RECONSIDERATION DECISION
Before: Michael Beauchesne, Adjudicator
Licence Appeal Tribunal File Number: 22-012405/AABS
Case Name: Koos Duali v. The Dominion of Canada General Insurance Company
Written Submissions by:
For the Applicant: Ryan Naimark, Counsel
For the Respondent: Jason Hepburn, Counsel
OVERVIEW
1On February 18, 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 the applicant was not entitled to an attendant care benefit (“ACB”) or expenses and that none of the disputed medical benefits were payable. The decision also determined no interest was payable, 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) and (b), as outlined in LAT Rule 18.2, applies.
5The applicant asks that the Tribunal cancel the original decision and order an electronic hearing, or, alternately, a new written hearing. In the event the Tribunal does not cancel the decision, the applicant requests that the Tribunal vary the decision to find her entitled to an ACB in the amount of $969.65 per month.
6The respondent requests that the Tribunal dismiss the applicant’s reconsideration request.
RESULT
7The applicant’s reconsideration request is dismissed.
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) and (b): The applicant has not shown that the Tribunal committed a material breach of procedural fairness, or a legal or factual error, by dismissing her claim without reviewing certain evidence.
9I find the applicant has not established a material breach of procedural fairness relating to the consideration of certain evidence, nor has she established an error of fact or law in this regard.
10The applicant submits that the Tribunal committed a material breach of procedural fairness by ignoring the evidence pinpointed at Tab 16(A) of her hearing brief. She says the Tribunal would have reached a different result with respect to her ACB, incurred expenses, and treatment plan (“OCF-18) entitlement if it had considered this evidence.
11The applicant explains, in both her reconsideration submissions and reply, that she erred in believing the tabs in her hearing brief (i.e. document or evidence brief) would be filed as separate PDFs due to the document size, and that their compilation as a single PDF made the evidence admittedly difficult to locate with the citations in her submissions. The applicant maintains that the evidence in Tab 16(A) was included in her hearing brief, and that if Tab 16(A) is extracted, the page locations correlate with the “Bates page numbering “at the bottom right of each page.
12The applicant relies on Di Giulio v Aviva General Insurance, 2024 CanLII 889 ON LAT (“Aviva”) to show that a material breach of fairness is made out where paginated and tabbed evidence is not considered.
13The respondent argues that the applicant failed to comply with the case conference report and order (“CCRO”) for the written hearing because she did not limit documents to those she intended to refer to in the hearing. The respondent explains that the applicant re-filed a reduced hearing brief after the deadline ordered for her submissions and evidence, and after the respondent had filed its written submissions.
14The respondent also contends that the applicant did not consistently cite tab and page numbers for evidence in her submissions (i.e., not including page numbers for tabs in her hearing brief index and consecutively numbering the tabs referenced in her submissions). In addition, the respondent says the applicant mischaracterized the Tribunal’s exercise of discretion to not review evidence by saying it was “simply ignore[ed].” The respondent offers that the reason the Tribunal did not consider the evidence was because it was unable to locate it in the applicant’s hearing brief—not because it chose to ignore this evidence.
15The respondent adds that Aviva is distinguishable from this case because the applicant’s evidence was not paginated and tabbed in compliance with the CCRO. The respondent relies on Adeyeo v. Aviva Insurance Company, 2024 CanLII 106228 ON LAT (“Adeyeo”) to show that the Tribunal is not expected to sort through the parties’ evidence and try to figure out how to make their cases.
16In my view, given the parties’ submissions, the deep issue here is whether the evidence at Tab 16(A) was before the Tribunal at the time of the written hearing, and if so, whether it was referenced in such a manner that the Tribunal could have reasonably located it. The short answer is that the applicant did not file the contested evidence despite referencing it in her submissions.
