Reconsideration Decision
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 23-006988/AABS
Case Name: Margaret Kochel v. Allstate Insurance Company of Canada
Written Submissions by:
For the Applicant: Lucy Lee, Counsel
For the Respondent: Yalda Aziz, Counsel
OVERVIEW
1Stemming from an accident on August 16, 2022, and a request for benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”), the parties participated in a written hearing.
2A decision was released on March 24, 2025 (“initial decision”). The adjudicator found the applicant remained subject to the Minor Injury Guideline (“MIG”). As such, he determined that it was not necessary to consider whether the three treatment plans in dispute were reasonable and necessary. He also found the applicant was not entitled to an award or interest.
3On April 14, 2025, the applicant filed a request for reconsideration.
4The Tribunal released its reconsideration decision on June 6, 2025, dismissing the request (“reconsideration decision”). Briefly, the adjudicator found at paragraph 6 that the applicant had “not submitted any submissions in this matter”.
5On June 23, 2025, I wrote to the parties to advise them that, under Rule 18.5 of the Licence Appeal Tribunal Rules, 2023 (“Rules”), the Tribunal was initiating a review of the reconsideration decision. Specifically, I noted the following:
Although properly filed, the applicant's reconsideration submissions were not before the adjudicator when the reconsideration decision was made. Accordingly, pursuant to Rule 18.5, the Tribunal is exercising its discretion to reconsider this reconsideration decision on its own initiative.
This Rule 18.5 review will focus on whether the reconsideration decision… should be cancelled. It will also focus on whether there should be a new hearing on the merits of the applicant’s request for reconsideration based on the parties’ previously filed reconsideration submissions…
6The parties were given the opportunity to make submissions about this review. On June 30, 2025, the applicant wrote to the Tribunal stating that she “will be relying on our submissions previously filed” with her reconsideration request. The respondent did not provide any submissions in response to the Tribunal’s letter.
RESULT
7The reconsideration initiated under Rule 18.5 is granted.
8The reconsideration decision is cancelled, pursuant to Rule 18.4.
9The applicant’s request for reconsideration (filed April 14, 2025) is dismissed.
ANALYSIS
10The grounds for a request for reconsideration are found in 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.
Rule 18.5 – Own Initiative Reconsideration
11I am satisfied that the Tribunal committed a material breach of procedural fairness in rendering the reconsideration decision, pursuant to Rule 18.2(a).
12As noted in the Tribunal’s letter: “Although properly filed, the applicant's reconsideration submissions were not before the adjudicator when the reconsideration decision was made.” By failing to consider submissions that were filed in accordance with the Tribunal’s filing requirements, I find the adjudicator did not accord the applicant with a procedurally fair hearing on the merits of her reconsideration request. Parties have the right to have their matters decided based on the arguments they present to the Tribunal. This did not happen in this case. As such, I find the Tribunal materially breached the applicant’s right to procedural fairness in rendering the reconsideration decision.
13I then find the most appropriate remedy to address this breach under Rule 18.4 is to cancel the reconsideration decision. Further, as the applicant has stated that she continues to rely on her initial submissions, I find the most efficient means for addressing her request for reconsideration is to consider the request as part of this present decision.
Rehearing the Applicant’s Request for Reconsideration
14For the following reasons, I find the applicant has not established any criteria for reconsideration under Rule 18.2. As such, her request for reconsideration is dismissed.
15The 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.
16The applicant relies on Rule 18.2(a) and Rule 18.2(b) to support her request. She is seeking an order to vary the initial decision to find she is removed from the MIG and entitled to the treatment plans. In the alternative, she asks for a rehearing.
17The respondent seeks to have the request dismissed.
Rule 18.2(a) – Procedural Fairness
18The applicant argues that the adjudicator breached her right to procedural fairness by admitting insurer’s examination (“IE”) reports into the written hearing without considering “any of the procedural issues raised… in her Reply submissions.” Specifically, she alleges that the adjudicator did not consider her concerns about how the respondent first noted its intention to rely on these reports in its submissions, as well as how the IE notices did not indicate that they “would be used in the written hearing for MIG.” Further, in response to the adjudicator’s reference to a potential adjournment, the applicant submits that an adjournment would not have been a suitable remedy for this alleged breach. In effect, it would have rewarded the respondent for not following the Tribunal’s processes, all the while requiring her to wait longer for treatment.
19The adjudicator addressed the inclusion of these two IE reports at paragraph 9 of the decision:
I will admit the IE reports of Dr. Dessouki… and Mr. Hartog. While I agree that the document was not served in accordance with the deadline provided in the Tribunal’s order, I find that it is relevant to the issues in dispute. Secondly, it was served approximately two months prior to the written hearing date and in advance of the deadline for the applicant’s submissions. In my view, the applicant was not prejudiced as she had time to address it or could have brought a motion for an adjournment if she required more time.
20This quotation makes clear that the adjudicator turned his mind to relevant considerations when deciding whether to admit the reports, namely, the timing of the document exchange, the relevance of the reports, and the prejudice facing the applicant from their inclusion. I see no issue with his analysis.
