Licence Appeal Tribunal
RECONSIDERATION DECISION
Before: Melanie Malach, Adjudicator
Licence Appeal Tribunal File Number: 22-003874/AABS
Case Name: Victoria Hazell v. Aviva Insurance Canada
Written Submissions by:
For the Applicant: Arash Goneh-Farahani, Paralegal
For the Respondent: Kristofer B. Angle, Counsel
OVERVIEW
1On February 25, 2025, the applicant requested reconsideration of the Tribunal’s decision dated December 10, 2024 (“decision”).
2Stemming from an accident on November 27, 2017, the applicant sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Following a written hearing, I found that the applicant had not established that she is removed from the Minor Injury Guideline (“MIG”). I further found that she was not entitled to the treatment plans in dispute or payment of the clinical notes and records (“CNRs”) from Dr. Kato.
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 criteria cited by the applicant in support of her reconsideration request is Rule 18.2(a) and Rule 18.2(b).
5The applicant is requesting that an order be granted that she is removed from the MIG, due to her psychological impairments, and that she is entitled to payment of the CNRs of Dr. Kato. In the alternative, she requests an order for a rehearing in respect of all of the issues outlined in the decision be granted.
6The respondent opposes the applicant’s reconsideration request.
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 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 did not act commit a material breach of procedural fairness
9I find that the applicant has not established that I committed a material breach of procedural fairness, in accordance with Rule 18.2(a).
10The applicant submits that I committed a material breach of procedural fairness by not placing weight on the report of Dr. Lwan Ghebrehariat, psychiatrist, dated June 30, 2023, which materially affected the outcome of her application. She further submits that I violated the rules of natural justice and procedural fairness by failing to consider that the medical report from her family doctor was not required and that the treating notes of the psychologist were submitted for consideration.
11The respondent submits that the applicant has not proven that there was a material breach of procedural fairness. Instead, the respondent contends this reconsideration is a request to reweigh the evidence.
12The report of Dr. Ghebrehariat as well as the CNRs of the applicant’s family physician and treating psychologist, were considered, weighed and addressed in my decision. The applicant may challenge my findings about this evidence, but I find this challenge constitutes an attempt to ask for a re-weighing of the evidence through reconsideration. As such, I find that the applicant has not shown a material breach of procedural fairness such that a reconsideration is warranted under Rule 18.2(a).
Rule 18.2(b) – The Tribunal did not commit an error of law or fact
13I find that the applicant has not established grounds for reconsideration under Rule 18.2(b).
14The applicant submits that I made errors of law or fact which impacted my analysis. Specifically, the applicant submits that I erred by:
a. Failing to consider Dr. Ghebrehariat’s report and treatment records;
b. Failing to remove the applicant from the MIG;
c. Incorrectly relying on the clinical notes and records of the applicant’s family doctor; and
d. Failing to order payment of Dr. Kako’s CNRs.
15In support of this position, the applicant relies upon the Tribunal decision in J.S. v. Aviva General Insurance, 2018 CanLII 76414 (ON LAT) (“J.S.”), as she submits that the facts in this decision mirror the facts in the present application. The applicant submits that the family doctor’s CNR’s lack of reference to psychological issues should not impair the adjudicator’s ruling, and they are not required to make a determination in removing the applicant from the MIG.
16The respondent submits that the applicant’s reconsideration submissions are almost entirely premised on allegations that I did not consider or give appropriate weight to the evidence led by the applicant in support of her position that she should be removed from the MIG. The respondent further submits that the applicant is attempting to reargue her case, which is not an appropriate ground for reconsideration.
17I find that the applicant’s request for reconsideration is an attempt to re-argue her case, and that the applicant is asking the Tribunal to re-weigh the evidence submitted at the initial hearing. A reconsideration is not an opportunity for an applicant to re-argue one’s case. Although the applicant disagrees with my reasoning and findings, this is not a ground upon which I can grant a request for reconsideration under Rule 18.2. I find that I provided sufficient reasons and explanations for weighing the evidence the way that I did in the decision. Unless the requesting party is able to show an error in this assessment, it is not the role of the reconsideration process to re-weigh evidence that has already been considered by the Tribunal.
18Further, I do not agree with the applicant’s submission that I failed to consider the report of Dr. Ghebrehariat. At paragraph 46 of my decision, I considered the report, and I provided a detailed explanation for not placing weight on it. The applicant has not explained how any of the criteria for reconsideration were met based on my choice to weigh the evidence before me. I rely upon the Divisional Court decision in Dooman v. TD Insurance Co., 2025 ONSC 184, where the Court found at paragraph 36 that “The Tribunal was free to accept all, none, or some of the hearing evidence, including any expert evidence. While a trier of fact is obliged to consider all of the evidence before it, it is not required to accept all of a medical expert’s evidence merely because there is no contrary expert testimony tendered on behalf of the other party.” I find that I am under no obligation to accept at face value the findings or opinions of medical professionals put before me, whether they are contradicted by evidence presented by the respondent or not. The applicant has the evidentiary onus at first instance.