17For context, the applicant filed two sets of separate written submissions on the same day in February 2024, as well as two separate hearing briefs—one in February 2024 and the other in March 2024. The Tribunal relied on the second set of written submissions and the first hearing brief filed in February 2024. Its reasons for this determination are documented in paragraphs 13 through 17 of the decision. In summary, the Tribunal reasoned that:
(a) The second set of written submissions (i.e., the revised version) and the February 2024 hearing brief were relied upon by both parties at the time of their written hearing submissions;
(b) The February 2024 brief was confirmed by the applicant to align with the revised version of her submissions; and
(c) The applicant’s re-filed hearing brief was untimely (i.e., submitted after the respondent had already filed its submissions) and she did not avail herself of proper procedure to file a motion seeking to introduce the new brief to the hearing.
18With this framing in mind, I find the applicant has not shown that the evidence in Tab 16(A) was before the Tribunal. As such, I can then conclude that she has not shown there was a material breach of procedural fairness.
19The applicant’s reconsideration request submissions indicate, that while she believed her February 2024 evidence brief would be filed as separate PDF documents, the hearing brief was ultimately compiled and filed as a single PDF. This is incorrect. At paragraph 14 of the decision, the Tribunal indicates that the applicant’s hearing brief was filed on February 28, 2024, as “18 separate emails that encompassed some 71 tabs and amounted to what the applicant estimated as more than 10,000 pages of evidence.” Tab 16(A) was not included in this filing, as indicated at paragraph 20 of the decision.
20For what it’s worth, I also find that the evidence in Tab 16(A) was omitted from the second hearing brief filed by the applicant on March 20, 2024.
21The applicant’s reconsideration request submissions provide coordinates that cross-reference the footnotes in the applicant’s submissions to the Bates numbering in the bottom right-hand corner of each page of her evidence brief. I take this to mean the March 2024 hearing brief because the February 2024 hearing brief was not page numbered, and the index for that brief provided no page numbers with which to locate tabs. For example, she says that Dr. Gwardjan’s January 2014 consultation at page 316 of Tab 16(A) corresponds to pages 5,554 and 5,555 of her hearing brief. However, I find that the March 2024 hearing brief, which was filed in three separate emails (i.e., Parts 1, 2 and 3) and included six PDF attachments, does not include any evidence past page 5,059, per the Bates numbering system. Given that all the cross-referenced Tab 16(A) evidence mentioned in the applicant’s reconsideration request submissions is said to be numbered past page 5,059, I am persuaded this specific evidence was not filed with the Tribunal and therefore could not be reviewed and considered.
22In fact, paragraph 20 of the decision indicates that despite the Tribunal’s efforts to cross-reference the index of the applicant’s March 2024 hearing brief with her submissions—notwithstanding that the Tribunal was not relying on the March 2024 brief—it could not locate the Tab16(A) evidence because it was missing altogether from both of her hearing briefs.
23While the applicant maintains she re-filed her hearing brief in March 2024 because she was uncertain as to whether the brief earlier filed in February 2024 was received, I find the evidence does not support this position. On the evening of February 28, 2024, between 6:29 p.m. and 6:44 p.m., the applicant successfully filed her hearing brief as multiple attachments in a series of separate e-mails. I note that none of these e-mails asked the Tribunal to confirm receipt or otherwise expressed concerns as to whether the Tribunal was receiving them. The applicant’s reconsideration submissions do not point to correspondence with the Tribunal from this point onwards to show she was uncertain as to the filing status of her February 2024 hearing brief. Given what was at stake for the applicant, I find it unlikely on a balance of probabilities that she would wait almost a month until a week before the hearing was scheduled to start—and after the respondent had filed its submissions—to address concerns she may have had about the filing status of her hearing brief.
24The applicant also submits that the Tribunal erred by finding that Dr. Shaban’s May 2023 clinical record entry did not appear in evidence. The applicant maintains that this evidence was at Tab 3C of the hearing brief as noted at footnote 32 of her submissions.
