Citation: Atkinson v. Economical Insurance Company, 2025 ONLAT 22-002008/AABS-R2

RECONSIDERATION DECISION

Before: Craig Mazerolle, Vice-Chair

Licence Appeal Tribunal File Number: 22-002008/AABS

Case Name: Patricia Atkinson v. Economical Insurance Company

Written Submissions by:

For the Applicant: Ashu Ismail, Counsel

For the Respondent: Martin Forget, Counsel Stephen Whibbs, Counsel

OVERVIEW

1Stemming from an accident on December 3, 2019, 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 seven-day videoconference hearing.

2A decision was released on October 3, 2023 (“initial decision”). The adjudicator found the applicant was not entitled to any of the benefits in dispute, i.e., an attendant care benefit (“ACB”); a housekeeping and home maintenance benefit (“HHB”); treatment plans for case management services, physiotherapy services, chiropractic services, a visual assessment, and voice therapy services; as well as a series of OCF-6s. The adjudicator further denied the claims for an award and interest.

3On October 24, 2023, the applicant filed a request for reconsideration. The Tribunal released its reconsideration decision on January 18, 2024. The adjudicator dismissed the request (“reconsideration decision”).

4On July 31, 2025, the Acting Associate Chair advised the parties that, under Rule 18.5 of the Licence Appeal Tribunal Rules, 2023 (“Rules”), the Tribunal was initiating a review of the initial decision and the reconsideration decision. His letter noted that “the review will focus on whether the Tribunal committed a material breach of procedural fairness as set out in Rule 18.2(a).”

5The parties were given the opportunity to make submissions. Both parties filed submissions as part of the review.

RESULT

6The reconsideration initiated under Rule 18.5 is granted.

7The initial decision and the reconsideration decision are cancelled, pursuant to Rule 18.4.

8The dispute will be sent to a rehearing. A case conference will be scheduled within 30 days of the release of this reconsideration decision so that the Tribunal may issue procedural and administrative directions as necessary for the conduct of the hearing.

9The further requests made by the applicant in her Rule 18.5 review submissions are dismissed.

ANALYSIS

10The grounds for a request for reconsideration are found in Rule 18.2. 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.

11The test for reconsideration under Rule 18.2 is a high threshold.

Rule 18.5 – Own Initiative Reconsideration

12I am satisfied that the Tribunal committed a material breach of procedural fairness in rendering the initial decision, pursuant to Rule 18.2(a). This breach was not remedied in the reconsideration decision. As such, both decisions are cancelled in accordance with Rule 18.4.

Decisions Under Review

13At paragraphs 10 – 13 of the initial decision, the adjudicator addressed the applicant’s oral motion to exclude all of Dr. Mohamed Khaled’s s. 44 reports. The basis of this motion was the applicant’s complaint that Dr. Khaled did “not attend to testify” at the hearing. The respondent opposed the motion, claiming that the applicant had plenty of notice of its intention to rely on this evidence, and it would be procedurally unfair to disallow it from relying on the reports.

14The adjudicator dismissed the motion, finding the applicant “had notice of the respondent’s intention to submit Dr. Khaled’s reports for a significant period of time and first requested their exclusion at the hearing”. He further concluded that it would be unfair to require the respondent to proceed without the reports, and the applicant had not shown it “will suffer prejudice by their admission.”

15Following on this ruling, the adjudicator went on to rely on the opinion of Dr. Khaled in several sections of the initial decision.

16In her reconsideration request, one of the alleged errors claimed by the applicant under Rule 18.2(b) was the adjudicator’s “acceptance of Dr. Khaled’s s.44 reports, without permitting cross-examination”. This ground, along with the rest of the request, was dismissed. Specifically, the adjudicator found at paragraph 21 of the reconsideration decision:

Lastly, during the hearing I heard submissions from the parties on the inclusion of Dr. Khalid’s [sic] s.44 reports as evidence. At paragraphs 10 to 13 of my decision, I found that Dr. Khalid’s [sic] reports could be admitted as evidence even if he was not called as a witness by the respondent and the applicant was having difficulty getting Dr. Khalid [sic], who was summoned by the applicant, to appear before the Tribunal and give testimony. I made no error of law in allowing Dr. Khalid’s [sic] report to be admitted pursuant to s. 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

17The applicant has filed a Notice of Appeal and an Application for Judicial Review concerning this proceeding.

Parties’ Positions

18In response to the Tribunal’s Rule 18.5 review, the applicant submits that the initial decision constitutes a material breach of procedural fairness. Parties have the right to be heard, yet, according to the applicant, several issues she raised were not addressed. Further, by citing recent Divisional Court cases such as Plante v. Economical Insurance Company, 2024 ONSC 7171 (“Plante”), the applicant claims the right to be heard includes the right to cross-examine the authors of expert reports.

