RECONSIDERATION DECISION
Before: John Mazzilli
Licence Appeal Tribunal File Number: 23-000467/AABS
Case Name: Mitra Ahmadpour v. Intact Insurance Company
Written Submissions by:
For the Applicant: Adesina C John, Paralegal
For the Respondent: Shivani Mehta, Counsel
OVERVIEW
1On February 25, 2025, the applicant requested reconsideration of the Tribunal’s decision dated February 7, 2025 (“decision”).
2In the decision, I determined that the applicant is not entitled to either a pre- or a post-104-week income replacement benefit (“IRB”). I further found that the respondent’s notice of determination letter complied with s. 37 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).
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 makes her request for reconsideration based upon Rule 18.2(a) and Rule 18.2(b). She requests that:
(i) I order that the applicant is entitled to a pre- and a post-104-week IRB, with interest; and
(ii) I grant any other order that the Tribunal sees appropriate in this matter.
5The respondent opposed reconsideration, submitting that the request should be dismissed as it fails to meet the high threshold required under Rule 18.2. It further argues that the applicant is attempting to re-litigate her case, which, ultimately, failed at first instance. Finally, the respondent claims neither errors of fact or law nor procedural unfairness occurred.
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 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.
8As noted above, the applicant indicated on her Reconsideration Request form that she is basing this request on Rule 18.2(a) and Rule 18.2(b). However, her submissions addressed both criteria together when detailing her reconsideration grounds based on the sufficiency of notices, the onus of proof, and the document review conducted by one of the parties’ experts. Therefore, my analysis under each heading will address both Rule 18.2 criteria, specifically, whether I erred in fact or law, and whether I committed a material breach of procedural fairness.
Sufficiency of Notices
9I find that the applicant has not established grounds for reconsideration, pursuant to Rule 18.2(a) or Rule 18.2(b), based on her submissions about the sufficiency of notices.
10The applicant submits that I committed an error of law such that the Tribunal would likely have reached a different result had the error not been made, and a material breach of procedural fairness in finding that the respondent’s notice of determination, dated January 28, 2021, complied with s. 37(4) and s. 37(6) of the Schedule. The applicant relies on *Varriano v. Allstate*, 2021 ONSC 8242 (“Varriano”), and she submits that this notice does not specify the applicant’s medical condition, the respondent’s position on her medical condition, or the specific subsection of s. 37 that it relied upon to deny her IRB claim.
11The applicant further submits that I acted procedurally unfair because I failed to consider relevant case law brought at first instance, specifically *Taksali v. Aviva Insurance*, 2024 CanLII 128 (ON LAT) (“Taksali”). The applicant points to paragraphs 23 and 24 in Taksali:
The Schedule outlines that until proper notice is provided, the respondent shall pay the benefit to which it applies s.36(6) with respect to income replacement benefits; s.38(11) 2 with respect to medical and rehabilitation benefits. There is no requirement in the Schedule for the applicant to otherwise establish their entitlement to these benefits until a proper notice is subsequently given.
Based on the above, I find that the Tribunal did not err in finding that the applicant was entitled to the substantive benefits on the sole basis of the insufficient notice.
12The respondent submits that the applicant is attempting to re-litigate evidence already considered at the written hearing. It further claims that I did not err in law in determining that its notices were compliant. The respondent further argues that the applicant’s reliance on the Divisional Court’s decision in Varriano is misplaced, as the Court of Appeal for Ontario overturned the decision. It further argues that the Tribunal decision in *Mendoza v. Unifund Assurance Company*, 2024 CanLII 59551 (ON LAT) reinforces that attaching the s. 44 medical reports is appropriate and compliant with the statutory requirements.