25I find the Tribunal erred in its finding that Dr. Shaban’s sleep recommendations (i.e., sleep aids and nortriptyline prescription) did not appear in evidence. Indeed, they are included in Dr. Shaban’s May 2023 note, which is at Tab 3C of both hearing briefs filed by the applicant. However, I find this error is attributable to the applicant incorrectly citing this evidence and hampering the Tribunal’s ability to locate it in her brief. Contrary to the applicant’s reconsideration request submissions, she raises Dr. Shaban’s sleep recommendations at paragraph 30 and footnote 26 of her written hearing submissions, which points to page 1,097 of the missing Tab 16(A), and not Tab 3C. In fact, footnote 32 at paragraph 41 of the applicant’s hearing submissions pertains to Dr. Shaban’s recommendation that the applicant should not perform repetitive motions with the left shoulder or lifting at all with the left shoulder, which the Tribunal considered and weighed at paragraph 36 of the decision.
26It is apparent the Tribunal did not recognize that the evidence cited at footnotes 26 and 32 of her submissions were from the same report because the submissions pointed to different tabs and pages. I find it was reasonable for the Tribunal to rely on the coordinates as referenced by the applicant; after all, the reason provided by the applicant for filing revised submissions was to correct the footnotes and ensure alignment with its February 2024 hearing brief as indicated at paragraphs 14 and 16 of the decision.
27In any event, I am persuaded that this error is not likely to have led the Tribunal to a different result. This is owing to the diminished weight afforded to Dr. Shaban’s evidence because it was not contemporaneous to the sleep study OCF-18. At paragraph 59 of the decision, the Tribunal notes that “[w]hile the applicant says the sleep study was reasonable and necessary at the time it was submitted, she fails to point to contemporaneous complaints or medical opinions about sleep difficulties and this also diminishes the merit of her claim. The applicant’s submissions reference sleep in Dr. Shaban’s notes twice—both entries dated more than two years after the OCF-18 was submitted.”
28I find that Aviva, which is not binding on me, does not assist here. In Aviva, the Tribunal found it was procedurally unfair to not consider evidence that was referenced in a party’s submissions and filed with the Tribunal. Aviva is distinguishable from this case because the applicant did not file certain evidence with the Tribunal despite referencing it in her submissions. As such, the Tribunal was unable to consider it.
Rule 18.2(a) and (b): The applicant has not shown that the Tribunal violated procedural fairness by declining to change the hearing format, or by refusing to allow affidavit evidence and the cross-examination of the respondent’s experts.
29I find the applicant has not shown how the Tribunal’s decision to proceed with a written hearing as ordered by the case conference adjudicator was procedurally unfair.
30The applicant submits the Tribunal acted unfairly by deciding the hearing would proceed in writing. She says, in both her reconsideration submissions and reply, that given the complexity of the case and the sheer volume of medical documentation, an electronic hearing would have allowed her to guide the adjudicator through the evidence to have the issues fully considered. The applicant relies on Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 (“Baker”) to show that more “stringent procedural protections” were mandated in her case because the decision considered significant issues that would have a considerable impact of her life. The applicant also maintains it was unfair to “refuse her right” to file affidavit evidence and to cross-examine the respondent’s experts.
31The respondent argues that the Tribunal was not unfair about maintaining the written format of hearing because the applicant failed to seek a variance until it filed its hearing submissions some eight months after the case conference.
32I first note that the applicant did not voice case complexity or evidentiary volume as reasons to change the hearing format in her written hearing submissions, nor did she request leave to file an affidavit or cross-examine the respondent’s experts in her written hearing submissions. In my view, these are new arguments that are not subject to reconsideration because they were not voiced at first instance. In any event, the deep issue here is not about the volume or complexity of evidence produced by the applicant; it is whether the applicant met her onus to file the evidence she sought to rely on at the time of the written hearing.
33The Tribunal addressed the applicant’s request to change the hearing format at paragraphs 7 through 12 of the decision. As indicted at paragraph 9 of the decision, the Tribunal found the applicant’s request was unsupported. Her written hearing submissions on this request, which follow below, were sparse and offered no arguments for the Tribunal to consider:
At the Case Conference, the Applicant requested an oral hearing as the issue of attendant care benefits, both quantum and whether it was incurred, is in dispute. This request was denied by the Case Conference Adjudicator. The Applicant also requested to file Affidavit evidence, and this request was also denied by the Case Conference Adjudicator. The Applicant reiterates her request to have the attendant care issues (issue 1 and issue 2 below) heard orally [emphasis added].
