RECONSIDERATION DECISION
Before:
Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number:
24-003172/AABS
Case Name:
Norman Vanstone-Neufeld v. Belair Insurance Company Inc.
Written Submissions by:
For the Applicant:
Nancy M. McAuley, Counsel
For the Respondent:
Kevin Mitchell, Counsel
OVERVIEW
1On June 5, 2025, the applicant requested reconsideration of the Tribunal’s decision released May 15, 2025 (“decision”).
2Stemming from an accident on July 23, 2020 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 an eight-day videoconference hearing. In the decision, the adjudicator found the applicant was entitled to an income replacement benefit and interest. However, the adjudicator did not find the applicant had established a catastrophic impairment pursuant to Criterion 8.
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 relies on Rule 18.2(a) and Rule 18.2(b) to support his request for reconsideration. He is seeking to vary the decision to find he is catastrophically impaired. Or, in the alternative, he is seeking a rehearing on this issue.
5The respondent asks the Tribunal to dismiss the request.
RESULT
6The applicant’s request for reconsideration is dismissed.
ANALYSIS
7The 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) – Procedural Fairness
8I find the applicant has not established a material breach of procedural fairness, pursuant to Rule 18.2(a).
9The applicant contends that the adjudicator materially breached his right to procedural fairness in three ways. First, the applicant claims that the decision does not provide “fulsome, clear or adequate reasoning” to explain the basis of the catastrophic impairment ruling. Specifically, the applicant argues that the adjudicator did not adequately grapple with the evidence (especially the witness testimony), nor did he provide a finding about two of the four domains under Criterion 8. Second, the applicant claims the adjudicator “interfered” with his counsel during the hearing and “displayed bias”. Examples of this interference include: imposing time limits on witness testimony and submissions; interrupting his counsel; and “repeatedly refusing to hear, or provide decisions on, submissions on procedural and substantive issues”. Finally, the applicant claims that the adjudicator did not adequately address the respondent’s breach of certain production orders from the case conference.
10Starting with the sufficiency of the adjudicator’s reasons, I find the applicant has not demonstrated that the decision fails to provide “fulsome, clear or adequate reasoning” about catastrophic impairment. Rather, in reviewing the decision, I conclude there is a clear explanation of the adjudicator’s line of reasoning as it relates to Criterion 8.
11As noted in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, reasons ensure the fairness and legitimacy of administrative decision-making (at paragraph 79, citations removed):
Reasons explain how and why a decision was made. They help to show affected parties that their arguments have been considered and demonstrate that the decision was made in a fair and lawful manner. Reasons shield against arbitrariness as well as the perception of arbitrariness in the exercise of public power.
12Further, as the Supreme Court of Canada stated in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, reasons allow decisions to be questioned (at paragraph 39): “Reasons are invaluable if a decision is to be appealed, questioned, or considered on judicial review”.
13With these considerations in mind, I find the adjudicator’s reasons adequately explain the decision-making process such that his conclusions are justified and do not appear arbitrary. They also allow for review.
14The applicant argues that the decision does not adequately grapple with the parties’ oral and documentary evidence, including the credibility of the witnesses. The applicant further alleges that it was improper for the adjudicator to base his decision about Criterion 8 solely on the domain of social functioning. I find neither of these allegations demonstrate that there were insufficient reasons.
15When discussing his findings regarding catastrophic impairment, there are extensive and detailed descriptions of the evidence, with references to both documentary and oral evidence. There are also explanations about the assignment of weight to this evidence, and there is a clear chain of reasoning that connects these evidentiary assessments to the adjudicator’s conclusions. Taken together, the reasons demonstrate that the adjudicator adequately engaged with the parties’ arguments and evidence in rendering this decision.
16I also note that the adjudicator’s choice to limit his analysis to the domain of social functioning made sense within the context of the case. With no extreme impairment being argued, Criterion 8 requires an insured person to demonstrate marked impairments in at least three of the four domains of human activity listed in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”). The parties agreed that the applicant did not sustain a marked impairment for activities of daily living, meaning he had to meet this threshold in all three of the remaining domains. By not establishing a marked impairment for social functioning, it was not necessary for the adjudicator to render an impairment rating for the other two domains.
17Further, I do not find the applicant’s argument about the need for these impairment assessments is compelling. Briefly, the applicant submits that the adjudicator’s choice not to assess the impairment ratings for the remaining two domains means that the matter will have to be reheard in full, which “would cause significant financial burden”. The potential impact that an adjudicator’s ruling may have on the parties if a decision is eventually overturned is not a relevant consideration when determining the procedural fairness of said decision.
18Turning to bias, I do not find the applicant has met the high threshold needed to establish this ground. The test for a reasonable apprehension of bias was set out by the Supreme Court in the oft-cited case of Committee for Justice and Liberty v. Canada, 1976 CanLII 2 (SCC), at page 394:
[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
19In Wewaykum Indian Band v. Canada, 2003 S.C.R. 45, at paragraph 59, the Supreme Court confirmed the existence and importance of a strong presumption of judicial or quasi-judicial impartiality. To overcome this presumption, the party alleging bias has the onus to establish the presence of serious and substantial grounds.
