RECONSIDERATION DECISION
Before:
Jeremy A. Roberts, Vice-Chair
Licence Appeal Tribunal File Number:
20-012558/AABS
Case Name:
Ngoc My Ly v. Aviva General Insurance
Written Submissions by:
For the Applicant:
Meghan Hull, Counsel
For the Respondent:
Jonathan White, Counsel
OVERVIEW
1On April 22, 2025, the applicant requested reconsideration of the Tribunal’s decision dated March 31, 2025 (“decision”). For the purpose of this decision, this request for reconsideration will be referred to as the “Applicant’s Reconsideration Request”.
2Following this, on May 5, 2025, the respondent also requested reconsideration of the Tribunal’s decision. For the purpose of this decision, this request will be referred to as the “Respondent’s Reconsideration Request”.
3Following a videoconference hearing, Adjudicator Zotalis and I released our decision. In the original decision, we found that the applicant was entitled to an income replacement benefit (“IRB”) for the pre-104-week period, but not for the post-104-week period. We disagreed with the respondent’s position that the applicant was barred from proceeding to a hearing on IRB entitlement because she failed to attend an insurer’s examination (“IE”) under s.44 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). We also found that the applicant was entitled to seven out of eight proposed treatment or assessment plans.
4The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“LAT 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.
5In the Applicant’s Reconsideration Request, the applicant argued that 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. The respondent disagreed. The applicant seeks to vary the Tribunal’s decision to confirm that she meets the post-104-week IRB test.
6In the Respondent’s Reconsideration Request, the respondent also argued that 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. The applicant disagreed. The respondent seeks to vary the Tribunal’s decision to confirm that the applicant is barred from proceeding to a hearing on IRB entitlement because she failed to attend an IE or, in the alternative, that the applicant is not entitled to pre-104-week IRBs.
RESULT
7Both parties have not established grounds for reconsideration on the basis that the Tribunal made an error of fact or law such that the Tribunal would likely have reached a different result had the error not been made.
8Both the applicant and respondent’s requests for reconsideration are dismissed.
ANALYSIS
9The 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.
10I will start by assessing the Respondent’s Reconsideration Request. I will then turn my attention to the Applicant’s Reconsideration Request.
The Tribunal did not make an error of law or fact in determining whether the applicant was barred from proceeding to a hearing on IRBs
11In regard to the preliminary issue, I find that the respondent has not established grounds for reconsideration on the basis that the Tribunal made an error of fact or law such that the Tribunal would likely have reached a different result had the error not been made.
12The respondent argues that the Tribunal made an error of law when it determined that the applicant was not barred from proceeding to a hearing on IRBs because of her non-attendance at an IE. Specifically, it argued on reconsideration that: (1) s.44 of the Schedule does not time restrict the insurer in scheduling IEs, and, therefore, the associated consequences for not attending should also not be time-barred; (2) the ruling disregarded the insurer’s ongoing obligation to assess the insured’s condition; and (3) the ruling failed to adequately interpret s.55(1) in a harmonious way alongside the entirety of the Schedule.
13In making these arguments, the respondent supported its arguments with reference to several FSCO and LAT decisions including Belair Insurance Co. v. F.S., 1996 ONICDRG 97 (“Belair”), Ritchie v. Aviva Insurance Canada, 2022 ONLAT 21-007812 (“Ritchie”) and C B.L. v. Economical Insurance Company, 2019 ONLAT 94125 (“C B.L.). In Belair, the adjudicator found that s. 23(2) was not limited to requests made before the termination of benefits or the commencement of mediation because such a limit would prevent an insurer from effectively evaluating the claim. Similarly, the adjudicators in Ritchie and C B.L. found that the insurer has a duty to adjust the file on a continuous basis. The Respondent also pointed to Noble v. Economical Insurance Company, 2024 ONSC 6985 (“Noble”), where the Divisional Court upheld the Tribunal’s decision to bar an applicant who failed to attend a reasonable and necessary assessment. The respondent also references other Tribunal decisions which found the same.
