Reconsideration Decision
Before: Sandeep Johal, Associate Chair (A)
Licence Appeal Tribunal File Number: 23-004180/AABS
Case Name: Milan Ganopolsky v. Security National Insurance Company
Written Submissions by:
For the Applicant: Peter Cimino, Counsel
For the Respondent: Ken Yip, Counsel
OVERVIEW
1On July 17, 2024, the Tribunal released its decision on this matter and found that the applicant did not sustain a catastrophic impairment under Criteria 7 or 8 as defined under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The Tribunal also found the applicant was not entitled to an attendant care benefit, the catastrophic impairment responding reports and was not entitled to interest on any overdue benefits.
2The applicant filed a request for a reconsideration of the decision on two grounds. First, that the Tribunal committed a material breach of procedural fairness by not adjourning the hearing to permit cross-examination of the respondent’s catastrophic assessment, Dr. Sherise Ali. The second ground for the reconsideration request was that the Tribunal ruled that late filed surveillance would be excluded, but then the surveillance was relied upon in the decision to deny benefits to the applicant.
3The Tribunal released its reconsideration decision on October 24, 2024 and dismissed the applicant’s request, finding that the Tribunal did not commit a material breach of procedural fairness.
4On February 26, 2025, I wrote to the parties to advise them that, under Rule 18.5 of the Licence Appeal Tribunal Rules, 2023 (“Rules”), I have decided to initiate a review of the Tribunal’s decision, dated July 17, 2024, and the reconsideration decision, dated October 24, 2024 (incorrectly noted as October 25, 2024 in the letter).
5The letter sought submissions from the parties on whether the Rule 18.2 criteria were met, and, if so, what the outcome under Rule 18.4 should be. Both parties filed submissions for consideration.
6The grounds for a request for reconsideration are found in Rule 18.2 of the 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.
RESULT
7The Tribunal committed a material breach of procedural fairness. The decision and reconsideration decisions are cancelled, and a new hearing is ordered. The Tribunal shall canvass the parties for a case conference date as soon as possible.
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 committed a material breach of procedural fairness
9I find that the applicant has established grounds for reconsideration as the Tribunal committed a material breach of procedural fairness. Specifically, I find the Tribunal breached procedural fairness as the respondent, on the first day of the hearing, advised the Tribunal and the applicant that Dr. Ali would not be available to be cross-examined, despite being listed as a witness on the respondent’s final witness list. The Tribunal then relied on the evidence of Dr. Ali, despite Dr. Ali not being available for cross-examination.
10The applicant submits the respondent confirmed to him on May 15, 2024 that Dr. Ali would be in attendance at the hearing set to begin on May 21, 2024. It was not until the morning of the hearing when the respondent, for the first time, informed the Tribunal and the applicant that Dr. Ali would not be testifying. The applicant did not seek to summons Dr. Ali, as the respondent had confirmed days before the hearing that she would be available for cross-examination. The applicant advised the Tribunal and the respondent of his intention to cross-examine Dr. Ali, as her evidence was central to the CAT determination issue, and it was at odds with the opinion of his own CAT physiatry assessor, Dr. Shahamalak.
11The applicant made a request for an adjournment, which was denied as the Tribunal found that, to satisfy its goal of providing fair and timely resolutions of disputes, the appropriate remedy in the circumstances was for the parties to make submissions in their closing arguments on the weight to be assigned to Dr. Ali’s report. The Tribunal admitted Dr. Ali’s report into evidence under s. 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”).
12The applicant relies on the Divisional Court cases of Shahin v. Intact Insurance Company, 2024 ONSC 2059 (“Shahin”) and Plante v. Economical Insurance Company, 2024 ONSC 7171 (“Plante”) in support of his position that, by relying on the report of Dr. Ali, who was not made available to be cross-examined, the Tribunal breached procedural fairness.
13The respondent takes the position that no material breach of procedural fairness occurred, because, in its final witness list, it clearly indicated that it intends, but does not undertake, to call Dr. Ali as a witness. The applicant did not indicate he wishes to cross-examine Dr. Ali until the first day of the hearing and never obtained a summons for Dr. Ali.
14The respondent further submits that Shahin and Plante are distinguishable from the present case. In Shahin, the witness testified in-chief, but he did not re-attend to be cross-examined. The Divisional Court in Shahin held that, once it became clear that the witness did not plan to re-attend for cross-examination, the Tribunal should have disregarded this evidence and struck the report from the record: see Shahin, at para. 12. According to the respondent, Dr. Ali did not provide in-chief testimony, and there is no unchallenged oral evidence from Dr. Ali that would taint her report. The respondent also relies on the fact that Dr. Ali was not summonsed, and, as a result, there was no unfair advantage.
