Citation: Zhang v. Intact Insurance Company, 2025 ONLAT 24-009695/AABS-R

RECONSIDERATION DECISION

Before:

Craig Mazerolle, Vice-Chair

Licence Appeal Tribunal File Number:

24-009695/AABS

Case Name:

Xiao Chen Zhang v. Intact Insurance Company

Written Submissions by:

For the Applicant:

Zoe Meditskos, Paralegal

For the Respondent:

Ada Lika, Counsel

OVERVIEW

1On September 5, 2025, the applicant requested reconsideration of the Tribunal’s decision released August 18, 2025 (“decision”).

2Stemming from an accident on September 3, 2020 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 two-day videoconference hearing. In the decision, the adjudicator found the applicant remained in the Minor Injury Guideline (“MIG”). He further concluded that the applicant was not entitled to an income replacement benefit (“IRB”), treatment plans, interest, or award.

3Importantly, for this reconsideration, the adjudicator also denied the respondent’s limitations defense for a psychological assessment treatment plan (dated July 8, 2022). By finding the denial letter was not clear and unequivocal, the adjudicator concluded the limitation period under s. 56 of the Schedule had not started.

4The 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.

5The applicant relies on Rule 18.2(b) to support his request for reconsideration. He is seeking an order finding he is removed from the MIG and entitled to the disputed benefits.

6The respondent asks the Tribunal to dismiss the request.

RESULT

7The applicant’s request for reconsideration 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.

9I find the applicant has not established grounds for reconsideration, pursuant to Rule 18.2(b).

10The applicant highlights several alleged errors in the decision. First, the applicant claims the adjudicator did not apply the correct legal standard for the MIG, as he required “contemporaneous” evidence to remove him from this funding limit. The applicant also argues the adjudicator ignored evidence from his family doctor, and he challenges the weight that was assigned to a report from Dr. Sharleen McDowall, psychologist (dated July 25, 2023). Second, the applicant argues the adjudicator incorrectly denied his entitlement to an IRB by placing too much emphasis on his technical breaches, all the while ignoring the respondent’s breach of s. 32(2) of the Schedule. For example, the applicant highlights the adjudicator’s reliance on a typo on his Disability Certificate (“OCF-3”). The applicant further argues that the adjudicator required him to provide “granular proof” of the essential tasks of his pre-accident employment. Finally, the applicant disputes the handling of the respondent’s denials, as well as the choice to not analyze his award claim and interest.

Minor Injury Guideline

11Starting with the MIG, I find the applicant has not demonstrated any error pursuant to Rule 18.2(b).

12First, the applicant takes issue with the adjudicator’s assessment of “contemporaneous” medical evidence. Though he discusses the adjudicator’s use of this standard when assessing the claim of chronic pain, this term was exclusively used in the assessment of the applicant’s alleged psychological condition (at paragraphs 52 and 53 of the decision):

I agree with the respondent that there is a lack of contemporaneous medical records supporting a psychological impairment. The applicant testified that he complained of anxiety on various visits to his family doctor following the accident, however, I was only directed to a single entry in the CNRs of Dr. Bector on March 31, 2023, approximately 2.5 years after the accident, and subsequent to the s. 25 assessment. During the visit to monitor blood pressure, Dr. Bector noted that he reported some anxiety, especially when driving and a truck is behind him.

Given the absence of corroborating evidence, I do not find the s. 25 assessment of Dr. McDowell to be persuasive. The assessment was completed in part based on the applicant’s subjective reporting and not supported by contemporaneous medical records. His reporting of psychological symptoms in the s. 25 assessment is not supported in Dr. Bector’s CNRs, covering a period of nearly three years from the date of the accident to the date of this assessment…

13As this quotation demonstrates, the term “contemporaneous” is being used in the context of determining whether there is corroborating evidence to support the applicant’s MIG position and expert evidence. Despite the applicant’s opposition, I find no error in the adjudicator testing the veracity of the applicant’s submissions by referencing other pieces of evidence from in and around the time of the accident. Similarly, the adjudicator is entitled to weigh contemporaneous evidence when assessing the reliability of an expert opinion.

14In addition to questioning the need for contemporaneous evidence, the applicant also challenges the adjudicator’s decision to assign Dr. McDowell’s assessment less weight because of the involvement of a psychotherapist. According to the applicant, this consideration amounts to a legal error, as “Section 25 permits assessments conducted by practitioners working under the supervision of a regulated health professional.”

