RECONSIDERATION DECISION
Before: Nathan Prince, Adjudicator
Licence Appeal Tribunal File Number: 23-014551/AABS
Case Name: Feng Tong Guan v. The Co-Operators Insurance Company
Written Submissions by:
For the Applicant: Vanessa Liang, Counsel
For the Respondent: Julianne Brimfield, Counsel
OVERVIEW
1On May 13, 2025, the respondent requested reconsideration of the Tribunal’s decision dated April 22, 2025 (“decision”).
2Stemming from an automobile accident on February 10, 2023, and a request for accident benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”), we found that the applicant was not entitled to post-104 week income replacement benefits (“IRBs”) for the period February 8, 2025 to February 17, 2025. On reconsideration, the respondent seeks to have the time period of the IRB denial amended to be “ongoing” and not to be limited to an end date of February 17, 2025.
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 respondent relies on Rules 18.2(a) and 18.2(b) in its request for reconsideration.
5The applicant opposes the respondent’s request for reconsideration.
6The applicant filed her own request for reconsideration. It is being addressed in a separate decision.
RESULT
7The respondent’s request for reconsideration is granted.
8Pursuant to Rule 18.4, I vary the decision as detailed below.
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.
Rule 18.2(a) – Material Breach of Procedural Fairness
10I find the respondent has established grounds for reconsideration. I find that there was a material breach of procedural fairness when the panel advised the parties that it would be considering IRBs on an “ongoing” basis and subsequently only considered IRBs to the last day prior to the start of the hearing.
11At the commencement of the hearing, the parties brought several procedural motions, one of which involved the duration of IRBs. The applicant sought to have IRBs disputed on an ongoing basis, whereas the respondent submitted that post-104 week IRBs should not be considered because the hearing was being held only ten days into the post-104 week IRB period.
12The applicant explicitly requested that post-104 week IRBs be in issue on an ongoing basis, noting that it was the applicant’s application and she wanted to dispute IRBs to date and ongoing.
13The panel ordered that the issue in dispute with respect to IRBs would be as follows:
Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from February 17, 2023 to date and ongoing? (emphasis added)
14Once again, the panel found the applicant was not entitled to post-104 week IRBs for the period February 8, 2025 to February 17, 2025.
15The respondent submits that the panel committed a breach of procedural fairness by restricting the time period for our post-104 week IRB finding when we had earlier found the issue before us was “ongoing”.
16I agree with the respondent.
17The landmark case regarding procedural fairness is Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC) (“Baker”). In Baker, the Supreme Court lays out several factors to consider when considering procedural fairness including the legitimate expectations of the parties. Specifically, the Supreme Court states at para. 26:
if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness…
18In this present case, there was a legitimate expectation that the issue in dispute before the Tribunal was post-104 week IRBs on an ongoing basis. In fact, applicant’s counsel zealously advocated for the issue to be specifically worded to consider the benefit on an ongoing basis. There was no indication during the hearing that post-104 week IRBs would be time-limited, and therefore the reasonable expectation of the parties was that post-104 week IRBs were being disputed on an ongoing basis.
19In her responding reconsideration materials, the applicant submits that the panel’s decision to time-limit the period in dispute was an intentional decision by the panel and therefore no error was made. I disagree. While the decision to place a time period on post-104 week IRBs may have been intentional, this does not mean that no error was made. To the contrary, as I have already stated, placing a time period restriction on post-104 week IRBs breached the duty of fairness owed to the parties because the parties had a reasonable expectation that the issue was being disputed on an ongoing basis.
20The applicant further submits that this is the respondent’s third request to amend the decision and therefore the respondent’s request for reconsideration is unreasonable, frivolous, vexatious, and in bad faith and should be rejected. I do not agree. The first request was by way of letter to the Tribunal dated April 23, 2025 which sought to have the decision amended under Rule 17. This request was denied by the Tribunal due to the respondent not using the appropriate Amendment Request Form. The second request was submitted on the correct Amendment Request Form. This request was also denied by the Tribunal as the proposed amendments did not fall within the scope of Rule 17. The respondent’s third request, this reconsideration request, is brought pursuant to Rule 18, and it seeks to vary the decision on different grounds than previously sought in the first two requests. As such, I do not find the respondent’s request for reconsideration to be unreasonable, frivolous, vexatious, or in bad faith.
