RECONSIDERATION DECISION
Before:
Emily Morton, Adjudicator
Licence Appeal Tribunal File Number:
22-010293/AABS
Case Name:
Christopher Gunraj-Sturgess v. TD General Insurance Company
Written Submissions by:
For the Applicant:
Brennan Kahler, Counsel
Sherilyn Pickering, Counsel
For the Respondent:
Patricia Hill, Counsel
OVERVIEW
1On April 24, 2025, the applicant requested a reconsideration of the Tribunal’s decision dated April 3, 2025 (decision).
2In the decision, I concluded that the applicant had not met his burden of demonstrating entitlement to the single treatment plan in dispute. To come to this conclusion, I considered whether the applicant met the burden of demonstrating that the treatment plan was reasonable and necessary to treat his accident-related injuries, pursuant to ss. 15 and 16 of the Statutory Accident Benefits Schedule – Effective September 2010 (including amendments effective June 1, 2026) (Schedule). I also considered whether the applicant met the burden of proving the motor vehicle accident was the cause of his impairments, or whether the accident led to a worsening of his pre-accident impairments.
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.
4In the Request for Reconsideration Form, the applicant indicated the reconsideration would be based on Rule 18.2(b) and (c). However, written submissions, the applicant sought reconsideration of the decision pursuant to Rule 18.2(a) and (b), on the basis that the Tribunal breached procedural fairness and also committed an error of law or fact that likely impacted the result of the decision. The applicant seeks an order varying the decision “for a finding” the accident was the necessary cause of the applicant’s impairments, or the worsening of his pre-existing impairments, and that he is entitled to the treatment plan in dispute.
5The respondent submits the applicant’s reconsideration request amounts to an attempt to re-argue the issue of what weight is to be given to evidence relating to causation. The respondent argues the decision applied the correct law, and it provided thorough analysis and reasons for why the applicant did not meet the burden of proof. The respondent asks this request for reconsideration be dismissed.
RESULT
6The applicant’s request for reconsideration is dismissed.
ANALYSIS
7The 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 decision, or with the weight the Tribunal assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2. Again, the applicant bases the reconsideration request under Rule 18.2(a) and (b).
8While the applicant identifies two grounds for reconsideration, the submissions essentially relate to the same question: whether the decision contained misapprehensions of evidence and placed uneven scrutiny on the applicant’s evidence. While the applicant’s submissions attempt to relate these factual arguments to alleged legal errors or a material breach of procedural fairness, I find they amount to an attempt to have this Tribunal re-visit and re-weigh the evidence in relation to the issue of causation.
Rule 18.2(a) – Alleged Procedural Unfairness: Analysis of the Treatment Plan
9At the written hearing, both parties submitted the main issue was causation. There was a single treatment plan in dispute to provide modifications to the applicant’s home, with the treatment goals stated as “safety in the home” and “access to the community.”
10In the decision, in addition to analyzing and making factual conclusions on causation, I considered whether the applicant had met his burden of demonstrating that the treatment plan was reasonable and necessary. I held that “while the parties both submit the main issue on this application is causation, the core issue for me to decide is whether the treatment plan at issue is reasonable and necessary.” Even though I held reasonableness and necessity was the “core issue” and gave reasons as to why the applicant had not met the burden on this point, the decision also thoroughly grapples with the issue of causation.
11The applicant submits the logic of my decision is flawed, as the appropriate analysis is to decide first whether the impairment was caused by the accident, and then to consider whether the proposed plan was reasonable and necessary. The applicant further submits that procedural fairness was breached, because the decision does not demonstrate that I was “alert and sensitive” to what, he submits, is the central issue of causation. This, in turn, resulted in “misapprehensions of evidence based on the wrong legal principles.” The applicant also highlights the use of the word “treat” in the decision as another specific ground for challenging the procedural fairness of the decision.
12In this regard, I do not find the applicant has established a breach of procedural fairness or an error in fact or law. The ultimate issue on the application is whether the applicant was entitled to receive payment for the disputed treatment plan. Despite the parties’ focus on causation, the question of whether the items proposed in the treatment plan are reasonable and necessary was still the primary question to be decided. I therefore addressed this issue based on the evidentiary record filed by the parties, and I decided, for the most part, that the items proposed were not reasonable and necessary to achieve the treatment goals, even if causation had been made out. Significantly, the decision then goes on to analyze and make findings on the issue of causation, based on the arguments of the parties and the evidence relied on by each. Indeed, the majority of the decision’s analysis and weighing of the evidence and factual findings relates to the issue of causation.
13The applicant does not argue that I applied the incorrect legal test to determine causation. Rather, the applicant submits I failed to grapple with the issue of causation because I also analyzed the reasonableness and necessity of the treatment plans. The reasons, which contain detailed analysis of the evidence filed and make factual findings about causation, grapple with causation and provide conclusions on this issue. The applicant has not shown how this amounts to a breach of procedural fairness or an error in fact or law.
Rule 18.2(a) – Alleged Procedural Unfairness: Characterization of the Applicant’s Impairments
14The applicant submits the decision breached procedural fairness and contains legal and factual errors by mischaracterizing his impairments. The applicant submits that it was a factual error to describe his impairments as “physical and psychological” in nature. The applicant argues that the application focused on his seizure disorder and behavioural issues, which are properly described as neurological disorders, and did not use the terminology of physical and psychological disorders used in the decision.
