Kozhani v. Jevco Insurance, 2025 CanLII 62728
RECONSIDERATION DECISION
Before: Tami Cogan
Licence Appeal Tribunal File Number: 24-002196/AABS
Case Name: Lindita Kozhani v. Jevco Insurance
Written Submissions by:
For the Applicant: Maciek Piekosz, Counsel
For the Respondent: Raman Pandher, Counsel
OVERVIEW
1On March 27, 2025, the applicant requested reconsideration of the Tribunal’s decision dated March 6, 2025, (“decision”). Following a videoconference hearing, I issued the decision in which I determined that the applicant did not sustain a catastrophic impairment (Criterion 8) as defined by the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Briefly, while I found the applicant had established a marked impairment in the domain of concentration, persistence, and pace, I concluded that she did not establish either a marked or extreme impairment in the remaining three domains.
2The 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.
3The applicant is seeking a reconsideration pursuant to Rule 18.2(a) and (b). The respondent fundamentally disagrees with the applicant’s allegations.
4The applicant is seeking to have the decision varied to a finding that the applicant sustained a marked impairment in activities of daily living (“ADLs”), social function and adaptation, which would result in a determination of the applicant having sustained a catastrophic impairment.
RESULT
5The applicant’s request for reconsideration is dismissed.
ANALYSIS
6I find the applicant has not established grounds for reconsideration under Rule 18.2(a) or (b) for the following reasons.
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 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.
Material Breach of Procedural Fairness
8I find applicant has not established grounds for reconsideration based on a material breach of procedural fairness for the reasons that follow.
9The applicant submits that I committed a breach of procedural fairness when her counsel was unilaterally and arbitrarily disallowed from reading verbatim from her “Aide Memoire”. Also, that I committed a breach of procedural fairness when I ended the hearing instead of allowing additional available time for the parties to make their submissions. Further, she contends that I committed a breach of procedural fairness when, after the conclusion of the hearing, I decided that the Aide Memoire would not be considered.
10The respondent submits that no breach of procedural fairness occurred because the applicant was not disallowed from reading the document verbatim, but rather, her counsel was cautioned that that the pace of his presentation may have prevented him from completing his submissions in the allotted 60 minutes. Also, the respondent submits that no breach of procedural fairness occurred because the parties were granted 30 minutes of additional time, beyond the 30 minutes stated in the case conference report and order (“CCRO”), to make their submissions. Further, the respondent submits that all parties were clearly advised in advance of the closing submissions that any written material not addressed during oral submissions would not be considered.
11I did not disallow the verbatim reading of the Aide Memoire relied upon by the applicant’s representative, but rather, I cautioned him regarding the pace of his presentation to ensure that the full submissions were heard. I note that the CCRO limited the parties to 30 minutes for closing submissions, however, the day before closing submissions, I informed the parties that they would be granted 60 minutes each to present their closing submissions. The parties were granted additional time to make their final submissions and had ample time to do so. I find the applicant has not established a breach of procedural fairness in these regards.
12The applicant acknowledges that the day before closing submissions, I heard from both parties, who agreed, and were subsequently permitted to rely on, written submissions on the condition that only what was read into the record would be considered.
13During the applicant’s submissions, the order of oral presentation was out of order with the printed document, jumping back-and-forth between pages making it difficult to follow, portions of the document were being skipped entirely, and other portions were paraphrased. I cautioned the party when the oral submissions were deviating from the written submission. Further, I cautioned the parties of the potential for accusations of a breach of procedural fairness if the oral presentation did not mirror the document, as agreed to by the parties.
14The manner of the oral presentation did not allow me to determine the specific passages in the Aide Memoire that should be struck as agreed to by the parties and therefore, I did not rely on any portion of it. I relied on the applicant’s oral submissions. The parties both had ample time to present their submissions orally during the hearing, and I find that not allowing the admission of the Aide Memoire does not constitute a breach of procedural fairness I find the applicant has not established that a breach of procedural fairness occurred because the Aide Memoire was not considered in addition to the 60-minute oral submissions.
15I find the applicant has not established grounds for reconsideration based on a material breach of procedural fairness. I also find, the applicant has not established that these actions were grounds for reconsideration as an error of law or fact.