13I find that the applicant has not established grounds for reconsideration because the applicant has not shown how my finding that the respondent’s notice of determination letter was served in accordance with s. 37 of the Schedule constitutes either an error of law resulting in a different outcome or a material breach of procedural fairness. The reasons for this finding are outlined in paragraphs 48-52 of my decision, and specifically, at paragraph 52, where I determined:
I find that the respondent acted in accordance with s.37(4) and s.37(6). On January 28, 2021, exactly 10 days from receipt of the medical reports and in accordance with s.37(6), the respondent sent a letter to the applicant advising her that, based on the s.44 reports from Dr. Moddel, neurologist, Dr. Syed, psychologist and Dr. Nesterenko, general practitioner, she would no longer be eligible to receive the IRB. The applicant argued that the letter did not include Dr. Holland’s FAE report on the subject letter, however, as already established, the FAE report does not give an opinion on entitlement to the IRB. Furthermore, the respondent attached the medical reports to the letter for the applicant to review, this to me is more than sufficient medical reasons and, therefore, I find that the respondent acted in accordance with s.37(4) and (6).
14Although I did not discuss in my decision the applicant’s submissions regarding the cited Tribunal decision of Taksali it should be noted that the applicant has not shown me specifically how I committed an error of law. I found this case inapplicable because the respondent’s notice was proper in this case and the decision cited found that the Insurer did not serve proper notice to the applicant in their denial of benefits. Further, it is well established that a previous Tribunal decision is not binding on me, so no error of law or material breach of procedural fairness is established.
15The applicant also raised, for the first time on reconsideration that the respondent failed to cite the exact subsection from s. 37 it relied upon in its notice of determination letter. While this was not argued at first instance, I find there is no statutory requirement to provide a subsection, and I note that the respondent did reference s. 37 in the notice of determination letter.
16It is well settled that reconsideration does not permit new arguments that were not raised during the hearing or mere re-argument of one’s case. Accordingly, the applicant’s request for reconsideration on this ground is dismissed, because the applicant has not shown I made an error of fact or law that would have change the outcome of the decision had it not been made, or a material breach of procedural fairness, failing to meet the threshold under Rule 18.2a or b.
Onus of Proof
17I find the applicant has not established grounds for reconsideration, pursuant to Rule 18.2(a) or Rule 18.2(b), based on her submissions about the onus of proof.
18The applicant submits that I erred in law by misinterpreting and misapplying s. 5(1) and 6(2)(b) of the Schedule, as provisions setting out how or what is required to satisfy the two disability tests necessary for entitlement to an IRB at two distinct periods of time. The applicant then contends that I committed a breach of procedural fairness by failing to address her submissions regarding who bears the onus of proof. She relies on *Scarlett v. Belair Insurance*, 2015 ONSC 3635 (“Scarlett”).
19The applicant argues that my failure to include and consider the applicant’s interpretation of Scarlett in my decision calls into question the soundness of my findings. The applicant argues that according to Scarlett the court discussed burden of proof, explaining that it begins with the insured person establishing entitlement to a benefit before shifting to the insurer and that my failure to include (consider) her interpretation of this case law calls into question the soundness of my findings and my decision. The applicant further suggests that the Schedule does not set out any procedural obligation for the insured person to fulfill, and she submits that, under s. 37(1)(b), it is the insurer’s responsibility to request a new disability certificate to be submitted by the insured person to determine their ongoing entitlement to the benefit.
20The respondent submits that I did not err in law by placing the burden of proof on the applicant to establish entitlement to an IRB. It argues that the applicant’s reconsideration submission on this issue is an attempt to re-litigate her initial arguments, and that the applicant has not established any substantive grounds for reconsideration. The respondent further argues that I correctly interpreted and applied s. 6(2)(b) of the Schedule, which sets out the post-104-week disability test for the IRB.
21It further argues that my decision is consistent with established legal principles and supported by relevant case law, including Scarlett, and that my findings reflect a thorough and accurate interpretation of the Schedule and Scarlett.
22I find that the applicant has not established grounds for reconsideration based on the onus of proof for the following reasons.
