RECONSIDERATION DECISION
Before:
E. Louise Logan, Vice-Chair
Licence Appeal Tribunal File Number:
24-009477/AABS
Case Name:
Kanimoli Emmanuel v. TD General Insurance Company
Written Submissions by:
For the Applicant:
Elias Toby, Counsel
For the Respondent:
Ashley Dunkley, Counsel
OVERVIEW
1On August 6, 2025, the applicant requested reconsideration of the Tribunal’s decision dated July 18, 2025 (“decision”).
2In the decision, the Tribunal determined that the applicant is barred from proceeding to a hearing on her claim for an income replacement benefit (IRB) because she did not dispute her denial within the two-year limitation period in section 56 of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the Schedule). The respondent was granted $1,000.00 in costs.
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 is seeking reconsideration pursuant to Rule 18.2(b). She argues that the Tribunal erred in law in its interpretation of the Tolling Agreement dated March 1, 2024. She also submits the Tribunal erred by not considering the relevant statutory provisions and case law, specifically section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c.12 Sched. G, and Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492. Finally, she argues the Tribunal erred in its assessment of costs against her.
5The respondent seeks to have the reconsideration request dismissed, submitting that the applicant is attempting to relitigate the issues with arguments and evidence that were not part of the initial hearing.
6The applicant is seeking an order that she is not statute barred from proceeding with her application for an IRB, and that the issue of entitlement for IRBs be reheard by a new adjudicator. The applicant does not identify a specific remedy for the costs issue in her reconsideration submissions.
RESULT
7The applicant’s request for reconsideration is denied.
ANALYSIS
8At the outset, I note that this reconsideration request arises out of the Tribunal’s consideration of three applications and two Tolling Agreements. Therefore, a brief chronology is helpful in understanding the issues before me.
9On February 26, 2021, the applicant filed an initial application which included the issue of entitlement to IRB.
10The parties participated in a case conference on August 10, 2021.
11The applicant filed a second application with the Tribunal on August 11, 2023. The second application did not include a claim for IRB.
12On August 30, 2023, the parties entered into a Tolling Agreement for the issues in dispute in the first application. The applicant withdrew her first application and she added the issues from that application, including IRB, to the second application.
13On March 1, 2024, the parties entered into a second Tolling Agreement in which the respondent agreed that it would allow the issues from the second application to be re-filed in a third application. Also on March 1, 2024, the respondent sent the applicant an email setting out the five issues that were being tolled in the second Tolling Agreement. The list of tolled issues in the email did not include IRB.
14The applicant filed a third application on July 30, 2024. It is the third application that was the subject of the decision. The issues identified were a determination of catastrophic impairment, attendant care benefits, medical benefits, expenses, interest and a special award. The application did not include entitlement to IRB.
15A case conference was held on November 27, 2024 for the third application. The November 28, 2024 Case Conference Report and Order (“CCRO”) includes the issue of the applicant’s entitlement to IRB. It also includes the preliminary issue of whether the applicant’s claim is statute-barred pursuant to section 56 of the Schedule.
16At the hearing, the applicant argued that the second Tolling Agreement allowed all the issues from the second application, including IRB, to be included in the third application. The respondent disagreed, submitting that it never agreed to toll the IRB issue in the second Tolling Agreement.
17It is noted in paragraph 36 of the decision that on the second day of the hearing, the applicant withdrew her application. The decision indicates that the only remaining issue in dispute was the preliminary issue. The decision also indicates that the respondent requested costs at the hearing.
18In the decision, the Tribunal determined that entitlement to IRB was not covered by the second Tolling Agreement. At paragraphs 20 to 22, the Tribunal reasoned as follows:
20I agree with the respondent. There is no evidence showing that it agreed to toll the IRB issue. The email dated March 1, 2024 lists the five issues the respondent agrees to toll. The IRB denial is not one of those issues. This is clear evidence that the respondent did not agree to toll the IRB.
21I also note that the IRB denial is not listed as an issue in dispute in the application for this current proceeding. This is consistent with the email of March 1, 2024 and shows that the parties did not agree to toll the IRB.
22I give little weight to the applicant’s explanation that the IRB denial is absent from the application because issues can be added at the case conference. The Tribunal receives submissions at a case conference when deciding whether to add an issue. If the Tribunal decides not to add the issue, then a party may file a motion which could result in a further denial of the request to add an issue. Consequently, I do not accept the applicant’s explanation for why she waited until the case conference to add the issue of the IRB. This is because issues are not added in a perfunctory manner at case conferences as suggested by the applicant. In my view, it is more likely that the applicant agreed to the respondent’s terms of just tolling five issues from 23-009476/AABS, and for this reason, did not include the IRB in the application.