19Beyond her submissions about the substance of the decisions, the applicant also commented on the Rule 18.5 review itself. Though she “welcomes reconsideration of the decision”, the applicant “invites the LAT to be transparent to the judicial panel about why the review is being sought, why it is sought at this time, and any new position the LAT may have on the matter.” The applicant also made several comments about the principle of functus officio, and she asked the Tribunal for the “costs and disbursements of the proceedings”. These additional requests will be addressed below.

20The respondent submits that the initial decision and the reconsideration decision should both stand. While the applicant claims that the adjudicator was not responsive to her case, the respondent contends that there was no need for him to address “every constituent part of [her] evidence or submissions.” Rather, the respondent submits that the adjudicator’s reasons show he did “grapple heavily with basic entitlement to various accidents benefits”, and he did so with many references to the evidence (all of which accorded with his discretion under the Rules and the Statutory Powers Procedure Act).

21On the specific question of Dr. Khaled’s reports, the respondent submits that the applicant has mischaracterized this part of the decision as a refusal to allow for cross-examination. According to the respondent, there was no refusal. Instead, the applicant listed Dr. Khaled on her witness list, obtained a summons, and then attended the hearing with “no evidence whatsoever that [she] served Dr. Khaled personally with the summons”. Additionally, the respondent claims that the applicant later asked for the respondent to undertake to call Dr. Khaled (which it did not undertake), and then brought a motion for exclusion (as opposed to requesting an adjournment to allow for service of the summons). Further, the respondent challenges the applicant’s reliance on her case law, claiming that the facts of these prior cases are significantly different than the matter at hand.

22In the alternative, the respondent submits that, even if a breach is found, Dr. Khaled’s evidence was “not determinative to [the adjudicator’s] decisions on the issues in dispute”. Beyond the fact that this evidence was not referenced in his denials of the ACB, HHB, and a number of medical benefits, the respondent claims that, even when his opinion was referenced, the adjudicator did not rely heavily on this evidence. Finally, the respondent adds that Dr. Khaled’s reports were treated in a similar fashion to the applicant’s late-filed evidence from Dr. R. Van Reekum (who was also not presented for cross-examination).

23The respondent did not expressly address the applicant’s requests for additional information about the Rule 18.5 review, nor did it mention her request for costs and disbursements.

24In reply, the applicant claims she provided the respondent with ample notice of her intention to challenge the opinion of Dr. Khaled. The applicant also highlights the inclusion of Dr. Khaled on the respondent’s witness list (dated May 26, 2023).

Analysis

25By admitting Dr. Khaled’s expert evidence into the hearing (evidence that he later went on to rely on in his denial of several benefits), I find the adjudicator committed a material breach of procedural fairness, pursuant to Rule 18.2(a). This breach was not remedied in the reconsideration decision.

26Dr. Khaled’s evidence played a key role in the adjudicator’s denial of several treatment plans. For instance, at paragraphs 43 – 45 of the initial decision, the adjudicator explained his denial of the occupational therapy services treatment plan (dated January 27, 2021) as follows [emphasis added]:

The applicant submits that the OT plan dated January 27, 2021, is reasonable and necessary because its goal is to promote her safety and re-engagement in pre-accident activities including self-care with a view to return to her activities of normal living.

In its denial letter dated February 10, 2021, the respondent relied on the findings of Dr. Khaled, general physician, in his s. 44 report dated December 9, 2020. Dr. Khaled indicated that from his physical examination he did not identify any valid indicators to support residual or ongoing or permanent musculoskeletal, neurological or orthopedic accident-related injury or impairment. He also stated that there is no objective evidence of ongoing permanent accident-related impairment and concluded that the treatment plan was not reasonable and necessary.

I find that Dr. Khaled’s opinion is more consistent with the bulk of the other evidence. As mentioned earlier, none of the application’s treating healthcare professionals at the time recommended that she would benefit from OT services to promote her safety and re-engagement in pre-accident activities. In addition, an OCF-18 is not sufficient on its own to prove that the treatment is reasonable and necessary. There needs to be contemporaneous evidence in support of the OCF-18, and I have not been directed to evidence to support that the applicant requires this treatment. Therefore, I am not persuaded that this OT treatment plan is reasonable and necessary.

27Similar findings were used by the adjudicator to deny the two treatment plans for case management services: see paragraphs 52 and 53 of the initial decision.

28I accept the respondent’s comment that this evidence did not factor into the adjudicator’s denials of the ACB, HHB, and a number of medical benefits. However, as the quotation above demonstrates, the adjudicator relied heavily on this evidence to reach his conclusions about several disputed treatment plans. The centrality of this opinion in his reasons, therefore, shows the adjudicator materially breached the applicant’s right to procedural fairness by admitting this evidence without then allowing the applicant to test it through cross-examination.

29A key aspect of procedural fairness is to ensure that all parties have a fair chance to respond to the other side’s arguments and evidence. As noted by the Court in Plante, cross-examination is an essential tool for testing the veracity of a party’s evidence. By not allowing the applicant to use this tool to test Dr. Khaled’s expert opinion—an opinion that went on to form a key part of the resulting decision—the adjudicator breached the applicant’s right to procedural fairness.