20Though the applicant made several allegations regarding the adjudicator’s conduct, there are no specific examples of this alleged behaviour identified in the hearing transcript. For instance, while the applicant claims there were submissions on procedural and substantive issues that the adjudicator refused “to hear, or provide decisions on”, no examples were highlighted. The onus to establish bias rests with the applicant, and I find he has not met this onus.
21Finally, I am not satisfied that the applicant has shown that the adjudicator did not adequately address the respondent’s breach of certain production orders. The applicant argues that, despite being ordered to produce the complete files of its experts, the respondent did not comply. By accepting the evidence of the respondent’s psychologists, Drs. Derry and Out, the adjudicator “denied the opportunity to review and respond to the content of these files”. The applicant also claims that the adjudicator’s decision to assign less weight to the evidence of David Morris, kinesiologist, was an “insufficient remedy”.
22The procedural complaints about the evidence from Drs. Derry and Out does not reach the threshold necessary for engaging Rule 18.2(a). As detailed at paragraphs 11 – 15 of the decision, the adjudicator conducted a review of the disclosure provided by these experts, which included consideration of the overlap between their evidence. After this review, the adjudicator reached the following conclusion at paragraph 15:
I accept Dr. Out’s testimony that she only produced two reports and that both had been disclosed to the applicant in accordance with the Case Conference Report and Order. Further, Dr. Derry’s quoted passage in his document review from Dr. Out’s report is identical to that of the reports that had been disclosed to the applicant in accordance with the Case Conference Order and Report. Therefore, there is no prejudice to the applicant as the passage referenced and relied upon by Dr. Derry is identical to the language found in Dr. Out’s report previously disclosed to the applicant. Accordingly, I do not diminish any weight to the reports of Dr. Derry and Dr. Out.
23Adjudicators have the discretion to control the hearing process, which includes addressing breaches of procedural orders. In this case, I am satisfied that the adjudicator exercised his discretion in a fair and balanced manner that accounted for the available facts, the parties’ submissions, and the overall nature of the dispute. I see no issue with this approach.
24Then, not only did the adjudicator expressly note at paragraph 63 that the evidence of Mr. Morris would receive “little weight” due to the production order breach, but this evidence also appears to have only played a role in the analysis of the income replacement benefit. The applicant was successful on this issue.
25Taken together, I find the applicant has not established a material breach of procedural fairness, pursuant to Rule 18.2(a).
Rule 18.2(b) – Errors of Fact or Law
26I find the applicant has not established an error of fact or law, pursuant to Rule 18.2(b).
27The applicant’s arguments regarding Rule 18.2(b) can be broken into the following categories: the impact of the applicant’s cognitive condition and his ability to cope with pain; the legal test for Criterion 8; the adjudicator’s understanding of the applicant’s social interactions; and the adjudicator’s finding that the applicant did not establish an extreme impairment. The applicant also submits that the adjudicator incorrectly placed more weight on the report of the respondent’s psychologist, Dr. Derry, as opposed to the report from his psychiatrist, Dr. Meghji.
28First, I find the applicant has not shown how the adjudicator’s assessment of his cognitive condition and ability to cope with pain constitutes an error pursuant to Rule 18.2(b). According to the applicant, the adjudicator incorrectly relied on “Dr Derry’s significantly narrowed approach” when assessing his mental and behavioural impairments, despite this assessor’s concession that the impact of a mild traumatic brain injury was outside his expertise (and, in turn, left out of his ratings). The applicant argues that Dr. Derry’s opinion is flawed, “given the interplay and similar nature of the symptoms and impairments associated with depression, anxiety, concussion, and neurocognitive disorder”.
29In reviewing the adjudicator’s analysis of the domain of social functioning, he placed significant weight on the functional capacities of the applicant, not the opinion of Dr. Derry. There is a comment made at paragraph 32 about how the adjudicator placed “more weight on the reports of Dr. Derry”, but I find these reports play little role in the actual determination of this domain. Therefore, while the applicant may claim that reliance on Dr. Derry’s reports necessarily means that the adjudicator’s analysis is flawed, I do not agree. The adjudicator’s focus in this domain was the evidence about the applicant’s observed and self-described capacity for social interactions, family life, etc. As such, even if I found he had established an error in this regard, the applicant has not shown how fully accounting for the impact of the mild traumatic brain injury (and coping with pain) would likely have impacted the adjudicator’s analysis.
30Second, I find the applicant has not shown how the adjudicator erred in his application of the legal test for Criterion 8. The applicant alleges that the adjudicator committed a legal error by applying a higher standard than what the Guides require when assessing whether there is a marked impairment under Criterion 8. Specifically, the applicant claims the adjudicator worked from the assumption that a marked impairment requires the insured person to show that they are precluded from “all” useful functioning, while the Guides only require useful functioning to be “significantly” impeded. The applicant further submits that Dr. Derry made the same error in rendering his ratings.
