RECONSIDERATION DECISION
Before: Rebecca Hines
Licence Appeal Tribunal File Number: 23-005657/AABS
Case Name: Johanna Thompson v. Certas Home and Auto Insurance Company
Written Submissions by:
For the Applicant: Dagmara Wozniak, Counsel
For the Respondent: Vicky Chan, Counsel
BACKGROUND
1The respondent is seeking a reconsideration of my decision released on March 19, 2025 ("decision"), in which I determined that the applicant met the test for post-104 income replacement benefits (IRBSs).
2The grounds for a reconsideration to be allowed are set out in Rule 18.2 of the Licence Appeal Tribunal Rules 2023 (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.
3In its request for reconsideration, the respondent identifies criteria b) of Rule 18.2 as the basis for reconsideration and argues that I made an error of law such that the Tribunal would have reached a different result had the error not been made.
4The applicant opposed the respondent's reconsideration request and argues that my decision is correct. Finally, she submits that any alleged error would not have changed the result.
RESULT
5The respondent's request for reconsideration is dismissed.
ANALYSIS
6Under Rule 18.2, the threshold for reconsideration is high. Reconsideration is a limited, error-correcting exercise, not a new hearing or an appeal of a hearing decision. The party requesting reconsideration must demonstrate how the Tribunal's decision falls into one or more of the criteria set out in Rule 18.2.
I did not error in law such that I would have reached a different result had the error not been made.
7The respondent submits that I erred in law by applying the wrong legal test in my determination that the applicant met the test for post-104 IRBs pursuant to s. 6(2)(b) of the Schedule. It argues that in paragraph [17] of my decision, I referred to the Court of Appeal's decision in Burtch v. Aviva Insurance Company of Canada, 2009 ONCA 479 ("Burtch") and erroneously concluded that it had endorsed the following principles in assessing suitable alternative occupations in assessing the post-104 legal test:
i. A job cannot be considered a suitable alternative if a substantial amount of upgrading is required;
ii. While the primary focus in determining whether a job is a suitable alternative is on the insured's functional limitations, job market considerations are also relevant; and
iii. A suitable alternative occupation must be reasonably comparable to the insured's former job both in status and reward.
8The respondent submits that I then proceeded to base my analysis on the applicant's entitlement to post-104 IRBs based on this error. The respondent maintains that I should have followed the court's decision in Traders General Insurance Company v. Rumball 2022 ONSC 7215 ("Traders") that it relied on in its initial submissions for the written hearing. It maintains that Traders supports that the only consideration in assessing post-104 IRBs is what is set out in s. 6(2) (b) of the Schedule. Consequently, I made an error in law in considering whether suitable alternative occupations were comparable in status and reward in paragraph [24] of my decision.
9The applicant argues that my decision is correct and that any alleged error would not result in a different decision. She relies on numerous decisions of this Tribunal where adjudicators have applied the principles set out Burtch when assessing suitable alternative employment for post-104 IRBs. Further, the applicant asserts that Traders is currently under appeal.
10I find that I did not error in law for the following reasons.
11First, I find that I applied s. 6(2)(b) of the Schedule to the facts before me in finding that the applicant suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience. I agree with the respondent that this is the only disability test to be applied to an insured's post-104 entitlement to IRBs.
12Second, I find that in paragraphs [19] to [26] of my decision, I provided detailed reasons where I assessed the medical evidence before me which I found established that the applicant met the disability test because of her physical, psychological, and cognitive impairments.
13Third, even if I erred in my interpretation of Burtch or in my consideration that alternative employment had to be comparable in status and reward in paragraph [24], I find it would not have changed the result. In paragraphs [25] and [26] of my decision I determined that the applicant would not be able to work in the alternative occupations identified by the respondent's assessors because of her accident-related impairments. I find that whether those occupations were comparable to the applicant's pre-accident occupation as far as status and reward ultimately had no bearing on the final decision.
14For the above-noted reasons, I find that the respondent has not met its onus in proving that I erred in law in my application of the law or consideration of the evidence which would result in a different result.
ORDER
15For all the above-noted reasons, the respondent's request for reconsideration is dismissed.
Rebecca Hines Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: July 17, 2025