30I recognize the expansive control over the admission of evidence that is provided to the Tribunal through both its Rules and the Statutory Powers Procedure Act. This authority allows the Tribunal to handle documents and testimony in a manner that does not require strict adherence to the courts’ evidentiary rules—flexibility that aligns with the more responsive nature of administrative justice.

31However, despite this broad discretion, the Tribunal is still required to protect a party’s right to procedural fairness. Dr. Khaled’s non-attendance at the hearing—non-attendance that deprived the applicant of her right to test his opinion through cross-examination—should have resulted in the exclusion of his reports. That was the only reasonable option available to the adjudicator to ensure that the hearing was conducted in a procedurally fair fashion for both parties.

32I also do not accept the respondent’s position that it was unreasonable for the applicant to believe that Dr. Khaled would have been present for cross-examination. While it is not clear whether the respondent was aware of the efforts the applicant made to summons this expert, I find Dr. Khaled’s inclusion on the respondent’s witness list provided the applicant with reasonable grounds to assume he would testify. I also note that the correspondence sent by applicant’s counsel to respondent’s counsel during the hearing (i.e., e-mail dated June 28, 2023) provides further proof to show that the applicant assumed the witness would attend. Therefore, when Dr. Khaled did not appear, the procedurally fair way to proceed was for the adjudicator to accept her motion to exclude his reports.

33In a similar vein, I do not accept the respondent’s submission that the applicant should have requested an adjournment. Once again, the applicant could have reasonably assumed that the respondent would call Dr. Khaled, as he was included on its witness list. It was not reasonable to then expect the applicant to delay this proceeding—a delay that would have prejudiced her right to a timely determination of her claim.

34Turning to the applicant’s case law and the respondent’s contention that the circumstances in these Divisional Court cases are not analogous to the present dispute, I find it is not necessary for me to assess this argument. Aside from accepting the well-established principle stated in Plante about the importance of cross-examination, I find the applicant’s case law is not needed to establish a material breach of procedural fairness in this matter.

35Finally, I do not accept the respondent’s proposition that the adjudicator’s handling of the applicant’s expert evidence from Dr. Van Reekum nullifies my findings of procedural unfairness. The Tribunal’s obligation to protect the parties’ right to procedural fairness is not a balancing act of potential wrongs. Each party has a right to be heard, and, when that right is infringed in a manner that deprives them of the ability to meet the case at hand, a material breach of procedural fairness has been established.

36Overall, I am satisfied that the adjudicator committed a material breach of procedural fairness in the initial decision, and he did not rectify this breach in the reconsideration decision. Considering this finding, it is not necessary to address the other grounds the applicant raised in her Rule 18.5 review submissions.

37Due to the adjudicator’s reliance on Dr. Khaled’s evidence to deny several of the disputed benefits (evidence that was admitted without cross-examination), I find the most appropriate remedy under Rule 18.4 is to cancel both the initial decision and the reconsideration decision.

Applicant’s Additional Requests

38As noted above, the applicant asked for several other forms of relief in her Rule 18.5 review submissions. Specifically, she is asking the Tribunal to provide the “judicial panel” with more information about this review, including information about its timing and purpose. She is also asking for the “costs and disbursements of the proceedings”. Then, in this same section of her submissions, the applicant made several comments about the principle of functus officio. Briefly, by citing Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33 (“CBC”), the applicant contends that “this proceeding is likely functus”.

39Starting with the request for more information about this review, I find this request is now moot. The Rule 18.5 review has concluded. Any information that a future judicial panel may require about this process will be available in this decision.

40In a similar vein, I do not find the applicant has established that the Tribunal is functus officio. While I accept that the Supreme Court places significant importance on the finality of decision-making in CBC, the majority also notes that statutes may empower a court to revisit a final decision: see paragraph 33, citing, in part, Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC). Section 21.2 of the Statutory Powers Procedure Act is the statutory basis for the Tribunal’s Rule 18.5 reviews.

41Finally, regarding the request for costs and disbursements, the applicant has not presented any legal authority for the Tribunal to cover her expenses for any part of this proceeding. I also see no comparable situation in which a tribunal would absorb the legal expenses for the parties, even when the Divisional Court orders a rehearing based on a breach of procedural fairness. The remedy in this case is the rehearing.

CONCLUSION & ORDER

42The reconsideration initiated under Rule 18.5 is granted.

43The initial decision and the reconsideration decision are cancelled, pursuant to Rule 18.4.

44The dispute will be sent to a rehearing.

45A case conference will be scheduled within 30 days of the release of this reconsideration decision so that the Tribunal may issue procedural and administrative directions as necessary for the conduct of the hearing.

46The Tribunal shall reach out to the parties to canvass dates for the case conference.

47The further requests made by the applicant in her Rule 18.5 review submissions are dismissed.

Craig Mazerolle

Vice-Chair

Tribunals Ontario – Licence Appeal Tribunal