RECONSIDERATION DECISION
Before: Michael Beauchesne, Adjudicator
Licence Appeal Tribunal File Number: 22-010075/AABS
Case Name: Paula Longboat v. Gore Mutual Insurance Company
Written Submissions by:
For the Applicant: Mikolaj Grodzki, Counsel
For the Respondent: Arthur Camporese, Counsel
OVERVIEW
1On February 12, 2025, the applicant requested reconsideration of the Tribunal’s decision dated January 27, 2025 (“decision”).
2Following a written hearing, the decision was issued. The decision determined that the applicant was not entitled to an income replacement benefit (“IRB”) and that the respondent was not liable to pay an award.
3The grounds for a reconsideration request are found in the Licence Appeal Tribunal Rules, 2023 (“LAT Rules”) at LAT Rule 18.2. 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 this case, the applicant is arguing that criteria (a), (b), and (c) as outlined in LAT Rule 18.2, apply.
5The applicant asks that the Tribunal cancel the original decision and order a new hearing. The respondent requests an order denying the applicant’s request for consideration.
RESULT
6The applicant’s reconsideration request is dismissed.
ANALYSIS
7The test for reconsideration under LAT 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 LAT Rule 18.2.
LAT Rule 18.2(a) & (b): The applicant has not shown the Tribunal committed a material breach of procedural fairness, nor an error of law or fact that would likely have produced a different result had the error not been made.
8I find the applicant has not shown the Tribunal’s decision was procedurally unfair, nor has she shown that it made an error of fact or law that would likely have produced a different result had the error not been made.
9Starting with procedural fairness, the applicant submits the Tribunal committed a material breach by allowing and granting the respondent to bring a motion—seven days after the scheduled hearing date—to strike some of her evidence. The applicant also says the Tribunal unfairly disallowed her from relying on a November 2020 Ontario Disability Support Program (“ODSP”) letter as evidence, as well as a February 2024 financial brief. According to the applicant, these documents were served 100 days before the hearing. The applicant reasons that the respondent is not prejudiced by when she filed this evidence because it was earlier aware of these documents. The applicant adds that it was unfair for the Tribunal to conclude that her section 25 report was not supported by contemporaneous evidence because she filed the ODSP letter, which corroborated the opinions of her expert.
10In her reconsideration request reply, the applicant relies on the following authorities to show it was not within the Tribunal’s discretion to permit the respondent’s motion and exclude the evidence filed in her reply submissions. These cases include: (1) Plante v. Economical Insurance Company, 2024 ONSC 7171 (“Plante”); (2) Vivekanantham v. Certas Direct Insurance Company, 2024 ONSC 6198 (“Vivekanantham”); (3) Jendrika v. Intact Insurance Company, 2025 ONSC 652 (“Jendrika”); (4) R. v. Cameron, 2006 CanLII 16078 ON CA (“Cameron”); (5) Mattamy (Downsview) Limited v. KSV Restructuring Inc. (Urbancorp), 2023 ONSC 3013 (“Mattamy”); (6) Holland (Re), 2023 CanLII 28171 ON HRAP (“Holland”); (7) R. v. M.C., 2023 ONCA 611 (“M.C.”); (8) R. v. F.E.E., 2011 ONCA 783; (9) College (Veterinarians of Ontario) v Bangar, 2025 ONCVO 2; (10) Law Society of Ontario v. Khan, 2023 ONLSTA 17; and (11) Giannoylis v. Travelers Insurance, 2022 CanLII 33250 ON LAT (“Giannoylis”).
11From an error of law or fact perspective, the applicant submits it was wrong to conclude that she was not employed for at least 26 of 52 weeks before the accident.
12While the applicant’s reconsideration submissions also argue that the respondent failed to observe its duty of good faith in adjusting her claim—and requests an adverse inference be drawn against the respondent for lack of transparency—I have not considered this position because the applicant did not discharge her onus to show how this relates to the reconsideration criteria at LAT Rule 18.2, as she is required to do. The scope of a reconsideration request extends to identifying and fixing one of the errors enumerated under LAT Rule 18, and LAT Rule 18.1 requires the applicant’s submissions to specify the applicable criteria under LAT Rule 18.2 to support her request for an adverse inference. In my view, the applicant’s submissions amount to a grievance of the respondent’s conduct and do not identify a reviewable error in the context of reconsideration.