19With respect to the applicant’s submission that I did not consider the CNRs of Dr. Ghrebrehariat, the only mention in the applicant’s written hearing submissions of these records is at paragraph 13. “The Applicant met with Dr. Ghebrehariat regularly by zoom and telephone to complete her sessions.” The applicant made no reference to the findings in these records. I find that the applicant had the opportunity to raise these submissions in the initial hearing, but she did not do so. For this reason, I will not consider them at this stage.
20With respect to the applicant’s submissions that I incorrectly relied on the CNRs of Dr. Kato, I note my findings at paragraph 44 of my decision:
I find that the applicant has not provided me with any CNRs from Dr. Kato, her family doctor, documenting her psychological complaints. The only document provided is a Psychotherapy Referral Form signed by Dr. Kato, dated May 1, 2023, which notes “possible PTSD secondary to MVA Nov 2017”. The CNRs of Dr. Kato that were submitted by the applicant dated August 1, 2021 to December 17, 2022, however, do not note any psychological complaints.
21As this quotation demonstrates, I note in my decision that a Psychotherapy Referral Form, dated May 1, 2023, was signed by Dr. Kato. I further state that there were no psychological complaints made in the CNRs of Dr. Kato.
22The applicant in her reconsideration submissions noted that there were psychological complaints made to Dr. Kato as follows:
i. January 22, 2022 – “not feeling happy, depressed”
ii. October 1, 2021 – “diagnosis for driving anxiety”
23I find that these references were not made by the applicant in her initial submissions, and they have only been raised in her reconsideration submissions. I find that, had the applicant wanted to rely on these complaints in her submissions, she had an obligation to do so in her initial submissions. Parties are expected to present their best case at first instance.
24I find that the applicant did not provide any submissions to explain how considering these two CNRs would have likely impacted the final result of my decision. The applicant has the onus to show both a) an error and b) how the error likely affected the result of the decision.
25I then find that the applicant has incorrectly cited the principles from J.S. This decision stands for the principle that the Tribunal has the discretion to determine the weight given to the evidence, and it found no procedural unfairness in preferring the conclusions over those of another assessor. J.S. is distinguishable from this matter where the Tribunal held that the fact the decision does not specifically note that the CNRs lack reference to the applicant’s psychological issues does not amount to a serious breach of the rules of natural justice and procedural fairness. The decision does not stand for the principle that the Tribunal cannot refer to the lack of mention of psychological issues in CNRs. This is left to the discretion of the adjudicator in weighing the evidence and stating the reasons for his or her decision.
26I also do not agree with the applicant’s submission that I erred when relying on the decision of N.S. v. Intact Insurance Company, 2022 CanLII 69914 (ON LAT). As I stated in my decision at paragraph 42, where a decision rests on conflicting medical opinions and inconsistencies, other sources of information like the CNRs of the applicant’s family doctor and treatment clinic, become more important.
27In addition, the applicant submits that the report of Dr. Silvia Tennenbaum was submitted to the Tribunal. Upon my review of the applicant’s submissions, while this report is mentioned in the submissions, it was not appended to the submissions from the written hearing. Therefore, the report was not considered by me when reaching my decision.
28Finally, the applicant submits that I erred in finding that the applicant is not entitled to payment of the CNRs of Dr. Kato submitted on September 2, 2020. At paragraph 56 of my decision, I found as follows:
I find that there is no evidence provided to support that the records were received by the respondent. The applicant has not provided a copy of these CNRs or a copy of the invoice for these CNRs in her submissions. I further find that the letters dated March 24, 2022 and October 28, 2022, do not clearly indicate what CNRs are being referred to nor is there an agreement by the respondent to pay for any records.
29In her reconsideration submissions the applicant has submitted an email as evidence that she provided the CNRs from Dr. Kato to the respondent on April 24, 2023. The applicant has also provided an email from the respondent, dated December 29, 2022, where it stated that it would not pay for any CNRs.
30I do not find that I erred in finding that the applicant is not entitled to payment of these CNRs. These records were apparently provided on September 2, 2020. The applicant is now submitting a document that says these records were provided on April 24, 2023, in anticipation of the then upcoming case conference. This is inconsistent with the applicant’s initial submissions and the evidence still supports that there was no agreement by the respondent to pay for any records. Therefore, I do not find that the applicant has demonstrated that I erred in fact or law in my denial of the payment of Dr. Kato’s CNRs.
31For these reasons, I do not find that the applicant has demonstrated that I erred in fact or law in my decision such that I would likely have reached a different result had the error not been made. As a result, the applicant’s request for reconsideration under Rule 18.2(b) is dismissed.
CONCLUSION & ORDER
32For the reasons set out above, the applicant’s request for reconsideration is dismissed.
Melanie Malach Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: June 20, 2025