15The psychotherapist’s involvement in the assessment was discussed at paragraph 53 of the decision (emphasis added):

Given the absence of corroborating evidence, I do not find the s. 25 assessment of Dr. McDowell to be persuasive. The assessment was completed in part based on the applicant’s subjective reporting and not supported by contemporaneous medical records. His reporting of psychological symptoms in the s. 25 assessment is not supported in Dr. Bector’s CNRs, covering a period of nearly three years from the date of the accident to the date of this assessment. In addition, the psychological assessment interview was not conducted by a psychologist, but rather a registered psychotherapist, Jian Su, through a phone call and video assessment, with the s. 25 report being co-authored by Dr. McDowell and Jian Su. I find there to be a lack of clarity as to the scope and nature of Dr. McDowell’s involvement in Jian Su’s assessment, if any involvement at all, to be a limiting factor in the reliability of the psychological diagnosis.

16As this quotation makes clear, the involvement of the psychotherapist was one of several reasons why the adjudicator assigned less weight to this report. In fact, the adjudicator appears to have been more concerned with his inability to parse apart the relative involvement of these two psychological professionals. Regardless, adjudicators have the right to consider different aspects of an expert opinion when assessing its relative weight. Unless an applicant can show that a factor is legally impermissible, the adjudicator will be entitled to consider different factors when conducting their evidentiary assessments.

17Turning to his handling of the family physician’s records, I do not find any errors in the adjudicator’s assessment of Dr. Neel Bector’s evidence. While the applicant claims the adjudicator overlooked these records when assessing his claim of chronic pain and the MIG, there is a detailed discussion about Dr. Bector’s records and chronic pain at paragraphs 42 and 44 of the decision:

In support of his position, the applicant relies on the clinical notes and records (“CNRs”) of his family doctor, Dr. Neel Bector, arguing that such CNRs provide a continuous record of back and hip pain, and that he was diagnosed by Dr. Bector with chronic pain syndrome. The applicant also relies on the SOAP notes of Mr. Zia Barmania, physiotherapist, of Mississauga Active Physiotherapy Service.

I have not been directed to any entries in the CNRs of Dr. Bector which diagnose the applicant with chronic pain syndrome. In reviewing the CNRs, the applicant’s first post-accident visit to Dr. Bector was on September 28, 2020, nearly four weeks after the accident, and appears to be primarily to evaluate high blood pressure. While the applicant reported right upper back pain at that time, in a follow up visit on October 4, 2020, he reported that this pain was gradually improving. CNRs starting in mid-2021 refer to mild chronic lower back pain but there is no reference to the accident and notes on x-ray imaging indicate degenerative changes and no neurological deficits.

18Finally, the applicant directed the Tribunal’s attention to several Divisional Court cases and Tribunal decisions involving the MIG. For instance, the applicant cites several cases from the Tribunal where insured persons were removed from the MIG based on chronic pain: see, e.g., Heifa v. Wawanesa Insurance, 2021 CanLII 108364 (ON LAT). Considering the highly fact-specific nature of medical evidence and impairments, I find this case law is of little assistance. Unless the applicant can show a specific error in the adjudicator’s handling of the medical evidence, I find other fact scenarios involving the MIG will do little to help establish an error.

Income Replacement Benefit

19Turning to the IRB, I find the applicant has not shown an error that would meet the standard of Rule 18.2(b). Instead, the applicant is largely asking for the Tribunal to re-litigate arguments and evidence from the initial hearing.

20Starting with the typo on his OCF-3, the applicant claims that, while it states his accident-related symptoms first appeared on September 3, “2022”, it is clear that “2022” is a typo. According to the applicant, the evidence demonstrates a sudden onset of his symptoms. Therefore, by focusing on this date over the substance of the evidence, the applicant claims the adjudicator’s IRB analysis was flawed. He cites Smith v. Co-operators General Insurance Co., 2002 SCC 30 (“Smith”) and Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882, to support this position.

21In response, the respondent claims this “error was not raised at the hearing”. The applicant did not address this part of the respondent’s submissions in reply. Instead, he again pointed to case law to support his position that clerical errors should “be read in context, and not used to bar supported claims.”

22As noted above, the reconsideration process is not meant to be a venue for re-litigating evidence already considered at first instance. The Tribunal has also made clear that new arguments will generally not be considered on reconsideration, as parties are expected to put their best foot forward during the hearing. Without showing this typo was identified during the hearing, it is not appropriate for me to reconsider the decision based on this new line of argumentation.