34I find these submissions serve only to provide a brief overview of how the case conference adjudicator earlier addressed the applicant’s request for a written hearing, and to again ask that the attendant care benefit issue be hear orally. The applicant does not provide any reasons to demonstrate the merit of her request.
35Further, the applicant certainly does not reiterate, in her written hearing submissions, her request to file affidavit evidence. Similarly, witness cross-examination is not canvassed in her written hearing submissions. I find this diminishes her claim, in her reconsideration request, that the Tribunal was procedurally unfair to “refuse her right” to file affidavit evidence and to cross-examine the respondent’s experts.
36At paragraph 11 of the decision, the Tribunal declined to exercise its discretion to change the hearing format. The Tribunal applied section 5.1 of the Statutory Powers Procedure Act (“SPPA”) and Baker. The Tribunal determined the applicant had failed to demonstrate that a written hearing would not present a meaningful opportunity to have her evidence fully and fairly considered. The Tribunal also considered that it had earlier afforded the applicant the opportunity to make submissions on the hearing format at the case conference, and that, in the subsequent eight months leading up to the hearing, it had been open to her to file a motion if she sought to vary the case conference order. As such, I find the applicant has not shown why the Tribunal’s order to proceed in writing was procedurally unfair.
Rule 18.2(a) and (b): The applicant has not shown that the Tribunal violated procedural fairness or committed an error of fact or law by dismissing the applicant’s ACB claim in its entirety.
37I find the Tribunal had the jurisdiction to adjudicate the whole of the applicant’s ACB claim. The applicant has not shown how it did so in a procedurally unfair manner, nor has she shown how the Tribunal committed any errors of fact or law.
38The applicant submits that the Tribunal committed a material breach of procedural fairness by dismissing her ACB claim in its entirety when the respondent had conceded the applicant required an ACB. The applicant further submits that the Tribunal made an error of fact and law by finding she had failed to demonstrate ACB entitlement when the respondent’s section 44 assessor had determined an ACB was reasonable and necessary. She reiterates that her section 25 assessor’s Form-1 determined she required an ACB at $6,984.83 per month, and that the respondent’s section 44 assessor determined an ACB of $969.65 per month was reasonable and necessary. The applicant explains that the respondent conceded, at paragraph 11 of its written hearing submissions, that it agreed to pay all incurred attendant care expenses to a maximum of $969.65 per month as of December 10, 2020.
39The respondent argues that the applicant has not provided any evidence or case law that compels the Tribunal to determine that an applicant is, at the very least, entitled up to the monthly attendant care amount recommended in the respondent’s Form-1 if the Tribunal does not agree with the amount stated in the applicant’s Form-1.
40In reply, the applicant points to the Form-1 completed by the section 44 assessor to show the respondent had approved the recommended attendant care services, and she asserts the Tribunal did not have the jurisdiction to deny those specific benefits because they were not disputed by the parties.
41I disagree with the applicant’s position, and I find the Tribunal acted fairly and in accordance with the law and the facts of the case. The issue, as agreed by the parties at the case conference, was whether the applicant was entitled to ACBs in the monthly amount of $6,984.83 (despite a maximum entitlement of $6,000.00 monthly per section 19 of the Schedule). I find this quantum is the entirety of the applicant’s Form-1 with no exclusions for services where the sections 25 and 44 assessors agreed. I also find there was no discussion about excluding this “agreed to” amount in the parties’ written hearing submissions.
42For example, the Tribunal notes, at paragraph 28 of the decision, that both the section 25 and section 44 assessors agreed on the applicant’s need for coordination of care. In that same paragraph, the Tribunal notes that while both assessors also agreed that basic supervisory care was needed seven days per week, the section 25 assessor recommended double the amount of time as the section 44 assessor. In my view, had the parties intended to dispute only the contrasting aspects of the two assessments, and thereby limit the Tribunal’s jurisdiction accordingly, they would have removed the approved amount from the total being sought by the applicant on her Form-1.
CONCLUSION & ORDER
43The applicant’s reconsideration request is dismissed.
Michael Beauchesne
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: July 16, 2025