14The applicant argued that there is no merit to the respondent’s request for reconsideration on these grounds given that Rule 18.1 of the LAT Rules specifically says that the Tribunal may only reconsider a decision that finally disposes of an appeal, which this aspect of the decision does not do. Furthermore, the applicant argued that the original decision’s interpretation of s.55(1) of the Schedule was correct, and that s.44 does not provide a blanket right for the insurer to request an IE, given that the Schedule requires them to be reasonably necessary. Lastly, the applicant argued that Noble can be clearly differentiated from this case, given that one of the scheduled IEs in dispute in that case had, in fact, been scheduled 8 months before the hearing.
15The respondent disagreed with the applicant’s contention that this reconsideration request was not valid grounds for a reconsideration, arguing that the Tribunal has jurisdiction in reconsiderations to vary part of the decision. Moreover, it argued that, in its original Notice of Motion, the respondent did seek to bar the entire Tribunal application, not solely the IRB, meaning that it would meet the definition even if the Tribunal sought to adopt a stricter interpretation of Rule 18.1.
16I find that the respondent has not shown that the Tribunal made an error of law in its determination that the preliminary issue did not apply in this case because I do not find that the respondent has met its onus. As noted in our decision at paragraph 11, Adjudicator Zotalis and I found that the language of “shall not apply” in the Schedule suggests that “the subsequent restrictions apply only if the non-compliance occurred prior to the application.” We also assessed this wording in light of the purpose of s.44. While we agree that the respondent has an ongoing obligation to assess the insured’s condition, this does not automatically grant them access to this recourse in s.55(1)2 given its specific wording. When considering any procedural unfairness against the respondent, the respondent does retain the ability to make submissions on what weight the applicant’s corresponding reports should be given if she did not submit herself to a reasonably necessary s.44 assessment.
17I also agree with the applicant that the arguments made in Noble can be differentiated from this case, because some of the IEs in that case were scheduled prior to the Tribunal application. As documented in paras 8-12 of Noble, the court documented the timeline of the psychiatric assessment that was the focus of the preliminary issue. This IE was rescheduled several times, despite being initially scheduled as part of the insurer’s responsibilities under s.45(2) of the Schedule. The Court found in that particular case that the respondent did not wait “until the 11th hour to push for a further assessment” (see paragraph 31 of Noble).
18Additionally, I find that the facts of the previous Tribunal cases do not align with the circumstances present in this particular case. Belair more narrowly focused on the insurer’s right to initiate an assessment after the commencement of mediation. This is not relevant in this case given that the ability of the insurer to initiate an assessment is not in dispute, only its ability to bar an application. In Ritchie, the subject IE assessment was requested before the application was filed, differentiating it from the facts in this case. And, in C B.L. the adjudicator clearly finds that s.55(1)2 does not apply to the set of circumstances at play, making it of little value in this case.
19In regard to the preliminary issue, I find that the respondent has not shown that 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.
The Tribunal did not make an error of fact in determining entitlement for pre-104-week IRBs
20Turning to the pre-104-week IRBs, I find that the respondent has not established grounds for reconsideration on the basis that the Tribunal made an error of fact or law such that the Tribunal would likely have reached a different result had the error not been made.
21The respondent argues that the Tribunal made an error of fact in evaluating the medical evidence to determine entitlement to IRBs and interest. Specifically, the respondent argues that the decision of the Tribunal over-relied on the evidence of Drs. Valentin and Zakzanis, while disregarding the evidence of the family physician who found no psychological complaints in the two years after the accident. Furthermore, the respondent argued that the Tribunal failed to consider the evidence of OT Levidas, who found the applicant’s executive functioning, memory, attention, and concentration were intact. Lastly, the respondent argued that using Dr. Zakzanis’ report to bolster the case for IRBs was improper, given that he only commented on the reasonableness and necessity of a neuropsychological assessment and did not make any findings on the IRBs.
22The applicant argues that the respondent is attempting to re-litigate the issue, and it has failed to point to compelling evidence that the Tribunal made an error of fact. It further argued that the respondent made contradictory arguments in criticizing the Tribunal for relying on an IE that did not address the IRBs, all the while encouraging it to consider another IE that also did not address the IRBs.