13The respondent argues that the applicant’s position on the ODSP letter is misleading because this evidence was served for the first time with her reply submissions. The respondent counters the applicant’s claim that the respondent was not prejudiced by the contested evidence by arguing it fails to acknowledge that she cannot split her case to preclude a response from the respondent, which has no right of sur-reply. The respondent asserts that the applicant cannot use her reply to introduce new evidence or arguments to supplement her initial submissions to the prejudice of the respondent.
14The respondent also maintains that the Tribunal’s conclusion on the applicant’s employment prior to the accident was correct on the basis of the evidence before it at the time of hearing.
The respondent’s motion
15I find the applicant’s reconsideration submissions seek to re-litigate the Tribunal’s decision to hear and grant the respondent’s motion at the hearing.
16For context, the written hearing was scheduled to proceed on May 31, 2024. The respondent’s motion was filed on June 7, 2024, in response to the applicant’s reply submissions that were filed on May 22, 2024. The Tribunal issued a notice on June 10, 2024, ordering the respondent’s motion to be heard as part of the written hearing. The notice further provided the applicant an opportunity to respond by June 17, 2024, and the respondent was given until June 24, 2024, to file a reply.
17The respondent’s motion is addressed at paragraphs 9 through 14 of the decision. The Tribunal noted the applicant did not point to a LAT Rule that established a requirement for parties to seek leave from one another before filing a motion after the start of a hearing. The Tribunal also noted that the applicant’s response to the motion did not explain how the motion breached the timelines ordered in the case conference report and order (“CCRO”) or specify which CCRO timelines she was relying upon. Further, the Tribunal addressed the applicant’s arguments about power imbalance and the jurisprudence she relied on to support her position that the respondent must live with the consequences of filing its motion past the hearing date without seeking consent to do so.
18I reject the applicant’s position, taken in her reconsideration submissions, that the Tribunal ambushed the applicant by granting the respondent an opportunity to make its motion seven days after the scheduled hearing date. In my view, the Tribunal’s motion notice afforded the applicant ample opportunity to respond to the motion, which she did on June 12, 2024.
19I also disagree with the applicant’s assertion that the LAT Rules do not provide for motions to be heard or scheduled after a hearing starts. The applicant points to LAT Rule 9.4.4 to show she was compliant in serving and filing the excluded documents. I find this argument unpersuasive because LAT Rule 9.4.4 applies only to electronic and in-person hearings. Further, it does not address the timeliness of motions. In any event, LAT Rule 15 pertains to motions and does not require a party to file a motion by a certain time. It also provides jurisdiction for adjudicators to order that a motion be heard at a scheduled event, such as a written hearing. In my view, motions can arise during a hearing and the need for the respondent’s motion, in this case, arose after the applicant filed her reply submissions. While the respondent did not explain why it took two weeks to file its motion after the applicant’s reply, I find this delay, in and of itself, does not bar the respondent from bringing its motion to the proceedings.
20The applicant invokes the earlier cited authorities to contradict the respondent’s position, which she interprets to mean that the Tribunal has broad discretion without regard to procedural fairness. I find the applicant fundamentally misrepresents the respondent’s position. While I agree the respondent submits the LAT Rules and Statutory Powers Procedure Act (“SPPA”) afford the hearing adjudicator with broad discretion, I also find that discretion is not limitless and must be exercised with a duty to be procedurally fair to the parties. In fact, this principle is supported by the jurisprudence filed with the applicant’s reconsideration reply submissions.
21That said, I find the authorities cited by the applicant do little to show the Tribunal committed a material breach of procedural fairness in this case. While I agree that each case reinforces the procedural fairness owed to parties by the Tribunal, none address the issue of considering motions filed after the scheduled start date of a written hearing, which is at the heart of the applicant’s reconsideration request. For example, they address reducing the length a hearing and separating electronic hearings without proper notice, as well as improperly relying on the testimony of an assessment company witness by disallowing the testimony of the expert witness who authored the assessment company report (i.e., Plante); failing to address the weight and admissibility of afforded expert reports where the author was not cross-examined (i.e., Vivekanantham); and the application of the correctness standard to procedural fairness challenges (i.e., Jendrika). I find the balance of the authorities cited by the applicant are similarly contextually detached from the central issue of whether the Tribunal acted unfairly by hearing and granting the respondent’s motion during the written hearing.
22I also find the applicant is seeking to re-litigate the Tribunal’s decision to exclude the evidence she filed with her reply submissions. The applicant’s reconsideration submissions repeat her written hearing argument that the respondent was not prejudiced by this evidence because she served the excluded documents several months well before the hearing.