31I do not find the applicant has established an error in this regard. Several times throughout the social functioning portion of the decision, the adjudicator clearly states that the standard he needs to apply is whether useful functioning has been significantly impeded. In addition to referencing this language when summarizing the different classes of impairment at paragraph 22, the adjudicator uses this standard when assessing the evidence of the applicant’s social interactions at paragraphs 45, 50, 51, 54, and 55. I see no error in this analysis. Additionally, the applicant has not established how an alleged error in Dr. Derry’s understanding of Criterion 8 would impact the adjudicator’s analysis, as the adjudicator’s consistent references to significant impediment demonstrate that he turned his mind to the correct legal test.
32Regarding the alleged errors in the adjudicator’s analysis of social functioning, I again find the applicant has not established a ground for reconsideration. The applicant describes several concerns he has with the adjudicator’s understanding of his social interactions, e.g., improperly focusing on his ability to marry his wife; incorrectly stating that his relationship with his spouse has strengthened; ignoring his need for a “structured setting”, etc. The applicant also makes a general comment about the scope of the adjudicator’s evidentiary review, namely, he “failed to consider the overall degree of restriction or combination of restrictions in social function” as required by the Guides and Tribunal case law.
33In paragraphs 38 – 56 of the decision, the adjudicator engages in a detailed review of the evidence concerning the applicant’s capacity for social interactions. This analysis includes: the applicant’s testimony; his wife’s testimony; surveillance; evidence from the parties’ occupational therapy assessors; and the reports of Drs. Derry and Meghji. This assessment is comprehensive in scope, and there are reasons provided for why certain amounts of weight are assigned to different pieces of evidence—reasons that include engagement with the Guides. There are also explanations for why findings that may support the applicant’s position were incorporated into the adjudicator’s conclusion about this domain, e.g., the applicant’s irritability is addressed at paragraph 45. I also note that Tribunal case law is not binding on the adjudicator’s reasons.
34Reconsiderations are not an opportunity for parties to dispute the weight assigned to evidence at first instance. Rather, requesting parties must show that there is an error in an adjudicator’s handling of the evidence, and that this error would likely have impacted the decision. The applicant has not met this standard.
35There is also a suggestion that the adjudicator ignored the applicant’s demeanor during his testimony, including his wife’s assertion that he was quite ill and exhausted the day after. It is well-established that adjudicators are not expected to address every piece of evidence. Rather, an adjudicator must show that they grappled with the key evidence and arguments presented during the hearing. As noted above, I find the adjudicator’s reasons show he engaged in a comprehensive analysis of the evidence, and I am further satisfied that he performed a detailed review of the relevant findings and observations needed to help him reach his conclusion about the domain of social functioning.
36Then, while the applicant argues that the adjudicator should have turned his mind to whether there was an extreme impairment (as one Class 5 impairment will establish catastrophic impairment under Criterion 8), I do not find his pinpoint references in the hearing transcript are sufficient to establish such a rating. The applicant highlights several answers from Dr. Derry where he is interpreting the findings of Matt Sutherland, occupational therapist, notably, Mr. Sutherland’s observations of “severe” limitations with certain activities. According to the applicant, ignoring these references amounts to “the Adjudicator’s failure to deem [him] catastrophically impaired on the basis of there being one Class 5, Extreme Impairment”.
37Aside from the fact that experts should remain within the four corners of their reports (such that it would often be improper for an adjudicator to rely on several responses made during testimony to establish a new impairment rating), I find the answers highlighted by the applicant do not support his position. Put another way, they do not show these experts definitively stating that the applicant has a Class 5 impairment.
38For instance, when asked about ratings “in respect of concentration, persistence, pace and adaptation”, Mr. Sutherland noted that some activities were done without impairment, while others were done with impairments ranging from mild to severe. I accept that he found some of the applicant’s activities were severely impaired (e.g., completing “less structured or unfamiliar tasks”), but the answers highlighted by the applicant do not suggest that Mr. Sutherland was implicitly putting forward an opinion that the applicant sustained a Class 5 impairment. As such, I see no error in the adjudicator’s decision not to pursue this line of reasoning.
39Finally, regarding the argument about the weight placed on the competing reports from Drs. Derry and Meghji, I again find that this position amounts to a request to re-weigh evidence considered at first instance. The comparison between these two reports is largely confined to paragraphs 27, 28, and 31 – 33 of the decision, wherein the adjudicator lays out brief summaries of these opinions and then concludes that the testing regime underpinning Dr. Derry’s report was more comprehensive. The applicant raises several issues with this determination (e.g., improper focus on testing; Dr. Derry’s lack of information about social interactions, etc.), but I find these are complaints about the result of the adjudicator’s weighing, not specific errors in the adjudicator’s analysis of the reports. As noted above, the reconsideration process is not a venue to re-weigh evidence, as disagreement alone with a finding is not sufficient to trigger Rule 18.2(b).
CONCLUSION & ORDER
40The applicant’s request for reconsideration is dismissed.
Craig Mazerolle
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: September 19, 2025