23The applicant relies on s. 37(1) of the Schedule, which is a provision that the insurer may take by requesting the applicant submit a new disability certificate, however in this case the insurer did not request a new disability certificate from the applicant.
24In this case, the respondent relied on its multidisciplinary assessments to terminate the applicant’s entitlement to the IRB in accordance with s. 37(4)(6) of the Schedule, as discussed above, as well as in paragraphs 18, 48 – 52 of my decision. Therefore, the onus to prove entitlement to the IRB lies with the applicant as specifically noted at para 54 of my decision outlined below:
The applicant has relied on the Tribunal to disqualify the respondent’s medical evidence in her claim to a post 104-IRB rather than accepting that the onus is on the applicant to prove entitlement to the IRB. I find that the respondent fulfilled their procedural obligations in accordance with the Schedule.
25Finally, it is well established that the onus to prove entitlement to a benefit like the IRB lies with the insured person, i.e., the applicant in this case. While I was silent in my decision regarding the applicant’s position as it relates to Scarlett, the applicant has not shown how her interpretation of this case, or any other precedent would alter my conclusion about which party has the onus of proof. In addition, Scarlett supports the respondent’s position, namely the claimant initially bears the onus and the insurer’s reliance on s. 37(4) and 37(6) does not shift the onus prematurely. The applicant has not demonstrated that the case law she relies upon supports the proposition that, when an insurer relies on a denial provision (which it has in this case), then the burden shifts to the insurer to prove that the insured person is no longer entitled to a benefit.
26As it relates to the onus of proof, I find that the applicant has not established that she has met the criteria under Rule 18.2(a) or Rule 18.2(b). In addition, the applicant did not produce compelling medical evidence to support her claim even if the burden was reversed. A reconsideration is not an avenue to re-argue one’s case. Therefore, I find the applicant has not shown I erred in law or fact, such that I would likely have reached a different result, nor has she shown I committed a material breach of procedural fairness, in this regard.
Dr. Nesterenko’s Document Review
27Finally, regarding the document review of one of the parties’ experts, I find that the applicant has not established grounds for reconsideration.
28The applicant submits that I committed an error of fact in finding that Dr. Nesterenko, general practitioner, reviewed and considered Dr. Holland’s FAE in her report dated January 18, 2021. She submits that the FAE report, dated June 22, 2020, is not listed as one of the documents in Dr. Nesterenko’s appendix of document review.
29The respondent argues that the applicant is attempting to re-litigate its case, and that the applicant’s position on the document review of Dr. Nesterenko’s report was not argued at first instance. The respondent argues that Dr. Nesterenko did review and comment in her report on the FAE, and that I did not commit an error of fact, nor did I act in a manner that was procedurally unfair.
30The applicant has not established grounds for reconsideration in this regard. Aside from the fact that the applicant did not raise this argument at first instance, Dr. Nesterenko did consider the FAE report as indicated in paragraphs 19-23 of my decision. Additionally, Dr. Nesterenko’s report referenced the identical language and date (June 22, 2020) from Dr. Holland’s report as Dr. Holland opines that the applicant’s efforts of the evaluation as “Declining and terminating multiple tests prior to demonstrating objective signs of exertion suggests that a reasonable effort was not given during this assessment, and Ms.Ahmadpour’s overall performance was considered invalid. This evaluation is not a true indication of her abilities due to self-limiting behaviour. This would suggest that Ms. Ahmadpour might be capable of greater abilities”.
31The applicant has not established that I nor Dr. Nesterenko did not consider Dr. Holland’s report such that would likely have affected the result of my decision.
32Reconsideration is not an avenue for the applicant to introduce a new argument that was not raised during the hearing nor re-argue one’s case. Therefore, the applicant’s request for a reconsideration of my decision is dismissed because I did not make an error of fact or law such that a different result would be reached, nor did I commit a material breach of procedural fairness.
CONCLUSION & ORDER
33The applicant’s request for reconsideration is dismissed.
John Mazzilli
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: July 9, 2025