23However, I find the applicant presents a narrow reading of the reasons why her evidence was excluded. The applicant says that dismissing her evidence due to late filing is “tremendously prejudicial” and “contrary to procedural fairness.” However, the crux of the Tribunal’s decision was based on the respondent’s inability to respond to evidence that the applicant now characterizes as “crucial,” “uncontested,” and the “foundation of her case” despite not filing or referring to them in her written submissions.
24This is all addressed at paragraph eight of the decision, where the Tribunal notes that the applicant did not file the ODSP letter or financial brief with her initial written submissions as required by the CCRO. As such, the respondent did not address these documents in its written submissions because the applicant did not file them for consideration or rely on them to support her arguments at first instance. Further, the respondent had no opportunity to rebut this evidence. Therefore, the Tribunal determined it would be procedurally unfair to admit these newly introduced documents owing to the prejudice to the respondent.
25In conclusion, the Tribunal has discretion regarding procedural choices, and addressing this issue by striking evidence from the applicant’s reply was open to it. I find the applicant has not shown that it was a denial of procedural fairness to do so in this case.
Error of law or fact
26I find the applicant did not point to legal or factual errors in the Tribunal’s analysis of evidence that was before the proceeding to show she worked at least 26 of 52 weeks before the accident. Rather, the applicant’s reconsideration submissions rely on the excluded financial brief to show she worked at least 26 of the 52 weeks before the accident. Given that this evidence was not admitted to the written hearing, the Tribunal did not have to consider it. Similarly, I find the applicant has not shown that the Tribunal made an error of law or fact in determining she led insufficient evidence to corroborate the opinions of her section 25 assessor. This is because the applicant’s reconsideration submissions rely solely on the excluded ODSP letter as contemporaneous evidence of disability. Again, this evidence was not admitted to the hearing.
27Even if I accepted the Tribunal had made an error of law or fact pertaining to the number of weeks the applicant worked before the accident, I find the Tribunal would likely not have reached a different result. The applicant’s reconsideration request does not dispute the Tribunal’s finding that she was unemployed at the time of the accident, and an insured person who is unemployed at the time of an accident must meet a three-part test at section 5(1)(1)(ii) of the Schedule. This test includes proof of a substantial inability to perform the essential tasks of the employment that the most time was spent in the 52 weeks before the accident. At paragraph 28 of the decision, the Tribunal explains that the applicant did not establish the essential tasks of her pre-accident employment, and therefore she could not meet this entitlement test. The applicant does not challenge this finding in her reconsideration request.
LAT Rule 18.2(c): The applicant does not establish she could not have previously obtained the adjuster log notes she now seeks to put before the Tribunal.
28I decline to consider the adjuster log notes filed with the applicant’s reconsideration submissions because she has not shown that she could not have previously obtained them.
29The applicant requests that adjuster log notes now be considered that were not before the Tribunal at the time of the written hearing. She explains that entries made in December 2018, February 2019, and June 2022 confirm the respondent knew she had worked at least 26 of the 52 weeks before the accident. In her reconsideration reply, the applicant says she did not rely on the adjuster log notes in her motion response because she was afforded inadequate notice of the motion and was unable to properly prepare for it.
30The respondent argues that it produced the log notes to the applicant in December of 2023, and that it was therefore open to the applicant to rely on this evidence in her initial submissions.
31Under LAT Rule 18.2(c), the applicant must show that the evidence she now seeks to introduce could not have been obtained previously. I find the applicant’s reconsideration submissions indicate only that she did not rely on the adjuster log notes. There is no indication she had been unable to obtain this evidence at the time of the respondent’s motion—or at the time she filed her written hearing submissions for that matter. As well, at paragraph seven of the decision where the applicant’s motion submissions are laid out, there is no mention of the applicant having trouble obtaining adjuster log notes to support her case. I find the applicant’s explanation for the late filing of the adjuster log notes (i.e., that she was afforded inadequate notice of the motion and was unable to properly prepare for it) is further diminished because her reconsideration submissions and reply do not point to evidence that shows she requested more time to prepare her motion submissions or obtain adjuster log notes.
32In any event, I fail to see how the applicant’s rationale for why she did not rely on the log notes to respond to the respondent’s motion is relevant to whether she could have relied on them to make her case at first instance. I accept that five months prior to the scheduled date of the written hearing, the respondent produced adjuster log notes from February 6, 2019, to October 3, 2023. While the applicant’s reconsideration submissions also point to log notes dated earlier in December 2018 and February 2019, she has not persuaded me that she was unable to obtain these log notes prior to the scheduled hearing date of May 31, 2024.
CONCLUSION & ORDER
33The applicant’s reconsideration request is dismissed.
Michael Beauchesne
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: July 9, 2025