RECONSIDERATION DECISION
Before: Sam Moini, Adjudicator
Licence Appeal Tribunal File Number: 23-002684/AABS
Case Name: Liana Tetruashvili v. Toronto Transit Commission
Written Submissions by:
For the Applicant: David Kapanadze, Counsel
For the Respondent: Maximir Luburic, Counsel
OVERVIEW
1On December 2, 2024, the applicant requested reconsideration of the Tribunal’s decision dated November 15, 2024 (“decision”).
2The decision found that the applicant does not meet the definition of catastrophic impairment as a result of the accident as defined in section 3.1(8) of the Schedule (“Criterion 8”). The decision also found neither party was entitled to the costs they sought.
3The 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.
4The applicant’s request identifies the following grounds under Rule 18.2:
a. The Tribunal committed a material breach of procedural fairness; and
b. The Tribunal made errors of law or fact that likely affected the outcome.
5The applicant’s position is that the Tribunal committed a material breach of procedural fairness when it shortened the videoconference hearing from 7 days to 4 days. Further, that the Tribunal made errors of law or fact in handling its challenge of an expert witness under Rule 10.4, in assessing the evidence, and applying the causation test. The applicant also argues the Tribunal acted outside its jurisdiction by failing to adhere to the Schedule.
6The applicant requests the following relief from the Tribunal:
a. Reconsider its decision and find that she meets the definition of catastrophic impairment under Criterion 8; and/or
b. Alternatively, remit the matter for a new hearing with directions to properly assess all evidence regarding the impairments under the Schedule; and/or
c. Grant any further relief deemed just.
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.
Rule 18.2(a) – The Tribunal did not commit a material breach of procedural fairness
9I find the applicant has not established grounds for reconsideration based on her submissions that the Tribunal committed a material breach of procedural fairness.
10The applicant’s position is that the Tribunal committed a material breach of procedural fairness when it shortened the hearing from 7 days to 4 days, without notice or reasons.
11The Tribunal provided oral reasons during the hearing, but did not include written reasons in the Tribunal’s decision for this procedural matter.
12According to the Case Conference Report and Order (“CCRO”) released October 30, 2023, the parties were entitled to call a maximum of six witnesses each for a total of twelve. The CCRO names specific individuals each party identified at the time as potential witnesses. The parties were ordered to exchange and file their final witness lists 30 days in advance of the hearing. A seven-day videoconference hearing was scheduled by the Tribunal to take place from April 30 to May 8, 2024. The CCRO identified a single issue in dispute, i.e., catastrophic impairment.
13The parties filed their respective final lists of witnesses, both dated March 28, 2024. The two lists included a total of seven witnesses, rather than the twelve contemplated by the CCRO.
14The applicant’s final list of four witnesses identified:
a. Dr. Pushpa Kanagaratnam, Clinical Psychologist
b. Judith Greenspan, Occupational Therapist
c. George Tetruashvili, Applicant’s Grandson
d. Liana Tetruashvili, Applicant
15The respondent’s final list of three witnesses identified:
a. Montana Mullane, Occupational Therapist
b. Dr. Velan Sivasubramanian, Psychiatrist
c. Dr. Galina Gotesman, Applicant’s Primary Care Physician
16On the first day of the hearing, the applicant’s proposed timetable was as follows: There would no witnesses on April 30, 2024. The applicant’s grandson would testify on May 1, 2024. Dr. Kanagaratnam would testify on May 2, 2024. The applicant had no witnesses set for May 3 and May 6, 2024. Ms. Greenspan would testify on May 7, 2024, and the applicant would testify on May 8, 2024.
17With this information, the Tribunal noted three full days (Tuesday, April 30; Friday, May 3; and Monday, May 6) where the applicant’s case was not yet closed, yet no applicant witnesses would be testifying. In the Tribunal’s view, this approach was a poor and inefficient use of hearing time. The parties were told that, since there was a significant reduction in witnesses, the 7 days would be reduced to 4 days to run an efficient and proportional hearing, and the parties were given the opportunity to mutually agree on a timetable of the 4-day hearing, which they did before the hearing began.
18The hearing ultimately took place from April 30, 2024 to May 3, 2024.
