. The Respondent was entitled to file MacKinnon’s report in lieu of calling her as a witness. But what [the Tribunal] failed to appreciate is the undisputed fact that [the applicant] had put [the respondent] on notice that he wanted to cross-examine the Respondent’s experts.

55The applicant is incorrect about how limited my references are to other evidence or witnesses in the decision. Other than referring to the reports of Dr. Hasan and Dr. Milenkovic, I refer to Dr. Milenkovic’s testimony and cross-examination at paragraph 33. I also refer to the testimony of the other witnesses at the hearing, including the applicant’s testimony at paragraph 38, although each witness is not specifically named there.

56The Supreme Court of Canada stated in the Housen decision at paragraph 46 that the judge in that matter had the full record before it, and, it is presumed all of it was reviewed, absent proof that the court forgot, ignored, or misapprehended the evidence leading to an error in law. The Housen decision also states in the same paragraph:

Mere reliance by the trial judge on the evidence of some witnesses over others cannot on its own form the basis of a “reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion” (Van de Perre, supra, at para. 15). This is in keeping with the narrow scope of review by an appellate court applicable in this case.

57The decision does reference other evidence and witnesses. I used my discretion to allow the applicant’s daughter to testify despite the applicant’s noncompliance with the Rules regarding witnesses, found at paragraphs 16-18 of the decision. Paragraphs 17-18 of the decision are clear that the applicant relied on Ms. Li’s report as the summary of the applicant’s daughter’s testimony.

58Further, at paragraphs 43-45, I engage with the reports and testimony of both occupational therapists, Kimberly Li and Curtis Wong, in addition to the applicant’s testimony. Both the catastrophic impairment section and income replacement benefit section of the decision contain my review of much more than just the two psychiatrist’s reports as alleged by the applicant. I engaged with the evidence as it relates to the applicant’s physical limitations due to pain or due to her mental or behavioural concerns, sufficient to engage and consider this major point in issue. In the context of Criterion 8, the decision contrasts the evidence regarding physical limitations and mental or behavioural concerns. In the context of the income replacement benefit analysis, the decision combined the applicant’s physical limitations with her mental or behavioural concerns.

59For the reasons above, the applicant has not established that the request falls into one of the categories in Rule 18.2. The request is dismissed.

The issue of post-104 week income replacement benefit was not properly before me

60I find that I did not commit a material breach of procedural fairness or make an error of law in deciding that I was only dealing with the income replacement benefit in the first 104 weeks post-accident and not post-104 weeks.

61In the decision, at paragraph 41, I state that “applicant’s counsel advised during the hearing that I need to apply the pre-104 week test and not apply the post-104 week test because the stoppage of this benefit was within 104 weeks after the accident.” The applicant’s reconsideration submissions do not challenge this statement in the decision. Instead, the applicant’s reconsideration submissions state she does not concede that the pre-104 week test does not apply to periods beyond 104 weeks after the accident, in other words, she still maintains her position.

62the applicant argues that she should have met the post-104 week test, even though she argues it does not apply, given my findings in paragraphs 44-45. Whether the applicant should or should not have met the post-104 week test is not relevant to this reconsideration request because it was not properly before me to decide. The reconsideration process is not meant to expand the hearing to include the application of the post-104 week test after self-limiting the issue at the hearing.

63I accept that the IRB issue, as written in the CCRO, is broad enough to cover some period post-104 weeks after the accident because it includes the phrase “to date and ongoing”. However, it is not out of the ordinary that parties limit or withdraw issues or parts of issues during a hearing despite being listed as issues in a CCRO. In this case, at paragraph 2 of the decision, the applicant withdrew five issues at the hearing that were listed in the CCRO. Similarly, once the applicant limited herself to the application of the pre-104-week test only, the respondent was not expected to respond to anything beyond the application of the pre-104 week test. Nor was I expected to search for suggestions of a “complete inability” in the evidentiary record that may be relevant to the post-104 week test.

64The applicant argues she made submissions about the post-104 week test when her counsel argued: “…there should be no question in the Adjudicator’s mind after having heard the evidence he did, that the Applicant could not do any job, let alone her own job.” This does not assist the applicant’s argument because she stated she was not engaging with the post-104 week test at the hearing, it was reasonable to take the applicant’s submissions to be focused on “her own job” as that is what is relevant under the test she was engaging with at the hearing. In the face of clearly limiting the IRB issue at the hearing to the application of the pre-104 week test, this submission cannot be reasonably taken to mean the applicant was reversing her previous position. Especially since her position that the post-104 week test does not apply is still maintained, or “not conceded”, in her reconsideration submissions.