Errors in Law
16For the reasons that follow, I find applicant has not established grounds for reconsideration based on an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
17The applicant submits I erred in law or fact because of the following:
a. I indicated that during the collateral interview the applicant’s son did not comment on his mother’s showering habits;
b. I relied on surveillance evidence to establish the applicant is independent with her grooming and self-care, when the surveillance evidence did not show the applicant performing these acts and the applicant testified that her daughters prepared her for the events. In support, the applicant relies on the Aide Memoire, which is not evidence;
c. I did not consider extensive evidence led to establish the applicant has an impairment in her communication abilities. Further, the applicant submits that I erred in not considering that the applicant did not speak to anyone in the store during her situational assessment, or the applicant’s testimony that she does not initiate conversations when out of the house;
d. I did not consider extensive evidence led that the applicant required cueing;
e. I did not consider the applicant’s independence, appropriateness, effectiveness, or sustainability of the applicant’s ADLs. The applicant submits that I erred in not considering the testimony of Ms. Wendt, occupational therapist, regarding the applicant’s effectiveness in the task of cooking and cleaning the floor, as well as her not actively participating in group activities, and that she does not initiate social interactions. Also, that the applicant is not independent in changing her clothes for community outings;
f. My interpretation of independence is incorrect and I did not consider the applicant’s need to have someone present with her at all times due to anxiety and fear;
g. I did not appreciate the applicant’s avoidance of interpersonal relationships and her ability to interact and actively participate in group activities;
h. I did not consider the applicant’s CPP-D benefits as evidence in support of a marked impairment in the sphere of adaptation. The applicant relies on the report of Dr. Bansal dated January 11, 2022; and
i. I did not give a proper or complete analysis, and that I did not give reasons when I did not accept expert evidence. Specifically, the applicant submits that I did not explain why I preferred Dr. Sivasubramanian’s opinion over Dr. Brown’s opinion.
18The applicant is correct that I indicated the applicant’s son did not comment on his mother’s showering habits, when, in fact, he did comment that his mother showers every 3 – 4 days, which is consistent with the applicant’s reporting to Dr. Brown. However, had I not made this error, I would not have likely reached a different result, because, at paragraph 18 of the decision, I considered the collateral interview regarding the son’s reporting that the applicant changes her clothes daily, wears make-up and dresses better when her sister visits. Also, at paragraph 19, I considered the applicant’s personal care habits, which included her frequency of showering, changing her clothes, and doing her hair and make-up, as reported to both occupational therapists.
19At paragraphs 18 and 19, I considered the surveillance evidence which I found corroborates the applicant’s reporting to Dr. Brown that she styles her hair and does her make-up which included for special events. This was also corroborated by the applicant’s testimony. Further, I indicate that the photographs demonstrate she is wearing appropriate attire and suitably groomed. Some of the photos are from when the applicant has travelled internationally, which the applicant testified, she was alone with her husband: see paragraph 28. A reconsideration is not a venue for re-weighing the evidence considered at first instance.
20The applicant is correct that at paragraph 20 I indicated the applicant did not lead evidence that she has an impairment in her communication abilities. However, had I not made that error, I would not have reached a different result, because paragraphs 26, 27, 34 and 36, I address the applicant’s ability to communicate.
21At paragraph 23, I reference the report of Ms. Krista Cole, occupational therapist noted in her occupational therapy in-home assessment report, dated June 11, 2023, which indicated the applicant did not require cueing or prompting. At paragraph 24, I reference the evidence of Ms. Kelly Wendt, occupational therapist in her occupational therapy in-home situational assessment report dated January 10, 2024, who found the applicant to be largely independent. Further, at paragraph 61, I reference the Modified Multiple Errand Test administered by Ms. Wendt, in which the applicant self-initiated the tasks without queuing or prompting. A reconsideration is not a venue for re-weighing the evidence considered at first instance.
22At paragraph 18 and 19, I reference the applicant’s clothing. At paragraph 24, I reference the applicant’s effectiveness in her ADL tasks. Also, at paragraphs 26 and 34 – 38, I reference the applicant’s social engagement.
23At paragraph 20, I reference the applicant’s preference be accompanied at all times, and Dr. Brown’s report was absent of an opinion that she cannot be alone or requires supervision.
24At paragraphs 26 – 28, I reference the applicant’s relationships and activities.
25The respondent submits that the legal tests for IRB and CPP-D are not the same as catastrophic impairment under the Schedule, and a finding of entitlement to these benefits does not equate to a determination of catastrophic impairment.
26I agree with the applicant that I did not consider the applicant’s CPP-D benefits. I disagree with the applicant that it is an error of law. The applicant put this report before Dr. Sivasubramanian during cross-examination, and it was entered as exhibit 21. However, the legal test for these benefits does not equate to a catastrophic determination. Further, the applicant did not make submissions regarding the applicant’s CPP-D benefits, nor was I directed to this document in the applicant’s submissions. I find the applicant is attempting to re-litigate this part of her case at first instance.
27The respondent submits that the reasons I did not accept expert evidence are clear and the analysis is thoroughly detailed in my decision and refers to paragraphs 18, 23, 26, 37, 43 – 47, and 53 – 65.
28At paragraphs 18, 23, 26, 28, 33, 37, 43 – 47, and 53 – 65, I provide my reasons for the evidence I find most persuasive and provide an analysis of the applicant’s functional abilities based on the catastrophic impairment assessors’ evidence, I find the applicant has not established that my decision lacks reasons or analysis of the evidence.
29I find the applicant has not established grounds for a reconsideration based on an error of law or fact such that I would likely have reached a different result had the error not been made.
CONCLUSION & ORDER
30For the reasons noted above, the applicant’s request for reconsideration is dismissed.
Tami Cogan
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: July 2, 2025