19Ultimately, during the four days of the hearing, only the following three witnesses attended and provided evidence:
a. George Tetruashvili, Applicant’s Grandson
b. Dr. Sivasubramanian, Psychiatrist
c. Dr. Kanagaratnam, Clinical Psychologist
20The applicant was originally scheduled to testify on May 8, 2024. Her counsel submitted that she was in and out of the emergency room, on heavy medication, and had a number of medical issues. The parties’ updated schedule had her slotted in as the last witness, i.e., scheduled to testify on May 3, 2024. However, once the hearing began, counsel advised that the applicant would not be able to testify at all due to her medical condition. There was no accommodation request submitted at any time from the applicant, as available under the Rules and Tribunal’s procedures. There was no adjournment request in light of her apparent unavailability, either.
21Ms. Greenspan was only available on May 7, 2024. She ultimately was not fitted in the updated timetable to testify and did not testify.
22As for the respondent’s witnesses, Dr. Gotesman refused to attend the hearing unless he received a summons. The Tribunal noted in the decision that it had previously denied the respondent’s requests for a summons of Dr. Gotesman, and the further request did not comply with Rule 8.2, as discussed in paragraph 12 of the decision. Ms. Mullane was said to be available near the end of the hearing and not available to attend in the first 4 days of the hearing.
23The first day ended with two hours left unused at the end of day. Similarly, on the second day, there were just under four hours left. On the fourth day, there were just under five hours left.
24For these reasons, I am therefore satisfied that the hearing was procedurally fair and that, due to the factors outlined above and as identified in the CCRO, the Tribunal’s discretion to shorten the hearing was proportional and fair. The applicant has not demonstrated that there was a material breach of procedural fairness, pursuant to Rule 18.2(a).
Rule 18.2(b) – The Tribunal did not err in fact and/or law
(a) CNRs of respondent’s expert reports
25I find that the applicant has not established grounds for reconsideration based on her arguments about the clinical notes and records (“CNRs”) of the respondent’s expert reports, pursuant to Rule 18.2(b).
26The applicant submitted that, in the CCRO, the respondent was ordered to provide the "Copies of the Section 44 Examination Reports and Clinical Notes and Records (CNRs) of IE assessors relative to the CAT assessors". The applicant argued that the respondent’s CAT assessors’ reports should be excluded from the hearing, claiming the CNRs were not produced.
27The Tribunal addressed this argument in paragraph 16 of the decision, where the Tribunal stated:
We find the reports were provided within the deadlines set and the applicant had ample opportunity to review the reports, respond and to prepare for cross examination. The CNRs of the reports’ authors are separate from the reports and are not being relied upon by the respondent. For the reasons above, we denied the applicant’s request.
28The applicant argued that Dr. Sivasubramaniam admitted during cross-examination that he had the CNRs and relied on them for his assessment, which, in turn, prejudiced the applicant. The applicant also argued Dr. Sivasubramaniam’s report was discredited in a prior Tribunal decision.
29The respondent submitted their experts did not rely on or review the CNRs of the CAT assessors. The respondent stated that the applicant’s claim that Dr. Sivasubramanian admitted during cross-examination that he had the CNRs and relied on them for his assessment is not true. The respondent acknowledged that applicant’s counsel did ask Dr. Sivasubramanian if he created handwritten notes. Dr. Sivasubramanian stated that he did, and he transcribed his handwritten notes into his report. The respondent also submitted that the credibility concerns of Dr. Sivasubramanian were unfounded. The respondent claimed the applicant’s assertion that one of Dr. Sivasubramanian’s reports was discredited in a prior Tribunal decision is incorrect. Dr. Sivasubramanian was not discredited, rather the adjudicator placed less weight on his report than the other experts because he spent less time assessing the applicant in that matter.
30I find that the Tribunal did not make an error of law or fact. The Tribunal agrees with the respondent that, though Dr. Sivasubramanian acknowledged he did have handwritten notes, he did state he transcribed them into his report. Also, I find no reason to discredit Dr. Sivasubramanian’s report. Though, in a previous Tribunal decision, the adjudicator may have given his report less weight, it would have no impact on this applicant’s hearing. The Tribunal accepted Dr. Sivasubramanian’s report, and the Tribunal gave it more weight because it was more aligned with the medical evidence before the Tribunal.