19As noted above, the Tribunal determined the applicant was barred from proceeding with her claim for IRB because she did not dispute the denial within the two-year limitation period. In doing so, it found that the applicant did not make any submissions on the Tribunal exercising its discretion under section 7 of the Licence Appeal Tribunal Act. The Tribunal also determined the applicant was liable for $1,000.00 in costs.
Rule 18.2(b) – Error of fact or law
i. Scope of the Second Tolling Agreement
20I find that the applicant has not established grounds for reconsideration pursuant to Rule 18.2(b), with respect to the scope of the March 1, 2024 Tolling Agreement.
21The 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.
22With respect to the preliminary issue, the applicant submits that:
i. The Tribunal erred in law because it did not interpret the March 1, 2024 Tolling Agreement in accordance with relevant case law and contract law.
ii. The Tribunal failed to assess the evidence about combining the issues in the first and second applications, which formed the basis for the Tolling Agreement. It erroneously assumed the second application only contained the issues in the second (August 11, 2023) application and it ignored the issues in the first application.
iii. The Tribunal further erred when it relied on an email exchange between counsel to support its interpretation of the Tolling Agreement. The applicant submits the Tolling Agreement is a written contract which contained all the terms of the agreement between the parties. The Tolling Agreement confirmed all the issues in the second application formed part of the agreement.
iv. The Tribunal’s interpretation of the agreement violates the parol evidence rule, which prohibits the use of external evidence to vary, add to, or contradict the terms of a clear and unambiguous written agreement. Relying on Manulife Bank of Canada v. Conlin, 1996 CanLII 182 (SCC), [1996] 3 SCR 415, the applicant submits the Tolling Agreement is unambiguous and reflects the terms negotiated by the parties and, therefore, the Tribunal’s interpretation and reliance on extrinsic evidence was an error of law.
v. The applicant submits that, when the Tolling Agreements were executed, the respondent was represented by different counsel. The applicant argues that the current counsel is seemingly unaware of the series of events that led to the third Tribunal application. The applicant submits that the “Tolling Agreements confirm that all disputed issues, including IRB, are valid in ongoing current application”.
23The respondent submits that:
i. The Tribunal did not make an error and the applicant is attempting to relitigate the issues in dispute at the initial hearing. The applicant did not raise the parol evidence rule or make submissions on the application of section 7 during the hearing. The applicant is raising new arguments and evidence on reconsideration.
ii. More specifically, the respondent submits that the parol evidence rule is a rule used mainly in contractual and commercial litigation. It submits that, contrary to the applicant’s submissions, the extrinsic evidence was not used to vary the terms of the Tolling Agreement, but it was used to demonstrate the “meeting of the minds” between the parties when the agreement was executed.
iii. The decision in Manulife does not mention the parol evidence rule, is distinguishable, and not related to the facts at hand. Manulife is about a mortgage renewal agreement wherein the renewed mortgage agreement was only signed by the mortgagor, following which the mortgage defaulted. The question was whether the mortgage was secured when the terms were set, without notice to the mortgagee.
iv. While it argues that the applicant is making a new argument on reconsideration, the respondent also submits that the parol evidence rule allows for extrinsic evidence to be used when a party believe there to be an error. In this case, the applicant believes that the Tolling Agreement included IRBs, whereas the respondent does not. The use of the March 1, 2024 email was used to show the meeting of the minds when the parties entered into the Tolling Agreement. As such, the Tribunal did not make an error of law by considering the March 1, 2024 email.
v. The respondent further submits that even if it was the applicant’s intention to raise the IRB in the third application, it was not included as an issue in dispute in that application. It also submits that the applicant’s case conference summary did not address IRB, which was relied on by the Tribunal at paragraph 22 of the decision.
24In reply, the applicant submits that the respondent’s reconsideration submissions omit the sequence of events that occurred in connection with the execution of the first Tolling Agreement. She submits prior counsel agreed to consolidate the issues in the first and second applications through the August 30, 2023 Tolling Agreement, which preserved the limitation period for all issues in dispute, including the IRB. She submits that was based on the mutual understanding that the respondent would not raise limitation-related objections with respect to these issues. The applicant further submits that the respondent is seeking to contradict this previous agreement and is improperly relying on an email exchange of March 1, 2024 as the basis for interpreting the second Tolling Agreement. She also submits that the applicant addressed the IRB in email correspondence with respondent’s counsel on August 29, 2024 and October 1, 2024 and that the respondent selectively replied and ignored references to the IRB in this correspondence. The applicant submits that she reasonably believed the respondent did not intend to raise a limitation issue with respect to the IRB, and that it was only during the November 2024 case conference that, for the first time, the respondent took the position that it would be making a limitation argument with respect to the IRB.
25I find that the applicant has not established that the Tribunal erred when it considered the covering email in its interpretation of the scope of the March 1, 2024 Tolling Agreement. Further, I find that even if the Tribunal did err, it is not an error that would likely have changed the outcome of the decision.
26First, I do not agree that the Tribunal failed to assess the evidence about combining the issues in the first and second applications. I also do not agree that the Tribunal erroneously assumed the second application only contained the issues in the August 11, 2023 application and ignored the issues in the first application. It is clear from the decision that the Tribunal was aware that the issues from the first application had been added to the second application. Specifically, at paragraphs 11 and 12, the Tribunal states:
11In any event, a tolling agreement was entered into on August 30, 2023. The applicant withdrew her initial application and added the issues, including the IRB issue, from the first application to a new LAT application under 23-009476/AABS. The respondent agreed not to raise any limitations issue in regard to adding issues from the first application to 23-009476/AABS.
12The Tribunal Registrar sent an email to the applicant’s legal assistant on August 31, 2023 confirming that the “requested issues” were added to 23-009476/AABS.
27Second, I agree with the respondent that the applicant is making new arguments with respect to the parol evidence rule on reconsideration. It is well established that reconsideration is not an opportunity to make new arguments. Parties are expected to put their best foot forward at first instance. In this case, the parties participated in a videoconference hearing where they had the opportunity to make oral submissions. There is no suggestion in the applicant’s reconsideration submissions that the Tribunal did not address her arguments from the hearing in its decision. Rather, she argues, as set out above, that the Tribunal made an error in its interpretation of the Tolling Agreement, in light of the parol evidence rule.
28While the applicant submits on reply that “neither the Respondent nor the Applicant is in position to comment on the submissions made during the subject LAT Hearing, as the transcripts from that hearing have not been produced to the parties”, at no point does the applicant submit that she made arguments with respect to the parol evidence rule at the initial hearing. Had she made these arguments during the hearing, I find that it is more likely than not that they would have been addressed in the decision, or, at least, that the applicant would have stated in her reconsideration submissions that the Tribunal had not addressed this argument in the decision.
29Instead, the applicant’s submissions are silent on whether she made arguments on the parol evidence rule at the initial hearing. She indicates that, in the absence of transcripts, the applicant and the respondent are not in a position to comment on whether such arguments were made at the initial hearing. I do not see why this would be the case. The parties both participated in the hearing and they both know the arguments that were made. The respondent submits that the applicant is making new arguments on reconsideration. The applicant does not indicate whether or not she is making new arguments. The applicant did not obtain a transcript of the hearing to establish that she made the arguments at the initial hearing. Since it is the applicant’s onus to establish grounds for reconsideration, I find her silence on whether these arguments were made at the initial hearing to be significant, and indicative that they are new arguments.
30Third, I find that the applicant’s submissions about the intention of the parties with respect to the first and second Tolling Agreements, the August and October 2024 email exchange between counsel for the parties, the understanding of the respondent’s new counsel, and the fact the respondent first raised the issue of a limitation defence at the case conference do not establish grounds for reconsideration. Rather than identifying an error, these submissions are an attempt to relitigate the issues in dispute at the initial hearing.
31Further, even if I found that the Tribunal erred and the March 1, 2024 Tolling Agreement included IRB, I find the applicant has not shown that the error would be one that would have likely changed the outcome of the decision. I make this finding because the applicant has not shown that she met the terms of the March 1, 2024 Tolling Agreement, which provides as follows:
IN CONSIDERATION of the mutual agreement hereinafter set forth, the parties hereby acknowledge that Kanimoli Emmanuel may bring a claim for all benefits listed in dispute in Tribunal File Number: 23-009476/AABS, against TD General Insurance Company to the Licensing Appeal Tribunal without any limitation period argument or limitation defence raised by TD General Insurance Company provided Kanimoli Emmanuel does by August 1, 2024.
32Thus, even if the March 1, 2024 Tolling Agreement included all the issues in dispute in the second application, the evidence shows that the applicant did not “bring a claim” for IRB by the August 1, 2024 Tolling Agreement deadline. As noted in the decision, and not disputed by the parties, the third application for benefits dated July 30, 2024 did not include the issue of IRB. Entitlement to IRB was not added as an issue in dispute in this third application until the case conference of November 27, 2024, as reflected in the CCRO of November 28, 2024. This was almost four months after the August 1, 2024 deadline in the Tolling Agreement.
33For these reasons, I find that the applicant has not established grounds for reconsideration pursuant to Rule 18.2(b) with respect to the preliminary issue and the Tolling Agreement.
ii. Exercise of discretion under Section 7
34I find that the applicant has not established grounds for reconsideration, pursuant to Rule 18.2(b) with respect to section 7 of the Licence Appeal Tribunal Act.
35The applicant argues that the Tribunal erred in law when it failed to consider whether to exercise its discretion under section 7 and the related case law. She also submits that the Tribunal further erred when it stated that section 7 relief could not be considered in the absence of submissions from the applicant. In her reconsideration submissions, the applicant sets out the Manuel factors for granting an extension of time, but she does not indicate the grounds for granting an extension in this case.
36The respondent submits that the applicant did not make submission on section 7 at the initial hearing and is making new arguments on reconsideration. It further submits that there is nothing in section 7 that states it is a “strict imposition” on the Tribunal. The respondent submits that the applicant bore the onus to establish reasonable grounds, relying on Manuel in which the Divisional Court stated (at para 17):
As the Court of Appeal held in Frey v. Macdonald, page 2, the general rule is that time for an appeal is not extended unless the appellant has shown that these factors apply to support an extension. The Appellant bears the onus of establishing the necessary factual foundations.
37The respondent also points to the reconsideration decision in Iqbal v. Gore Mutual Insurance, 2021 CanLII 64248 (ON LAT) where, in the context of section 7, the Tribunal noted that the reconsideration process is not an avenue for advancing new arguments that a party could have made during the initial hearing.
38I find that the applicant has not established that the Tribunal erred in the decision with respect to section 7 of the Licence Appeal Tribunal Act.
39At paragraph 23, the decision notes that the applicant did not make any submissions on the Tribunal exercising its discretion under section 7. On reconsideration, the applicant submits that the Tribunal erred in not considering section 7 and Manuel. I do not agree. I find, as set out in Manuel, that the onus was on the applicant to establish that there were reasonable grounds upon which to grant an extension. The applicant has not indicated in her reconsideration submissions why the general rule in Manuel does not apply. Therefore, I find that it does. The applicant did not make submissions with respect to establishing section 7 at the initial hearing, and therefore she did not meet her onus.
40For these reasons, I find that the applicant has not established grounds for reconsideration pursuant to Rule 18.2(b), with respect to section 7 of the Licence Appeal Tribunal Act.
iii. Costs
41I find that the applicant has not established grounds for reconsideration pursuant to Rule 18.2(b) with respect to costs.
42The applicant submits that the Tribunal erred in law by failing to apply the “proper Rule 19 criteria” in making its order for costs. She submits the decision lacks a proper evidentiary basis and legal analysis under the “LAT Rules of Practice, particularly Rule 19.1 through Rule 19.5, and fails to refer to the relevant statutory or case law framework governing costs awards”. She submits that no findings were made that the applicant acted unreasonably, frivolously, vexatiously, or in bad faith, and the order is therefore contrary to the Tribunal’s rules and established jurisprudence.
43The respondent disagrees and indicates that at paragraphs 25 to 44, the Tribunal explains its reasoning and the basis for awarding costs. It submits the Tribunal made findings about the applicant’s unreasonable conduct at paragraphs 37 and 38 of the decision. It argues the applicant has not given any clear and specific evidence of an error of law that would have resulted in a different outcome.
44I find that the applicant has not established an error of fact or law in the Tribunal’s decision related to costs. Upon review, the Tribunal provided extensive reasons for granting costs against the applicant. It cited Rule 19 and it set out the positions of the parties. It considered whether the applicant’s conduct met the threshold for costs, and it found that it did.
45Specifically, at paragraph 37, the Tribunal found the applicant’s conduct was unreasonable because she unnecessarily expended the time and resources of the respondent and the Tribunal. At paragraph 38, it found the applicant acted in an unreasonable manner because she did not make reasonable efforts to ensure the attendance of her expert witnesses, and also because she unnecessarily expended hearing time before withdrawing her application. The Tribunal then considered the amount of costs, and in disagreeing with the respondent’s calculation, found the applicant was liable to pay a lesser amount, namely $1,000.00.
46While the applicant may not agree with the decision, this is not grounds for reconsideration. The onus is on the applicant to establish grounds for reconsideration, and I find that her submissions do not identify an error of fact or law in the decision.
47For these reasons, I find that the applicant has not established grounds for reconsideration pursuant to Rule 18.2(b), with respect to costs.
CONCLUSION & ORDER
48The applicant’s request for reconsideration is denied.
E. Louise Logan
Vice-Chair
Released: November 19, 2025