15The respondent submits that Plante is also distinguishable, because, in that case, there was a clear inconsistency on a key issue in the expert witness report, and, when the applicant sought to cross-examine the expert, the adjudicator denied the request and ordered the parties to argue weight. According to the respondent, the applicant in Plante made a request two weeks before the hearing to cross-examine the expert, but the respondent elected not to call the expert as a witness.
16It is the respondent’s position that Dr. Ali was unable to attend due to a medical emergency, and the applicant did not indicate he wanted to cross-examine Dr. Ali prior to the hearing, nor did he take any steps to summon Dr. Ali. Dr. Ali was not “reasonably required for a full and fair disclosure” (SPPA, s. 10.1), and, therefore, it argues there was no breach of procedural fairness.
17I agree with the applicant’s position and find that a material breach of procedural fairness occurred for the following reasons.
18A party is entitled to rely on the final witness list of the opposing party as opposed to an undertaking to call the witness. Here, the respondent had Dr. Ali on its final witness list, and the applicant was entitled to rely on that list without having to issue a summons for those same witnesses. The applicant made it known he intended to cross-examine Dr. Ali at the hearing, as her report was central to the issue in dispute about whether the applicant had a catastrophic impairment.
19Once it was clear that Dr. Ali was not going to appear at the hearing to be cross-examined, the Tribunal should not have relied on her report. Here, the Tribunal said it would take submissions on the weight to be assigned to that report. However, despite saying it would do so, the decision did not explain what weight was in fact, assigned when it relied on that evidence.
20The Tribunal referred to Dr. Ali’s evidence to support its conclusions. Even though, at paragraph 36 of the decision, the Tribunal mentions “while we assign less weight”, it still went on to use the report to corroborate other evidence in support of its conclusions. Although the decision said the Tribunal is assigning less weight, it is not clear that was, in fact, done. In these circumstances, I find the Tribunal’s reliance on the untested evidence of Dr. Ali’s report is a material breach of procedural fairness.
21In paragraph 50, the Tribunal notes that Ms. Ghatas and Dr. Ali both describe the applicant as being pleasant, smiling and joking regularly when making its finding that the applicant exhibits a mild impairment in social functioning, one of the domains to determine if the applicant may have a catastrophic impairment under Criterion 8. In paragraph 51, the Tribunal states it finds the respondent’s CAT assessors’ evidence more compelling than the applicant’s evidence.
22In my view, these examples show that the Tribunal’s reasoning was affected by its reliance on Dr. Ali’s report to support its conclusions. Without the opportunity to cross-examine Dr. Ali, and without discussing in its reasons how much weight was assigned to her report, the Tribunal’s reliance on Dr. Ali’s report to support its conclusions is a material breach of procedural fairness.
23At paragraph 14 of the reconsideration decision, the Tribunal distinguished Shahin on the basis that Dr. Ali did not testify, and so there was no untested oral evidence to infect the Tribunal’s conclusion on the CAT determination. The reconsideration decision further goes on to state at paragraph 19 that accepting the report into evidence in accordance with s. 15 of the SPPA and allowing the parties to make submissions on weight was procedurally fair.
24I would respectfully disagree. Dr. Ali’s in-chief evidence was, in effect, her report. Even if she testified, it would have been improper for her to give testimony outside of the four corners of her report. In my view, relying on s. 15 of the SPPA to admit a report under these circumstances does not alleviate the procedural unfairness caused by relying on this evidence to support the Tribunal’s ultimate decision. Further, the lack of reasons in the decision on whether there was less weight assigned to the report and what that meant for the overall assessment of the evidence is also a material breach of procedural fairness.
25For these reasons, I find that the Tribunal’s decision and reconsideration decision must be set aside on the basis of a material breach of procedural fairness, pursuant to Rule 18.2(a).
26In view of my conclusion on this issue, there is no need to address the applicant’s submission that the Tribunal relied on excluded surveillance evidence and whether that was a denial of procedural fairness.
Rule 18.4 – Cancelling the Decisions
27Having found the applicant has established a material breach of procedural fairness, pursuant to Rule 18.2(a), I must now consider what order is appropriate under Rule 18.4.
28In light of the significant impact that this breach had on the decision and the reconsideration decision, I find it is appropriate to cancel both decisions. I then order that a new hearing will take place before a different adjudicator or panel.
CONCLUSION & ORDER
29As a result of the above, the reconsideration initiated under Rule 18.5 is granted. The Tribunal decision and reconsideration decision are both cancelled, pursuant to Rule 18.4.
30A new hearing will take place before a different adjudicator or panel. The Tribunal’s scheduling unit will canvass the parties for a case conference.
Sandeep Johal
Associate Chair (A)
Tribunals Ontario – Licence Appeal Tribunal
Released: July 4, 2025