15In his submissions for the written hearing, the applicant did not characterize the injuries in this manner. The submissions focus on his seizure disorder, as well as his behavioural symptoms and impairments. The decision also focuses on these two aspects of the applicant’s impairments, under the headings of physical and psychological impairments, respectively. I find the applicant has not shown how his argument about the terminology used in the decision has any bearing on the substantive analysis in the decision.
16I also do not agree that the manner in which the decision set out the applicant’s impairments and analyzed them breaches procedural fairness. The applicant did not argue that his impairments could only be analyzed as neurological disorders; rather, the submissions on the application set out a number of issues related to the applicant’s seizure disorder and symptoms related to his behaviour. The decision analyzes the evidence and submissions. related to precisely these two aspects of the applicant’s impairments.
Rule 18.2(b) – Alleged Error of Fact or Law: Uneven Scrutiny of Evidence
17The applicant submits that I made significant errors of fact and law by “assessing the evidence in an undue and contradictory manner such that the Applicant’s evidentiary burdens regarding causation were inadvertently and unreasonably higher than required in law” which, in turn, resulted in a misapprehension of the evidence. The applicant ties this alleged uneven scrutiny to the fact that a great deal of evidence before me resulted from catastrophic impairment (CAT) assessments, and that I imported a “severity qualification” into my fact-finding exercise on causation, rather than focusing on the established “but for” test for causation. The applicant also argues on reconsideration that there is an error in my reasoning as it uses language that the impairments the treatment plan are geared to accommodate do not bear a “link” to the impairments allegedly caused by the motor vehicle accident, i.e. the worsened seizure disorder.
18I note first that there is no argument that I incorrectly cited or instructed myself on the legal test for causation. The decision cited Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181 and Sabadash v. State Farm et al., 2019 ONSC 1121 (Div. Ct.), and I described the legal test as a “but for” test. I further noted that it does not require the accident to have been the major or only cause, but rather a “necessary cause” of the impairments.
19Rather, the thrust of the applicant’s argument is that I did not apply this test, as I cite language from reports in evidence that opine the accident did not, for example, “significantly” contribute to reported worsening of pre-existing injuries or that any increase in symptoms is “likely mild” and did not have a “significant effect.” The applicant also emphasizes language I used at paragraph 34 of the decision that there was not reliable evidence of a “marked increase” in the applicant’s seizures as a result of the accident.
20The applicant does not place these criticisms in the context of my overall finding that he did not meet the burden of demonstrating a worsening of his pre-accident impairments. This finding was rooted in the fact that evidence of the alleged worsening of his seizure disorder and behavioural symptoms came from his grandparents. I found their evidence was inconsistent with other reports about the applicant’s pre-accident history of impairments, and I gave their evidence reduced weight. In turn, I found this “greatly reduces the amount of weight” I placed on expert opinions that were premised on the reliability of the applicant’s grandparents’ accounts of the trajectory of his impairments post-accident.
21Similarly, I find the applicant’s argument I erred by using the term “link” in the decision, to find there was no relationship between the goods and goals of the proposed treatment plan and the applicant’s impairments are made without consideration of the broader findings of fact I made in the decision. In the decision, I found the goods proposed in the treatment plan were not reasonable and necessary to treat the applicant’s seizure disorder because: a) I found the motor vehicle accident was not the cause of the applicant’s seizures; and b) the symptoms the applicant was described to exhibit during seizures were not reasonably treated by the goods proposed in the treatment plan. That is, I found the applicant had not met the burden of proving installation of grab bars and handrails in the home was reasonable and necessary to treat his seizure disorder as the evidence did not establish the applicant exhibited symptoms such as falling when he experienced seizures. Moreover, I found the applicant had not proved the motor vehicle accident was a cause of the seizures or an increase in seizures. In the context of these factual findings, which were based on an analysis of a large body of evidence, I found the conclusion the applicant had not established entitlement to the treatment plans was reasonable.
22Overall, I find the applicant’s argument amounts an attempt to re-argue the issue of what weight should be given to the different expert assessments and opinions in evidence. The reconsideration submissions emphasize reports that favour the applicant’s position that the accident caused the impairments. However, the decision’s conclusion on causation relies significantly on the reduced weight I gave to evidence from the applicant’s grandparents that his injuries worsened post-accident. Again, I found this evidence inconsistent and found it was contradicted by other contemporaneous records from others who assessed and interacted with the applicant post-accident.
23Unless they are able to demonstrate a legal or factual error in this analysis, it is not open to a party on reconsideration to re-argue the weight to be given to various pieces of evidence addressed in the underlying decision. In this case, the decision provided clear reasons for why various pieces of evidence were given reduced weight.
24For the reasons given above, I find that the applicant has not demonstrated that I erred in fact or law such that a reconsideration is warranted under Rule 18.2(b), nor has the applicant demonstrated a material breach of procedural fairness or jurisdictional error warranting reconsideration under Rule 18.2(a).
CONCLUSION & ORDER
25The applicant’s request for reconsideration is dismissed.
Emily Morton
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: June 19, 2025