21I also note that, in addition to the fact that Mr. Hartog’s report was not explicitly referenced again (suggesting that his opinion did not form part of the adjudicator’s analysis), Dr. Dessouki’s report appears to have been given limited weight in the analysis of the applicant’s alleged, physical impairments. Specifically, after detailing Dr. Dessouki’s report, the adjudicator found at paragraph 22 that—regardless of the weight given to the respondent’s evidence—the applicant had not met her onus at first instance based on this ground:
Finally, the onus is on the applicant to prove on a balance of probabilities that her injuries are not minor. Even if I were to give the respondent’s IEs little weight, the onus remains on the applicant. The applicant has not met her onus to prove that she sustained impairments because of the accident that would take her out of the MIG.
22Finally, I conclude that the applicant has not demonstrated how her arguments under Rule 18.2(a) establish that there has been a material breach of procedural fairness. For instance, the applicant has not pointed to any part of the Schedule or the Rules that requires an insurer to notify the insured person that an IE report will be relied upon in its hearing submissions. Rather, the respondent’s final arguments and evidence did not need to be revealed to the applicant until it filed and served its responding submissions. Similarly, I find the applicant has not shown how the adjudicator’s reference to the possibility of an adjournment was procedurally unfair.
23Overall, I find the applicant has not established grounds for reconsideration under Rule 18.2(a).
Rule 18.2(b) – Errors of Fact or Law
24The applicant submits that the adjudicator made several errors in rendering the decision. I will address these alleged errors in turn.
25First, the applicant contends the adjudicator did not “recognise that the Respondent breached its obligations” regarding its IE reports and denials from the Schedule. For instance, according to the applicant, the respondent did not provide her with the IE reports within 10 days of receiving them, and it was barred from relying on the MIG due to s. 38(9). I do not find the applicant has established how these alleged errors impacted the decision, as the adjudicator concluded that she did not meet her onus to demonstrate removal from the MIG. By not meeting this onus, any alleged deficiencies in the respondent’s case—including whether it can rely on its IE reports to support its denials—are moot.
26Next, the applicant alleged several errors with the adjudicator’s interpretation of the medical evidence. Specifically, the applicant alleges the adjudicator “heavily” relied on the IE reports; he drew incorrect conclusions from the family doctor’s records about her alleged concussion; and he failed to recognize that “the MRI showed degenerative changes” that would impact her recovery under the MIG.
27I find none of these alleged errors meet the standard under Rule 18.2(b).
28To start, the arguments about the IE reports and the family doctor’s records effectively amount to requests to re-weigh evidence that was considered at first instance. As noted above, the reconsideration process is not a venue for re-weighing evidence. Rather, the requesting party has the onus to show that an adjudicator’s assessment of the evidence amounts to a legal or factual error. The applicant has not met this standard, as disagreement alone is not sufficient.
29For “the MRI”, I can then infer that the applicant is referencing an MRI from June 10, 2024, as that is the only such record mentioned in her written hearing submissions. The applicant states that, if the adjudicator had recognized the degenerative changes mentioned in the MRI, he would have reached a different conclusion about “her ability to recover from injuries if subjected to the MIG limits”. This last statement is an apparent reference to s. 18(2) of the Schedule, which is a provision that allows an insured person to be removed from the MIG if they can show that a pre-existing condition will inhibit their recovery of a minor injury under the MIG. However, the applicant’s s. 18(2) argument was considered and rejected by the adjudicator in the initial decision. There is no explanation for why his analysis was incorrect.
30Further, I note that s. 18(2) requires an insured person to establish that the pre-existing condition was “documented by a health practitioner before the accident”. In this case, the accident took place on August 16, 2022, and this MRI is dated June 10, 2024.
31Finally, the applicant notes that the adjudicator referenced chronic pain syndrome at paragraph 20 of the decision, yet she did not put forward this ground as a possible means for removal from the MIG. She claims that this “confusion led to [the adjudicator’s] failure to understand the clinical notes and records which pointed to concussion as the basis for the various treatment recommendations.”
32I do not accept this position. While the applicant did not include it as one of the grounds for removal from the MIG in her submissions, I find this erroneous reference to chronic pain in paragraph 20 does not sufficiently challenge the otherwise extensive findings the adjudicator made about her medical evidence. For instance, in the paragraphs preceding and following paragraph 20, the adjudicator made a series of findings about the applicant’s evidence as it relates to her alleged non-minor, physical impairments. It is also clear that his analysis focused on the key aspect of the applicant’s case in this regard, namely, her alleged concussion. The applicant has not established how this erroneous reference to chronic pain upends these otherwise well-founded findings.
33Taken together, I find the applicant has not established grounds for reconsideration under Rule 18.2(b).
CONCLUSION & ORDER
34The reconsideration initiated under Rule 18.5 is granted.
35The reconsideration decision is cancelled, pursuant to Rule 18.4.
36The applicant’s request for reconsideration (filed April 14, 2025) is dismissed.
Craig Mazerolle Vice-Chair Tribunals Ontario – Licence Appeal Tribunal
Released: August 1, 2025