Mike Gagne v. Wawanesa Mutual Insurance Company, 2025 CanLII 97764

Licence Appeal Tribunal

Citation: Gagne v. Wawanesa Mutual Insurance Company, 2025 ONLAT 23-002591/AABS-R

RECONSIDERATION DECISION

Before: Brian Norris

Licence Appeal Tribunal File Number: 23-002591/AABS

Case Name: Mike Gagne v. Wawanesa Mutual Insurance Company

Written Submissions by:

For the Applicant: John W. Wowk, Counsel

For the Respondent: Elizabeth Scott, Counsel

OVERVIEW

1This request for reconsideration was filed by Wawanesa Mutual Insurance Company (“the Respondent”). It arises out of a decision, dated April 9, 2025 (‘the decision”). In the decision, I found that Mike Gagne (“the Applicant”) was entitled to income replacement benefits (“IRBs”), subject to deductions for post-accident income earned, plus interest. I also found that the Respondent was not entitled to a repayment of IRBs, because the Respondent was, instead, permitted to deduct post-accident income.

2The Respondent submits that I violated the rules of procedural fairness and/or made errors of law or fact that, had they not been made, would likley have led the Tribunal to a different result.

RESULT

3The Respondent’s request for reconsideration is granted because I made an error of fact and violated the rules of procedural fairness that would result in a different outcome had the error not been made.

4The decision is varied to conclude that the Applicant has not met his onus to demonstrate that he is entitled to IRBs for the period from December 16, 2021, to-date and ongoing. No interest is payable.

5The decision is varied to reflect that the Respondent is entitled to a repayment of benefits in the amount of $1,200.00, representing IRBs paid during the period from May 3, 2021 to May 24, 2021.

THE LAW

6The grounds for a request for reconsideration are found 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;

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.

7Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.

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.

BACKGROUND AND POSITIONS

9The Applicant was the driver of a vehicle which was struck by another vehicle while making a turn on a rural highway. He was initially diagnosed with a shoulder strain but developed tendonitis and bursitis later. The Applicant’s family physician, Dr. U. Barry, completed a disability certificate, dated July 22, 2021, and certified that the Applicant is unable to work as a machinist due to pain and a restriction of movement.

10The Respondent paid IRBs to the Applicant due to his inability to work. It stopped payment, effective December 16, 2021, following a series of insurer’s examinations (“IEs”). In the decision, I concluded that the Applicant suffered a complete inability to complete the essential tasks of any employment that is suitable for him by way of education, experience, and training.

11The Respondent submits that I made an error of fact such that the Tribunal would likely have reached a different result had the error not been made. Specifically, it submits that I erred in paragraph [28] of the decision when I concluded that Dr. Barry’s refusal to certify the Applicant for heavy lifting and carrying, was dated June 7, 2022. It submits that the clinical entry relates to a visit on September 29, 2021. To the Respondent, this error is important when considering the timeline of the Applicant’s post-accident employment.

12The Respondent also submits that I violated the rules of procedural fairness in considering additional evidence provided in the Applicant’s reply submissions. It submits that I admitted and relied upon an offer of employment that was improperly disclosed by the Applicant in reply submissions. To the Respondent, reply submissions are not an opportunity to introduce new evidence.

13The Applicant agrees that I erred in citing the incorrect date of Dr. Barry’s clinical note but submits that the error is not significant enough to reach a different conclusion because, to him, the 8 months difference is immaterial. He further submits that there is no breach of procedural fairness in his reply submissions because the evidence provided in them was provided as soon as it was received and that he was simply fulfilling his production obligations. He also submits that the Respondent ought to have raised the issue at the time it discovered the breach, not on reconsideration.

14Central to my conclusion was that I gave significant weight to the opinion of Dr. Barry, noting that Dr. Barry refused to certify the Applicant for heavy lifting and carrying for employment on June 7, 2022. At paragraph [28] of the decision, I found that Dr. Barry would not approve the Applicant for heavy work, despite the Applicant’s request for the approval. I erred in making this finding because the timing of the refusal was incorrect. Instead, that recommendation occurred on September 29, 2021.

15Similarly, another component of my decision was that at paragraph [12] I relied on the improperly disclosed evidence to conclude that the Applicant started employment on or around October 4, 2021. I compounded the error by concluding that his employment at that time was as a “journeyman machinist”, when his full title was “journeyman machinist, shift lead hand”.

16The erroneous finding and improperly admitted evidence were pivotal to my determination that the Applicant was unable to complete the essential tasks of his employment, and that he was unable to engage in any employment or self-employment for which he is reasonably suited by way of education, training, or experience.