21The remainder of the applicant’s responding submissions involve substantive submissions relating to her entitlement to IRBs. The scope of this reconsideration request is solely the appropriate timeframe for post-104 week IRBs, and therefore, I find that the substantive submissions regarding entitlement are of no relevance to this reconsideration request.
22Based on the foregoing, I find the respondent has established grounds for reconsideration on the basis of a material breach of procedural fairness.
23As I have found there to be a material breach of procedural fairness pursuant to Rule 18.2(a), it is not necessary for me to consider reconsideration under Rule 18.2(b).
Rule 18.4 – Outcome of the reconsideration
24Rule 18.4 provides that upon, reconsidering a decision of the Tribunal, the Tribunal may dismiss the request, or, after providing the responding parties with an opportunity to make submissions, confirm, vary, or cancel the decision or order, or order a rehearing on all or part of the matter. Having found that the respondent has established grounds for reconsideration, I will now turn to the outcome.
25For the reasons that follow below, I vary the decision and find that the applicant is not entitled to post-104 week IRBs.
26At paragraph 59 of the decision, the Tribunal found:
The applicant offered no submissions to demonstrate her entitlement to post-104 week IRBs. Other than taking note of her pre-accident self-employment as a massage therapist, there was no evidence presented as to the applicant’s education, training or experience to show the scope of work that she is reasonably suited to engage in. Regarding the February 13, 2025 letter of Dr. Tang, as mentioned above, we assign little weight to the letter as it was not accompanied by any clinical notes and records or future explanation. While the letter states that Dr. Tang does not believe that the applicant can return to work, this is not the test for post-104 IRBs. The letter does not speak to the applicant’s ability to engage in any employment or self-employment. For these reasons, we do not find the letter persuasive or relevant to this issue. As such, we find that the applicant has not shown that she suffers from a complete inability to engage in any employment or self-employment to which she is reasonably suited.
27The applicant submits that there was evidence regarding post-104 week IRB entitlement contained in the transcript from the Examination Under Oath (“EUO”) which was entered into evidence in its entirety. Notwithstanding its inclusion in the hearing record, the applicant did not make any submissions with regards to the transcript’s contents during the hearing. Paragraph 30 of the case conference report and order, dated July 18, 2024, requires the parties to “make specific reference to the evidence and authorities by tab and page number”. I am not persuaded that the EUO should now be considered. The EUO is not fresh evidence, and the parties are expected to put their best foot forward at the hearing. Reconsideration is not an opportunity to re-weigh evidence or re-litigate arguments raised during the initial hearing.
28The applicant further submits that a letter from Dr. Tang, the applicant’s treating psychiatrist, supports her entitlement to post-104 week IRBs. As noted above, the Tribunal considered Dr. Tang’s letter in its decision and found that it was not persuasive. The applicant’s submissions appear to be an attempt to re-litigate the issues. Again, reconsideration is not an opportunity to re-weigh evidence or re-litigate arguments raised during the initial hearing.
29Having found that the applicant did not make any submissions regarding post-104 week IRBs, it follows that the applicant is not entitled to this benefit. Accordingly, I order that the decision be varied to reflect that the applicant is not entitled to post-104 week IRBs.
CONCLUSION & ORDER
30For the reasons noted above, the respondent’s request for reconsideration is granted.
31I vary the decision at paragraphs 9, 57, 60, and 145(ii) to read as follows:
[9] The applicant is not entitled to post-104 week IRBs.
[57] We find that the applicant has not established entitlement to post-104 week IRBs.
[60] Accordingly, as the applicant provided no further submissions or evidence regarding post-104 IRBs, we find that the applicant has not established on a balance of probabilities that she is entitled to post-104 week IRBs.
[145] ii. The applicant is not entitled to post-104 week IRBs.
Nathan Prince
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: September 16, 2025