31For all these reasons, I find that the applicant has not shown that an error had been made regarding the CNRs of the respondent’s expert reports.
(b) Expert Evidence & Documentary Evidence
32I find that the applicant has not established grounds for reconsideration based on the Tribunal’s assessment of expert evidence and documentary evidence, pursuant to Rule 18.2(b).
33The applicant submitted that the Tribunal failed to consider her expert evidence, including the testimony and reports of Dr. Kanagaratnam, and instead improperly favored the respondent's expert. The applicant claims that no detailed analysis was given to favour the respondent’s expert over that of her expert. The applicant claims that, though there were many reports submitted into evidence, the Tribunal chose to ignore the written reports.
34The respondent submitted that adjudicators need not reference every piece of evidence in their decision. The respondent disagreed that the Tribunal did not give a detailed analysis of the reasons for why the Tribunal preferred its expert, highlighting that 9 paragraphs were spent explaining the Tribunal’s decision.
35I agree with the respondent that there was detailed analysis given for the decision. Paragraph 28 of the decision explains the Tribunal’s consideration of the evidence, which stated:
In considering the evidence that was presented, we find the applicant did not suffer a marked impairment in the domain of adaptation as a result of mental or behavioural disorder as a result of the accident. Though we agree the applicant has impairments, we find the evidence does not satisfactorily differentiate between her physical impairments and her mental and behavioural impairments. The applicant’s physical condition, based on the evidence provided, showed that her impairments were mainly due to her physical limitations, which included many physical health issues, and the evidence supports the view that her impairments were pre-existing prior to the accident. The grandson’s evidence is given less weight because he had not spent sufficient time with the applicant pre-accident and his testimony contradicted the medical records. Therefore, we agree with the respondent that the applicant suffers from a mild impairment in the area of adaptation.
36Also, the alleged errors of facts and law do not point to errors, but instead either propose a re-weighing of the evidence or allege that evidence was “ignored” by the Tribunal. It is well established that the re-weighing of evidence considered at first instance is not the proper role of reconsideration. Further, there is no obligation on the Tribunal to address or reference every piece of evidence or case law that is put before it at a hearing. Though not mentioned in the decision, all reports were considered. The decision was based on the medical evidence before the Tribunal. For example, Ms. Greenspan occupational therapy report though considered was not mentioned, as all evidence need not be mentioned in the decision.
37For all these reasons, I find that the applicant has not shown any error has been made regarding the Tribunal’s assessment of expert evidence and documentary evidence.
(c) AMA Guides Analysis
38I find that the applicant has not established grounds for reconsideration based on the Tribunal’s analysis of the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993 ("AMA Guides"), pursuant to Rule 18.2(b).
39The applicant submitted the Tribunal exceeded its jurisdiction by failing to adhere to the Schedule, which requires impairments under Criterion 8 to be assessed using the AMA Guides. The applicant claims that Dr. Kanagaratnam’s reports applied the guidance from the AMA Guides, and critiques Dr. Sivasubramaniam’s methods, noting an "Incorrect comparison of AMA Guides ratings." The applicant states that, in paragraph 26 of the decision, the Tribunal incorrectly accepted Dr. Sivasubramaniam’s claim that Dr. Kanagaratnam conflated physical and psychiatric impairments. However, the applicant submits, in Section 3 of Dr. Kanagaratnam’s rebuttal report, this expert directly addresses and disproves this assertion. The applicant claims the Tribunal failed to explain why greater weight was given to the respondent’s expert.
40The respondent states the applicant’s opinion is that, since her expert disagreed with Dr. Sivasubramanian’s methodology, his report should not be fully accepted. The respondent claims the applicant does not provide any clear argument or evidence as to how Dr. Sivasubramanian or the Tribunal failed to adhere to the Schedule. The respondent also claims Dr. Sivasubramanian is a psychiatrist, while Dr. Kanagaratnam is a psychologist. As such, they have different ways of assessing patients. The respondent also claims that the applicant is requesting that the evidence from the hearing be re-weighed, something that is beyond the scope of a reconsideration.