17As I will outline below, I find I would have reached a different decision had the errors not been made. Accordingly, I find that the Applicant has not met his onus to demonstrate that he is entitled to IRBs as claimed.

18Likewise, the Respondent’s entitlement to a repayment of IRBs paid to the Applicant is varied to reflect that it is entitled to a repayment of IRBs instead of a deduction of IRBs payable.

ANALYSIS

19For the following reasons, I find that I committed errors of fact in the initial decision that would result in a different outcome had the errors not occurred.

20The Respondent is correct that I erred in my determination at para [28] that Dr. Barry refused to certify the Applicant for heavy lifting and carrying for employment in 2022. Upon further review, I find that the recommendation occurred on September 29, 2021, not June 7, 2022. I further erred in concluding at para [23] that the Applicant’s employment as a foreman at a machine shop included heavy labour because the evidence does not support that finding. Rather, on reconsideration, I find that there is insufficient evidence to suggest that the Applicant’s employment as a foreman included heavy labour.

21I agree with the Respondent that I erred in considering evidence submitted with reply submissions that was disclosed late and not in accordance with Tribunal orders. In my decision, I considered an employment document which was received by the Applicant after he received responding submissions from the Respondent. I should have excluded the evidence or sought additional submissions from the Respondent about this fresh evidence – I did neither in this case and that was a violation of procedural fairness because the Respondent was not afforded an opportunity to address the evidence at the hearing.

22Moreover, I erred in my interpretation of the evidence submitted in reply. I found at para [14] that the employment document suggested that the Applicant’s role in autumn 2021 was that of a journeyman machinist. However, on reconsideration, I find that the document states that the role is a shift lead hand role, indicating that the role is more likely a foreman-type, or supervisory role.

23The errors I committed caused me to underestimate the Applicant’s employment experience as a foreman or shift supervisor, and his ability to perform the essential tasks in those roles as a result of his accident-related impairments. In my initial decision, I wrongly concluded that the Applicant’s experience as a foreman occurred during the period from November 2022 to January 2023. Instead, on reconsideration, I conclude that the Applicant was employed as a foreman or shift supervisor for the period from October 2021 until December 2021.

24This error also caused me to erroneously find that the Applicant’s right shoulder impairment was impeding his employment as late as June 2022. Upon review, I agree with the Respondent that, after December 2021, Dr. Barry’s CNRs do not indicate that the Applicant’s right shoulder impairment precludes his ability to work. In fact, according to the Applicant’s submissions, he found new employment in August 2022, again in December 2022, and again in August 2023. The records from these employers do not suggest that the Applicant was impaired from working due to restricted right shoulder range of motion (“ROM”) or heaving lifting and carrying restrictions.

25In finding no compelling evidence that the Applicant’s right shoulder was precluding him from completing the essential tasks of his employment as a shift supervisor or foreman, and no evidence of right shoulder complaints to Dr. Barry after December 2021, I now place greater weight on the medical notes of Dr. C. Lu, gastroenterologist. Dr. Lu advised the Applicant to stop working around January 11, 2023, due to chronic gastrointestinal issues, which are unrelated to the accident. Dr. Lu’s recommendation continued from January 2023 until August 2023. Having accounted for my errors, I now find that Dr. Lu’s recommendations detract from the argument that the Applicant’s shoulder is impairing him from work.

26I compounded my error by incorrectly concluding that employment as a foreman or shift supervisor required greater physical ability than what the Applicant is capable of. It remains true that in autumn 2021 the Applicant’s employer in sought information regarding his medical condition and accommodations, if any, for work as a foreman. However, Dr. Barry’s CNRs suggest that Dr. Barry completed the employment form, which included notice that the Applicant was not certified for heavy lifting and carrying but imposed no medical restrictions for operating heavy machinery. This is critical because the company hired the Applicant despite not being certified for heavy lifting and carrying. This evidence indicates that the Applicant can complete the essential tasks of a foreman or shift supervisor. In a follow-up visit between Dr. Barry and the Applicant, on November 3, 2021, it was noted that the Applicant went back to work and Dr. Barry characterized it as “so far so good”. There are no employment records from this employer which suggests that the Applicant was unable to complete the essential tasks of a foreman or shift supervisor as a result of impairments sustained in the accident.