23Further, even if I accepted that the adjudicator erred by relying on this typo, I do not find the applicant has shown how correcting this error would likely have impacted the outcome. While I accept that the case law cited by the applicant makes it clear that the substance of the evidence should take precedence over technicalities and minor lapses in the record, it does not appear that the adjudicator solely relied on the “2022” date to deny the IRB. Rather, after detailing his concerns with this date on the OCF-3, the adjudicator concluded, at paragraphs 31 and 32, that it ultimately had little bearing on his IRB analysis:

Even if such date in the OCF-3 was not considered, I find the applicant has not established on a balance of probabilities that he is entitled to IRB. The applicant testified that he was employed at the time of the accident as a property manager at a school, responsible for maintaining the school property. He testified that for small repair and maintenance jobs he would do the work himself, and for larger jobs he would hire contractors. The OCF-2 indicates his job description is to maintain school property, and that essential tasks include heavy lifting, climbing, bending and driving.

I find the applicant has not identified which tasks he is unable to perform and to what extent he is unable to perform them. The applicant testified that his physical ability does not allow him to work but did not provide specifics on such tasks. Other than the OCF-3 which alone does not establish whether an applicant meets entitlement to IRB, the applicant did not direct me to any evidence to support that he was substantially unable to perform these tasks or that he otherwise suffers a substantial inability to perform his essential employment tasks, as required by s. 5(1) of the Schedule.

24Staying on this part of the decision, the applicant also takes issue with what he sees as an incorrect application of s. 5(1) of the Schedule, namely, the adjudicator’s focus on the accident’s impact on the essential tasks of the pre-accident employment. According to the applicant, the adjudicator overlooked evidence that supported his inability to return to work (including notes from Dr. Bector), and instead required him to provide “granular proof of each task” that he could not perform.

25First, I do not find the applicant has established an error with the adjudicator’s approach to the IRB. Section 5(1)1i states that, to be entitled to an IRB, the insured person must have been employed at the time of the accident, and they must suffer “a substantial inability to perform the essential tasks of that employment”. This clear and straightforward wording shows the focus of the analysis is on the “essential tasks” of the pre-accident employment, as opposed to a more general assessment of one’s ability to work in the abstract.

26Second, though the adjudicator does not explicitly explore how Dr. Bector’s records may have assisted the applicant in meeting his evidentiary burden for the IRB, I find he has not established an error, pursuant to Rule 18.2(b). Aside from the fact that Dr. Bector’s records were discussed at length when assessing the MIG under both chronic pain and psychological impairments (a review that shows the adjudicator’s deep grasp of this evidence), the applicant does not point to any note where Dr. Bector found he “could not return to work.” The applicant has the onus to establish a criterion under Rule 18.2, and I conclude that he has not met this onus.

27The applicant also alleges that the adjudicator “placed undue weight” on his technical breaches, all the while ignoring the respondent’s s. 32(2) breach. Specifically, the applicant claims the respondent did not “provide the Applicant with necessary forms and clear explanations of entitlement”, a violation of the duty set out in Smith.

28I do not accept this line of reasoning. While I recognize the duty for clear and prompt communication from Smith, the onus remains with the applicant to demonstrate substantive entitlement to the IRB at first instance. Put another way, even if the adjudicator had concluded that the respondent did not fulfill its obligations under s. 32(2), the applicant would still have had to meet his evidentiary burden. Further, as opposed to other parts of the Schedule, like s. 38(11), there is no “shall-pay” provision associated with breaches of s. 32(2).

Respondent’s Denials

29The applicant also raises concerns with the respondent’s adjusting process, namely, its denials of the IRB and the psychological assessment treatment plan.

30For the IRB, the applicant claims the respondent breached s. 36(4) by not properly responding to his OCF-3. With no proper denial, the applicant submits it must pay him an IRB. Then, for the psychological assessment treatment plan, the applicant argues that, since the adjudicator found the denial of this plan breached the standard from Smith, he should have further found a s. 38(8) breach and a corresponding remedy under s. 38(11).

31In response, the respondent claims that “the Applicant has not put forth any legal authority for its assertion that a denial deemed invalid by the Adjudicator ought to automatically be deemed payable”.

32I find the applicant has not established that any arguments about s. 36 or s. 38 were raised during the hearing. There are no references to these provisions in the decision, and the applicant does not claim in his reconsideration submissions that he mentioned these parts of the Schedule during the hearing. As noted above, new arguments will generally not be considered on reconsideration. Without some indication that the applicant asked for this relief at first instance, I find it is not appropriate for me to consider new arguments on reconsideration.

Award and Interest

33Finally, the applicant has not shown how the adjudicator erred by not conducting an analysis of the award claim and interest. With no benefits owing, there was no basis for either an award or interest.

CONCLUSION & ORDER

34The applicant’s request for reconsideration is dismissed.

Craig Mazerolle

Vice-Chair