41I agree with the respondent that no clear argument was made for how the Tribunal did not adhere to the Schedule. As mentioned above, at paragraph 28 of the decision, the Tribunal explained its consideration of the evidence. Also, I find that the applicant’s arguments are asking the Tribunal to re-weigh the evidence, and, as mentioned above, the re-weighing of the evidence considered at first instance is not the proper role of reconsideration.
42For all these reasons, I find that the applicant has not shown any error has been made regarding the Tribunal’s analysis of the AMA Guides, pursuant to Rule 18.2(b).
(d) Causation Test
43I find that the applicant has not established grounds for reconsideration based on the Tribunal’s application of the causation test, pursuant to Rule 18.2(b).
44The applicant submitted that the Tribunal erred in law by applying the incorrect principles with respected to causation. The applicant cites paragraph 28 of the decision that determines the issue of causation. Specifically, the Tribunal made a finding that the applicant’s impairments were primarily due to her pre-existing physical conditions. The applicant claims the Tribunal failed to apply the proper causation test, as outlined in the Divisional Court’s decision in Sabadash v. State Farm et al., 2019 ONSC 1121 (“Sabadash”), and recently applied by the Tribunal in Abou-Gabal v. Economical Insurance Company, 2024 CanLII 77423. According to the applicant, this oversight occurred despite the test being submitted in her closing submissions, supported by leading authorities.
45The respondent submits the applicant provides no explanation in her submissions as to how the Tribunal applied the causation test improperly. The respondent also submitted that the applicant’s ODSP records and medical records—which showed extensive physical and psychological issues pre-accident—were provided and relied upon by the respondent in its hearing submissions and by its experts in their CAT assessment reports. The respondent is claiming the applicant is requesting that the evidence from the hearing be re-weighed, something that is beyond the scope of the reconsideration.
46Though I agree that the Sabadash decision was not cited in the Tribunal’s reasons, the respondent correctly pointed to evidence that they relied upon, and that the Tribunal considered, in regard to causation. Specifically, at paragraph 27 of the decision, the Tribunal stated:
The respondent argues that the applicant’s completed ODSP form dated in April of 2016 contradicts the testimony of the applicant’s grandson as to her independence and functioning pre-accident. The form states she experiences difficulties due to her disabilities in her physical, emotional, psychological, and developmental state. The respondent submits that the contradiction relates to the applicant’s level of independence in her daily activities prior to the accident, which included:
(a) Applicant had severe pain.
(b) Applicant relied on her friends for shopping, cleaning, and cooking.
(c) The applicant was depressed due to her physical health conditions.
In contrast, the applicant’s grandson’s testimony was that she did not have these issues until after the accident. However, the applicant’s evidence acknowledges that she had not worked since coming to Canada in the early 2000s and has received support from the Ontario Disability Support Program (ODSP) since 2007.
47Even if I agreed with the applicant’s reconsideration submissions that an error of fact was made in the causation test being misapplied, it would not change the outcome of the decision.
48Also, the Tribunal’s decision that the applicant’s level of function not being a class 4 “marked” impairment under the Adaptation domain would deem the applicant not catastrophically impaired as suggested in the decision. As mentioned in the Tribunal’s decision, the Tribunal determined the applicant’s limitations were mostly physical impairments, rather than her mental and behavioural impairments, which led to the Tribunal to find the applicant had a “mild” impairment under Adaptation. However, the causation test would have led the Tribunal to the same result. The respondent’s evidence was accepted and mentioned in the decision and stated above. Based on the evidence given to the Tribunal, including the “ODSP form”, the applicant’s significant pre-existing medical conditions were the factors to her conditions after the accident. The applicant’s evidence of her pre-accident condition, including her grandson’s testimony, was given little weight for the reasons noted above and in the decision.
49For all these reasons, I find that, even if an error had been established by the applicant regarding the Tribunal’s application of the causation test, a reconsideration is not warranted in this matter, because the applicant has not shown that the outcome of the decision would likely have changed.
CONCLUSION AND ORDER
50The applicant’s request for reconsideration is dismissed.
Sam Moini
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: September 5, 2025