RECONSIDERATION DECISION
Before: Rebecca Hines
Licence Appeal Tribunal File Number: 22-012418/AABS
Case Name: Bijal Rajani v. TD General Insurance Company
Written Submissions by:
For the Applicant: Adrian Lomaga, Counsel
For the Respondent: Nassim Rahimi, Counsel
BACKGROUND
1The applicant is seeking a reconsideration of my decision released on June 4, 2025 (“decision”), where I determined that she did not sustain a catastrophic (“CAT”) impairment and was not entitled to various accident benefits.
2The grounds for a reconsideration to be allowed are set out 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.
3In her request for reconsideration, the applicant identifies criteria a) and b) of Rule 18.2 as the basis for reconsideration and argues that I committed a material breach of procedural fairness in rendering my decision and erred in law and or fact such that I would have reached a different result had the errors not been made.
4The respondent opposed the applicant’s reconsideration request and argues that my decision is correct, and that the applicant is attempting to relitigate the same position that was already considered by the Tribunal at the hearing.
RESULT
5The applicant’s request for reconsideration is dismissed.
ANALYSIS
6Under Rule 18.2, the threshold for reconsideration is high. Reconsideration is a limited, error-correcting exercise, not a new hearing or an appeal of a hearing decision. The party requesting reconsideration must demonstrate how the Tribunal’s decision falls into one or more of the criteria set out in Rule 18.2.
I did not commit a material breach of procedural fairness in rendering my decision.
7The applicant submits that I committed a material breach of procedural fairness and erred in law and or fact in rendering my decision in the following ways:
(i) I gave little weight to the applicant’s approval of CPP benefits and a letter from her family doctor supporting that she had an inability to work in my analysis of the spheres of Adaption and Concentration, Persistence and Pace in assessing whether she sustained a CAT impairment;
(ii) I engaged in an analysis of the evidence without commenting on the primary submissions of the parties; and
(iii) I erred in concluding that the medical evidence did not support that the applicant had a marked impairment in Adaptation.
Non-compliance with Rule 9.3– Letter from family doctor and CPP Approval
8The applicant submits that I failed to comply with Rule 9.3 of the Licence Appeal Tribunal’s Rules because I did not provide the parties with the opportunity to make further submissions regarding evidence that was served late. In this case, the applicant submitted an updated letter from her family doctor for the first time in reply submissions and a CPP approval letter after the date of the conclusion of the written hearing.
9The applicant asserts that the letter approving her CPP benefits did not exist until March 2025. Consequently, she could not have submitted it by the deadline in the Tribunal’s case conference report and order (“order”) for the exchange of evidence. Further, she submits that I could have mitigated any prejudice to the respondent by allowing it to make further submissions on this evidence. She contends that had I applied the proper weight to this evidence, I would have reached a different result. In particular, I would have determined that she sustained a CAT impairment because her approval of CPP benefits supports that she has a marked impairment in Adaptation and Concentration, Persistence and Pace.
10The respondent submits that the principle of procedural fairness is highlighted in the Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 which requires decision makers to follow a fair process in making decisions. Further, it claims that I could not have cured any prejudice to it by requesting further submissions because it would have needed to provide this new medical evidence to its assessors for further consideration. In addition, a successful CPP application is not determinative of the applicant meeting the CAT threshold, which has a different legal test.
11The applicant made this reconsideration request on the grounds that I breached the rules of procedural fairness and or erred in law where the more appropriate criteria would have been to seek reconsideration under Rule 18.2 c). Even though the applicant did not check the box, I will consider this criteria.
12I find that I did not make a material breach of procedural fairness by not asking the parties for further submissions on evidence relied upon by the applicant through improper reply. Rather than excluding this evidence, I gave it little weight. It is well established law that the purpose of reply submissions is to address unforeseen arguments. The purpose of reply is not an opportunity to make submissions or obtain new evidence that should have been relied upon at first instance. The respondent’s submissions were dated June 7, 2024, and the updated letter of the applicant’s family doctor was dated June 11, 2014. It was not appropriate for the applicant to obtain this letter after the fact to address evidentiary weaknesses raised by the respondent. I find it would have been procedurally unfair of me to assign significant weight to this evidence. Finally, the applicant provided no explanation for why this letter could not have been obtained prior to the hearing and did not request the Tribunal’s consent to rely on same.
13In paragraph [32] of my decision, I acknowledged that this evidence was served late and indicated that I had given the updated letter of the family doctor little weight because of its late service. I also gave little weight to the letter approving the applicant’s CPP benefits because it was submitted long after the date of the conclusion of the written hearing. Additionally, I stated that the applicant did not articulate the relevance of this evidence in the email sent to the Tribunal and it significantly post-dated both parties’ CAT assessments. Consequently, I did not find it relevant to the time period in which the applicant was assessed for a CAT impairment. Rule 9.4 places no obligation on the Tribunal to ask for further submissions on evidence that is served in non-compliance with the Tribunal’s Rules and Orders or after the conclusion of a hearing. In addition, the approval letter for CPP benefits provided no context for the CPP application (i.e. physical or psychological disability) which resulted in the approval of the benefit or whether that disability was accident related. For this reason, I find the CPP approval letter of little relevance as far as my analysis on the spheres of Concentration, Persistence and Pace or Adaptation.
Failure to address primary submissions
14The applicant submits that I erred in law because I did not properly consider her primary submissions when analyzing the evidence. I find the applicant mischaracterized what I failed to consider because they were not primary submissions but improper reply submissions. Again, the applicant made new arguments in reply submissions which should have been raised at first instance. For example, for the first time in reply she argued that I should not give the respondent’s insurer examinations (“IE’) reports any weight because the assessors relied on a flawed surveillance report. I may have given more weight to this argument had it been set out in her primary submissions. Instead, the applicant attempted to split her case which would prevent the respondent from defending the case against it. Overall, I find I fairly addressed the parties’ submissions in analyzing the evidence and did not error in law by failing to consider the above argument.
15For the above-noted reasons, I find that I did not commit an error in law or make a material breach of procedural fairness in rendering my decision.
No error in law and or fact in my consideration of the medical evidence
16I find the applicant’s argument that I did not consider all the medical evidence in my finding regarding the sphere of Adaptation unsubstantiated. In paragraphs [10] to [47] of my decision I provided detailed reasons where I provided an in-depth review of the medical evidence in reaching my conclusion. I find the applicant is asking that I re-weigh the evidence and is attempting to relitigate her position which is not the purpose of the reconsideration process.
17For the above-noted reasons, I find that the applicant has not met her onus in proving that I erred in law in my application of the law or consideration of the parties’ evidence which would result in an alternative decision.
ORDER
18For all the above-noted reasons, the applicant’s request for reconsideration is dismissed.
Rebecca Hines Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: August 26, 2025