65The respondent submits that it did not engage with the post-104 week “complete inability” test because it was not in dispute. The respondent submits that it only denied IRB on the basis of sections 5(1)1.i and 6(1) of the Schedule. The respondent submits that all denials were in relation to the pre-104 week test, and all s.44 IRB assessments were also limited to assess entitlement within the first 104 weeks.

66The respondent submits and I agree that the tests and analysis required regarding the two periods of time are different. The pre-104 week test, as stated in paragraph 42 of the decision, requires a substantial inability to perform the applicant’s pre-accident employment or self-employment. Whereas the post-104 week test requires a higher standard, a complete inability rather than just a substantial inability, to engage in any employment or self-employment for which the applicant is reasonably suited by education, training or experience.

67In my view, procedural fairness protections afforded to the parties would be in favour of the underlying decision because it encompasses knowing the issues in dispute and the case the parties must meet, as well as allowing the opposing party to respond to it. As previously stated in this decision dealing with the respondent’s request to expand the issue of IRB to include s. 7(3) of the Schedule, it was not disputed and argued at the hearing. For this reason, it was not an error or a breach of procedural fairness that the decision does not engage with it. Just as the decision neither accounts for deductible post-accident income nor does it do away with s.7(3) of the Schedule, neither does it engage with the post-104 week “complete inability” test after applicant’s counsel limited the IRB issue to not include or argue it. Under the circumstances, the respondent did not have an opportunity to respond to the applicant’s position on s.6(2)(b) of the Schedule. This is because the applicant withdrew it and did not argue it at the hearing, and according to the respondent’s perspective, it was not in dispute. I also shared the respondent’s view that it was not in dispute. The decision is clear in stating at paragraphs 41 and 42 that, the parties only engaged with the eligibility criteria in s.5(1) of the Schedule as it relates to the IRB dispute.

68For the reasons above, the applicant has not established that the request falls into one of the categories in Rule 18.2. The request is dismissed.

Applicant’s request for reconsideration of an award

69The applicant argues as follows:

The decision in terms of special award is wrong in the sense that there was no opportunity for the Applicant to determine whether or not the adjudicator [sic] failed to continually adjust the file or acted in an immoderate, imprudent, inflexible or excessive manner when she decided to discontinue income replacement benefits. This of course stems from Adjudicator Mohammed’s decision to not summons the adjuster based on a technical non-compliance.

70I have already dealt with the applicant’s submissions regarding the summons of adjuster Marina Leahy, who is not listed as a witness that the parties were entitled to call. I noted, at paragraph 14 of my decision, the applicant’s submissions that there was no opportunity to determine if the adjuster acted unreasonably without being able to cross-examine her is an attempt to relitigate the issue. Paragraph 14 noted the respondent’s position that it had provided the adjuster’s log notes for this purpose.

71For the reasons above, the applicant has not established that the request falls into one of the categories in Rule 18.2. The request is dismissed.

The decision contains a misstatement

72The applicant argues there is an error in paragraph 29 of the decision where it states the Criterion 8 analysis turns on the domains of concentration, persistence and pace, social functioning, and adaptation. The applicant submits that mention of social functioning here is an error and the domain of activities of daily living needed to be mentioned instead.

73Upon review of the decision, I find that this was a misstatement, which is an error. The rest of the decision’s analysis correctly engages with the domain of activities of daily living instead of social functioning. The misstatement was not identified in the parties’ previous requests for amendments but is raised now by the applicant in the context of Rule 18. The misstatement is not such that the Tribunal would likely have reached a different result had it not been made because it was inconsequential to the Tribunal’s eventual analysis of the Criterion 8 domains of function.

74For the reasons above, the applicant has not established that the request falls into one of the categories in Rule 18.2. The request is dismissed.

Respondent’s request for costs

The respondent’s requests for costs of the reconsideration is denied.

75In the respondent’s response to the applicant’s request for a reconsideration of the decision, the respondent requests the payment of costs.

76Rule 19 states that where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs in writing or orally before a decision or order is released.

77The respondent’s submissions do not set out the reasons for its costs request, any particulars of the other party’s conduct, or the amount the respondent is seeking. For these reasons, the respondent’s request for costs is dismissed.

CONCLUSION & ORDER

78Accordingly, the parties’ requests for reconsideration are dismissed and the respondent’s request for costs is dismissed.

Amar Mohammed

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal