Omoruyi v. TD General Insurance Company, 2025 CanLII 75762

RECONSIDERATION DECISION

Before: Bernard Trottier, Adjudicator

Licence Appeal Tribunal File Number: 24-005585/AABS

Case Name: Josephine O Omoruyi v. TD General Insurance Company

Written Submissions by: For the Applicant: Sam C. Pitaro, Counsel For the Respondent: Karen Klaiman, Counsel

OVERVIEW

1On May 9, 2025, the applicant requested reconsideration of the Tribunal’s decision dated April 18, 2025 (“decision”).

[2] Following a one-day videoconference hearing, I issued the decision in which, among other things, I found that: a) The applicant was entitled to income replacement benefits (“IRBs”) from October 20, 2023 to the date of the insurer’s examination (“IE”) physiatry assessment on May 2, 2024. b) Although the applicant was entitled to receive IRBs, the quantum of IRBs is nil.

[3] The grounds for a request for reconsideration are found 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.

4The applicant submits that I committed a material breach of procedural fairness and/or made errors of fact or law such that I would have likely reached a different decision had the errors not been made. The applicant seeks an order finding that she is entitled to IRBs in the amount of $400.00 per week from October 20, 2023 to date and ongoing, subject to the respondent’s right to rely on its stoppage of IRBs and subject to the applicant’s right to dispute this stoppage by filing a further application with the Tribunal. In addition, she seeks an order for interest on IRBs owed and an award under s. 10 of Reg. 664.

5The applicant submits that I breached procedural fairness under Rule 18.2(a) in admitting evidence of the IE assessors, and in relying upon that evidence to determine an end date for eligibility for IRBs. According to the applicant, only quantum was in dispute.

6In addition, the applicant claims that I made errors of law under Rule 18.2(b), such that I likely would have reached a different result had the errors not been made. The applicant claims that I erred in finding that she was self-employed and that I did not properly interpret the Schedule in quantifying the quantum of IRBs.

7The respondent submits that my findings on medical entitlement are not material and have no bearing on the quantum of IRBs in dispute.

8The respondent submits further that a reconsideration of my findings on the quantum of IRBs should be dismissed.

RESULT

9I vary my decision under Rule 18.2(a) to vacate all reference to the applicant’s medical entitlement to IRBs.

10I dismiss the applicant’s request for reconsideration of my findings related to the quantum of IRBs.

PROCEDURAL ISSUES

11The applicant submits, in her reply submissions, that the respondent’s written submissions are 14 pages, in breach of the 10-page limit ordered in the Tribunal’s Reconsideration Order of April 23, 2025 (the “Reconsideration Order”). The applicant requests that pages 11 to 14 of the respondent’s submissions be disregarded.

12Rule 18.1 stipulates that reconsideration requests must not exceed 10 double-spaced pages, exclusive of evidence and authorities. The Reconsideration Order stipulates that respondent’s reconsideration submissions shall not exceed the same 10 double-spaced pages.

13The applicant’s submissions are 10 pages long, but her submissions contain two pages of single-spaced arguments. The respondent’s submissions are double-spaced. The respondent does not have the right to a sur-reply, and the respondent did not make submissions regarding the applicant’s single-spaced submissions.

14It would be procedurally unfair for me to disallow, because of page length, part of the respondent’s reconsiderations submissions, and to allow, despite a breach of line-spacing, the applicant’s full reconsideration submissions. Given that the applicant breached the stipulations of Rule 18.1 and the respondent breached the stipulations of the Reconsideration Order, to roughly the same degree, I will allow both submissions at their full length.

ANALYSIS

Breach of procedural fairness under Rule 18.2(a): Evidence of IE assessors

13The applicant submits that I breached procedural fairness under Rule 18.2(a) in admitting evidence of the IE assessors, and in relying upon that evidence to determine an end date for eligibility for IRBs. According to the applicant, there was no intention of addressing medical entitlement to IRBs at the hearing.

14The applicant also submits that the respondent did not comply with the identification and disclosure requirements for expert witnesses under Rule 10.2.

15The applicant submits further that she raised objections at the hearing when she first learned of the respondent’s intention to rely on evidence of the IE assessors to argue against medical entitlement to IRBs.

16The applicant seeks an order limiting the hearing to determine the quantum of IRBs only, and to not consider the medical evidence of the IE assessors.

17This matter was heard before me in a one-day videoconference hearing on January 22, 2025.

18According to Rule 10.2, a party who intends to rely on the evidence of expert witnesses shall provide the other party with signed Acknowledgement of Expert Duty forms, as well as the experts’ curricula vitae, at least 45 days before the start of the hearing. Accordingly, for this hearing, this information was to be provided to the applicant no later than December 8, 2024. Under Rule 9.3, if a party fails to comply with Rule 10.2, the Tribunal may exclude the expert witness’s testimony or evidence.

19The applicant submits that the respondent provided Acknowledgement of Expert Duty forms for Dr. Adam Kassam, physiatrist, and Dr. Nicole Azizli, psychologist, along with their CVs and IE reports, on December 31, 2024 – only 22 days before the hearing.

[20] At the hearing, the applicant did not raise the procedural issue of the late-filed Acknowledgement of Expert Duty forms, nor did she raise the procedural issue that the IE reports were provided to the applicant after the deadlines for production of evidence detailed in the Case Conference Report and Order of September 5, 2025 (the “CCRO”). At or before the hearing, the parties did not raise that the main issue in dispute, identified in the CCRO, asked whether the applicant was entitled to IRBs, and that it did not limit the issue to quantum only. Specifically, the CCRO indicated that the issue in dispute was:

1. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from October 20, 2023 to date and ongoing?

21The applicant’s claim that the only issue in dispute was the quantum of IRB was not reflected in the CCRO. As a result, it was not a breach of procedural fairness for me to make a determination on both the entitlement to and quantum of IRBs.

22The applicant submits that she did not raise the breach of Rule 10.2 at the hearing because she did not intend to argue for medical entitlement to IRBs at the hearing. The applicant submits that, based on discussions with the respondent at the case conference of September 4, 2024, the parties agreed that the only dispute was over the quantum of IRBs. The applicant submits that, for this reason, she agreed to a one-day hearing and did not submit any medical evidence in her hearing brief.

23In its reconsideration submissions, the respondent does not dispute that it breached Rule 10.2 and that it breached the production deadlines in the CCRO. Also, it does not argue that the IE reports should be allowed into evidence. Rather, the respondent submits that the medical evidence is not material in addressing the quantum of IRBs in dispute. In its submissions, the respondent took no position on whether the findings related to medical entitlement should be vacated.

24In my decision, I addressed the issue of medical entitlement to IRBs because the respondent made submissions at the hearing that the applicant was not entitled to IRBs for medical reasons, based on the “uncontroverted” reports of the IE assessors. The applicant argued at the hearing that there was no dispute over medical entitlement, submitting that there was an agreement at the case conference that the hearing would address quantum only. The respondent disagreed that there was such an agreement. I did not have any evidence before me in the parties’ document briefs that there was such an agreement.

25A reconsideration involves a review of findings and procedural orders that were made in the hearing. In this case, I did not make any finding on the procedural issues now being raised by the applicant, since they were not raised at that time. Under Rule 18.2(a), the Tribunal may vary its decision if it committed a breach of procedural fairness. In this case, I find that the late filings of the IE reports and the Acknowledgement of Expert Duty forms are material breaches of procedural fairness that warrant reconsideration under Rule 18.2(a). I am satisfied with the applicant’s argument that she did not raise these procedural issues because there had been an agreement between the parties to not argue medical entitlement to IRBs.

26For the reasons above, I agree with the applicant to vary my decision, under Rule 18.2(a), and to vacate all findings related to the applicant’s medical entitlement to IRBs.

No errors of law under Rule 18.2(b)

[27] The applicant submits that I made the following errors under Rule 18.2(b), such that I likely would have reached a different result had the errors not been made: a) I concluded that the applicant was self-employed at the time of the accident, as defined in the Schedule, and that I concluded that certain facts surrounding her employment are not meaningful in determining whether she was “employed” or “self-employed”. b) I concluded that the Schedule should be interpreted narrowly such that the applicant’s prior year’s employment earnings were excluded in quantifying her IRBs, and that, because of that exclusion, the quantum is nil.

28The respondent submits that the applicant has not demonstrated that I made errors of fact or law such that I would have reached a different decision. The respondent seeks that the request for reconsideration of the findings regarding quantum of IRBs be dismissed.

“Employed” vs. “self-employed” as defined by the Schedule

[29] The applicant submits that I made errors in my interpretation of both the Schedule and case law in determining that the applicant was self-employed and not employed: a) The “factual indicia” surrounding the applicant’s employment should be considered along with the definitions of employment and self-employment in the Schedule; b) The Canada Revenue Agency (“CRA”) did not view the applicant as self-employed; c) The applicant believed she was “employed”; and d) Although Sugicare Staffing Corp. (“Sugicare”) identified its payments to the applicant as “self-employed commissions”, its characterization of its relationship with the applicant is false and misleading.

30The respondent submits that the evidence, case law and the definitions of “employed” and “self-employed” in the Schedule, presented at the hearing, all indicate that the applicant was solely self-employed at the time of the accident.

31I find that the applicant’s submissions for reconsideration do not point to any errors, but instead propose a re-weighing of the evidence and case law that was fully available, and which I considered in its entirety at the time of the hearing. It was open to me to arrive at the conclusions I did on the face of the evidence and case law submitted. A reconsideration is not an opportunity for a rehearing of the case presented at first instance.

32In particular, as I indicated in my decision at paragraphs [31] to [34], I found that the applicant’s argument for “factual indicia” regarding the individual’s employment status, as described in the Financial Services Commission of Ontario case Ahmad Farid v Aviva Canada Inc. (2016 ONFSCDRS 343) (“Farid”), was unhelpful. The case predates the 2016 version of the Schedule applicable here, where definitions for “employed” and “self-employed” were inserted by the legislature, which the previous version of the Schedule did not contain.

33I found further in my decision, at paragraph [35], that the CRA treated the applicant as “self-employed” based on her income tax filings and the applicant did not direct me to any correspondence from the CRA that disputed that she was self-employed in 2023.

34Also, as I stated in paragraph [36] of my decision, I did not find that the applicant’s subjective belief that she was employed persuasive based on the evidence before me. In the hearing, the applicant did not direct me to any binding authority to indicate that this subjective belief should carry weight in my analysis.

35Lastly, I found in my decision, at paragraph [37] that Sugicare treated the applicant as self-employed from an accounting standpoint. Specifically, I found that the factual indicia as described in Farid did not override the definitions of “employed” and “self-employed” in the 2016 version of the Schedule.

36Once again, mere disagreement with the weighing of the evidence at first instance is not sufficient to engage the criteria under Rule 18.2(b). Rather, the requesting party must show that an error was made, and that this error would likely have impacted the outcome. The applicant has not done so.

37For these reasons, I dismiss the applicant’s request for reconsideration on the basis of an error in law on the definition of “employed” and “self-employed”.

Quantum of IRBs even if the applicant is found to be self-employed

38The applicant submits that I made errors in my interpretation of the Schedule in determining that she was not entitled to apply her employment income from the previous taxation year even if I found her to be self-employed as defined by the Schedule. The applicant submits that, even if she were found to be self-employed, s. 4(3) of the Schedule does not say that employment income from the previous taxation year should be excluded in calculating her quantum of IRBs.

39The applicant submits that I misapplied the case law that was presented by both parties in my finding that a self-employed person was not entitled to utilize their employment income from the previous taxation year as a basis for calculating the quantum of IRBs.

40The applicant submits that there is an absurd gap in s. 4(3) the Schedule for individuals who were solely self-employed at the time of the accident, and she argues that the remedial nature of the Schedule requires that all income earned in the last taxation year be included in calculating the quantum of IRBs.

41The applicant argues that the case law relied upon by the respondent involved individuals who were solely self-employed at the time of the accident, and none of them had employment income in the 52 weeks before the accident. She argues that those cases do not support the proposition that employment income earned in the previous taxation year should be excluded in the calculation of quantum of IRBs.

42The applicant argues further that I erred in stating that she is relying on s. 4(2)(3) of the Schedule to argue that the applicant may include her 2022 employment income to calculate the quantum of IRBs. In paragraphs [43] and [45] of my decision, I indicated that the applicant referenced s. 4(2)(3) as one avenue for including her 2002 employment income. Subsequently in my decision, I found that Waterloo Insurance v Switzer, 2023 ONSC 604 (Div. Ct) (“Waterloo”) directs, as a binding decision of the Court, that a person must have been both self-employed and employed at the time of the accident to have the option of designating their employment income in the previous year as the basis for their IRB calculation. Therefore, I found that s. 4(2)(3) does not apply. The applicant has not convinced me that my findings on s. 4(2)(3) are an error of law that warrants reconsideration.

43The applicant submits further that I made an error in law in ignoring that the adjudicator in V.H. v Aviva Insurance Company of Canada, 2019 CanLII 130385 (ON LAT) (“V.H.”) found that – because s. (4)3 applied – the “applicant’s gross employment income should be calculated according to the income claimed in the last completed taxation year.”

44The respondent argues that V.H. affirms that the calculation of IRBs for a self-employed individual under s. 4(3) must rely on the person’s income from self-employment for the last taxation year, rather than on the 52-week period prior to the accident.

45I disagree with the applicant’s statement that the adjudicator in V.H. found that a person subject to s. 4(3) may include employment income earned in the previous taxation year. In V.H., the adjudicator found the applicant was subject to s. 4(3) and that the IRB quantum should be calculated based on the applicant’s employment (meaning self-employment) income for the last completed taxation year. This finding was meant to distinguish that an applicant subject to s. 4(3) could not calculate quantum based on the 52-week period prior to the accident. The decision in V.H. further upholds that any qualifications for income under s. 4(2), i.e., for employed persons, are only applicable when the self-employed person was also employed or recently employed in the time preceding the accident.

46As I stated in my decision at paragraph [49], the adjudicator in V.H. found that the applicant was solely self-employed at the time of the accident, and, therefore, the applicant’s IRB calculation was based on the most recent fiscal year of self-employment, per s. 4(3).

47The applicant also submits that I erred in law by utilizing a narrow interpretation of the Schedule for the purpose of quantifying her IRBs. I disagree. As I indicated in my decision, the Court’s decision in Waterloo is binding on me and directs my interpretation that a self-employed person must meet the employment requirements of s. 5(1)(1) if they are to receive IRBs under s. 4(2).

48Lastly, regarding the applicant’s claim of an absurd gap in s. 4(3) of the Schedule, the applicant did not provide me with any authority that directs me to consider all income earned in the last taxation year in calculating the quantum of IRBs. A party requesting a reconsideration of a decision under Rule 18.2(b) must show that an error in law was made, and that this error would likely have impacted the outcome. The applicant has not done so.

49I find that the applicant’s submissions for reconsideration do not point to any errors, but instead propose a re-weighing of the evidence and case law that was available and considered in its entirety at the time of the hearing. I find that the applicant has not met the threshold of identifying a specific error that likely would have led me to reach a different result.

50For these reasons, I dismiss the applicant’s request for reconsideration of my findings on the quantum of IRBs, pursuant to Rule 18.2(b). Further, as my finding that the quantum of IRBs remains nil, the applicant’s request for reconsideration of an award is also dismissed, along with her request for interest.

CONCLUSION & ORDER

[51] I vary my decision under Rule 18.2(a) to vacate all reference to the applicant’s medical entitlement to IRBs. Specifically: a) Paragraph [8] shall be varied to read “two parts” instead of “three parts” and paragraph [8]1 shall be vacated. b) The following paragraphs will be vacated: i. Para. [3]1; ii. Paras. [9] to [23]; iii. Para. [62]1; and iv. Para. [65]1.

52I dismiss the applicant’s request for reconsideration of my findings related to the quantum of IRBs.

53I dismiss the applicant’s request for reconsideration of an award under s. 10 of Reg. 664, and for reconsideration of interest.

Bernard Trottier Adjudicator Tribunals Ontario – Licence Appeal Tribunal