27On reconsideration, I now conclude that the Applicant tendered no evidence after December 2021 to confirm that he is impaired from working due to right shoulder impairments and that he was employed as a foreman or shift supervisor in the autumn 2021 – despite not being medically approved for heavy lifting and carrying. I further conclude that the Applicant’s time away from employment in 2023 was related solely to gastrointestinal issues and not ongoing shoulder impairments. Thus, I find that the Applicant has not demonstrated that he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.

28It stands that I made errors of fact and violated the rules of procedural fairness that would result in a different outcome had the errors not been made. Accordingly, I vary my initial decision and conclude that the Applicant has not met his onus to demonstrate that he is entitled to IRBs for the period claimed.

Repayment of IRBs

29In my initial decision, I found that the Respondent was not entitled to a repayment of IRBs because it had not established that the Applicant materially misrepresented his employment status. Instead, I found that the Respondent was entitled to a deduction of benefits paid during the period, as the Applicant continued to be entitled to IRBs.

30The Respondent submits that it was an error of law to not consider its repayment claim. It submits that the dispute regarding the Applicant’s entitlement to IRBs spanned the period from December 16, 2021 onwards, and that the repayment claim relates to payments made during the period from May 3 to May 24, 2021, which pre-dates the claim for IRBs, and is therefore a separate issue.

31The Applicant submits that dismissing the issue of repayment of IRBs and, instead, finding that the Respondent was entitled to a deduction of post-accident income is correct because the Respondent failed to show that the Applicant materially misrepresented his employment status in order to claim IRBs.

32I agree with the Respondent that I erred in concluding that the Respondent needed to demonstrate material misrepresentation to be entitled to a repayment of benefits. I find that this error of law would have led to a different result had it not occurred because the repayment request relates to a period which pre-dates the Applicant’s claim before the Tribunal. I must vary my decision to reflect the correct resolution of the dispute.

33Section 52(1)(c) of the Schedule provides that the Applicant is liable to repay to the Respondent, any IRBs paid to the extent that any payments received by the Applicant are deductible from the amount of benefit. Section 52(3) limits the time for which the Respondent can claim a repayment to 12 months, unless the benefit was paid to the Applicant as a result of willful misrepresentation or fraud. In situations where the payment was made in error, the time is limited to one year prior to the request. There is no time limit if the payment was made as a result of misrepresentation.

34In this case, there is no requirement outlined in the Schedule for a finding that the Applicant materially misrepresented his employment status for the Respondent to be entitled to a repayment. This is because the repayment period spans from May 3 to May 24, 2021, and the repayment request was made on June 4, 2021. The request is about a month after the overpayment and well within the one-year requirement outlined in section 52. It was an error of law for me to find that the Respondent was required to establish material misrepresentation to be entitled to a repayment of IRBs because its notice was delivered within the statutory period.

35In the initial decision, I found that the Respondent was entitled to a deduction in IRBs payable, pursuant to section 7(3)(a) of the Schedule. That section provides that the Respondent is entitled to a deduction for the income earned by the Applicant during the period from May 3 to May 24, 2021. The amount of the deduction is capped at 70% of the gross income received during that period.

36I would have reached a slightly different result but for the error of law. Given that the Applicant met the eligibility test for IRBs during the period of overpayment, it follows that the Respondent would be entitled to a deduction of IRBs payable totaling no more than 70% of the income earned during the period. This is essentially the result I reached in the initial decision. However, as I have now found that the Applicant is not entitled to ongoing IRBs, it follows that the Respondent would not be entitled to a deduction of IRBs payable, but instead it is entitled to a repayment of IRBs paid during the period the Applicant went back to work and fully mitigated his income loss.

37Accordingly, I vary my decision to reflect that the Respondent is entitled to a repayment of IRBs in the amount of 70% of the income earned during the period from May 3 to May 24, 2021. The Applicant’s employment documents confirm that he earned income during the period, and that the 70% deduction amounts to more than the $400.00 weekly payments made by the Respondent. It follows then that the Respondent is entitled to a repayment of IRBs in the amount of $1,200.00, representing payments for IRBs made during the period from May 3 to May 24, 2021.

CONCLUSION & ORDER

38The Respondent’s request for reconsideration is granted due to errors of fact and law and a violation of procedural fairness that would lead to a different result had they not occurred.

39The initial decision is varied to reflect that the Applicant has not met his onus to demonstrate that he is entitled to IRBs for the period from December 16, 2021 to-date and ongoing.

40As no further payments for IRBs are owed, the initial decision is varied to reflect that the Respondent is entitled to a repayment of IRBs in the amount of $1,200.00.

Brian Norris Adjudicator Tribunals Ontario – Licence Appeal Tribunal