23I find that the Tribunal did not make an error of fact in determining entitlement to pre-104-week IRB entitlement because I find that the respondent has not met its onus. Adjudicator Zotalis and I considered and weighed the evidence of Drs. Valentin and Zakanis in paragraphs 28 and 29. In paragraph 24, we noted that the onus is on the applicant to prove her case. While we did consider the evidence of the respondent’s assessors in paragraph 29, we were ultimately satisfied that the applicant had met her onus of proving entitlement through the evidence she presented on a balance of probabilities.
24The 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. In this case, the respondent has not demonstrated how its request for reconsideration meets this high threshold given that the proper process was followed and documented. Disagreement alone with the Tribunal’s factual findings is not sufficient to trigger Rule 18.2(b).
25I find that the respondent has not shown that the Tribunal made any errors of law or fact such that the Tribunal would likely have reached a different result had the errors not been made. As such, the Respondent’s Reconsideration Request is dismissed.
The Tribunal did not make an error of fact in determining entitlement to post-104-week IRBs
26Turning to the Applicant’s Reconsideration Request and her submissions about the post-104-week IRBs, I find that the applicant has not established grounds for reconsideration on the basis that the Tribunal made an error of fact or law such that the Tribunal would likely have reached a different result had the error not been made.
27The applicant argues that the Tribunal made an error of fact by failing to consider all of the medical evidence before it when considering the issue of post-104-week IRB entitlement. Specifically, she argues that the reports of Drs. Valentin, Becker, Zakzanis, Lau, and Law detail entitlement to post-104 IRBs, with reference to the applicant’s adjustment disorder, major depressive disorder, chronic pain. She further argues that the Tribunal did not identify which assessors it relied on in making a finding that her functionality did not meet the level of impairment described in the IRB test. She also argued that reliance on the reports of Dr. Dharamshi and OT Levidas is flawed, given that these assessors did not conduct a contemporaneous assessment.
28The respondent argues that the applicant’s request for reconsideration is not merited, because the Tribunal’s reasoning was sound. It argued that the evidence from the medical professionals who assessed the applicant supported the case that she possessed the requisite skills and training suitable for completing the duties of a general labourer. It argued that the reports of Drs. Valentin & Becker, whom the applicant relied on heavily in its case, were lacking because they did not paint a complete picture of her complete inability to perform the duties of her job, or any similar job matching her training and experience. When considering the argument that the IE assessors reports should be disregarded because they did not specifically address post-104-week IRB, the respondent submits that the post-104-week IRBs were not completed due to the applicant’s non-attendance at newly scheduled IEs but that this should not dimmish their value.
29I find that the Tribunal did not make an error of fact in determining that the applicant was not entitled to post-104-week IRBs because the applicant did not meet her onus. While Adjudicator Zotalis and I agreed with Dr. Valentin’s finding of pre-104-week entitlement in paragraph 28, and we considered the support of other assessors in corroborating his findings in paragraph 29, we did not find the evidence of Dr. Valentin persuasive as it related to post-104-week entitlement. We explained this finding in paragraph 36. With the onus on the applicant, the lack of contemporaneous evidence from the IE assessors was not a significant factor in our decision, as, ultimately, it was up to the applicant to prove her case.
30In this instance, as outlined in paragraph 36, we found that Dr. Valentin’s report – key to the applicant’s case – lacked sufficient detail to meet that onus. As noted above, there is a high threshold for the test for reconsideration and this is not an opportunity for parties to re-litigate their positions. In this case, the applicant has not demonstrated how her request for reconsideration under these grounds meets this high threshold, and, once again, disagreement alone with the Tribunal’s factual findings is not sufficient.
31I find that the applicant has not shown that the Tribunal made any errors of law or fact such that the Tribunal would likely have reached a different result had the errors not been made. As such, the Applicant’s Reconsideration Request is dismissed.
CONCLUSION & ORDER
32I dismiss both the applicant and respondent’s requests for reconsideration.
Jeremy A. Roberts
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: August 11, 2025