RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 24-003359/AABS
Case Name: Ajani Hypolite v. Intact Insurance Company
Written Submissions by:
For the Applicant: Aparajita Singh, Counsel
For the Respondent: Eluxmeenah Rishihesan, Counsel
OVERVIEW
1On December 12, 2025, the applicant requested reconsideration of the Tribunal’s decision released November 25, 2025 (“decision”).
2Stemming from an accident on December 21, 2021 and a request for benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”), the parties participated in a written hearing. In the decision, the Tribunal found the applicant was held to the Minor Injury Guideline (“MIG”), and, as such, there was no need to determine whether the disputed treatment plans were reasonable and necessary. The Tribunal further dismissed the applicant’s claims for an award and interest.
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(b) to support his request. He is asking for an order finding he is removed from the MIG and entitled to the disputed treatment plans. He is also asking for an award and interest.
5The respondent asks the Tribunal to uphold the decision.
RESULT
6The applicant’s request for reconsideration is dismissed.
ANALYSIS
7The test for reconsideration under Rule 18.2 involves a high threshold, and the requesting party must show how or why the decision falls into one of the categories in Rule 18.2. 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.
8The applicant raises several issues with the Tribunal’s decision to keep him in the MIG. I will address them in turn.
Section 18(2) of the Schedule
9First, the applicant claims the Tribunal incorrectly required him to use “specific legal phrasing” to show he was entitled to removal from the MIG based on a pre-existing condition. According to the applicant, there is no such requirement in s. 18(2). Rather, the Tribunal should have found that exacerbation of his pre-accident psychological condition met this test.
10I find the applicant has not shown how the Tribunal’s assessment of s. 18(2) constitutes an error based on Rule 18.2(b).
11Section 18(2) of the Schedule states:
Despite subsection (1), the limit in that subsection does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline.
12Put another way, an insured person may be removed from the MIG if they can establish that they have a documented, pre-existing condition, along with evidence that this condition will prevent maximal recovery from a minor injury if they are kept within the MIG.
13The Tribunal addressed the applicant’s argument about s. 18(2) at paragraphs 9 and 10 of the decision (emphasis added):
The applicant submits that he has various pre-existing impairments that were exacerbated by the subject accident. He submits that the records of Dr. David Kirsh, family physician, show that he has a pre-existing intensive history of epilepsy as well as injuries suffered due to previous motor vehicle accidents. The Disability Certificate, prepared by Dr. Mark Shrott, chiropractor, dated April 25, 2022, notes that the applicant was currently under treatment for two previous motor vehicle accidents on February 6, 2020 and October 16, 2020. It states that he suffered fractures to his ribs and wrist as well as a concussion in his October 16, 2020 accident. The applicant submits that in the October 16, 2020 accident, he suffered pain in his ribs, head, neck, chest and wrist. The applicant also submits that he was in a motor vehicle accident on June 28, 2021, due to a seizure. The applicant further submits that he attended for treatment at Yonge-Spruce Chiropractic Health Centre and received physical therapy for the period from December 15, 2018 to June 25, 2024.
I find that while the applicant notes in his submissions that his pre-existing impairments were exacerbated by the subject accident, he has not provided submissions that he should be removed from the MIG due to a pre-existing condition that precludes maximal medical recovery if he is kept within the confines of the MIG. Therefore, the applicant is not removed from the MIG on this basis.
14While there is no explicit reference to a pre-existing psychological condition, I do not find the applicant has shown how the alleged errors he raised about this section of the decision would likely have had any impact on the outcome of this analysis. As noted above, the applicant had the onus to not only show that a pre-existing condition existed (which it appears the Tribunal accepted), but he also had to show that this condition would preclude “maximal medical recovery if he is kept within the confines of the MIG”. Though the applicant may claim that the Tribunal incorrectly required him to use “specific legal phrasing”, the decision makes clear that the Tribunal did consider this ground for MIG removal, but determined that this second part of the test was not met. I see no error with this approach.
15The applicant also cites Murray v. Economical Insurance Company, 2023 CanLII 77303 (ON LAT) (“Murray”), claiming that this case shows “it is not necessary to determine whether the Applicant has a pre-existing medical condition within the meaning of s.18(2)”. Beyond the fact that Tribunal cases are not binding, I find the applicant’s reading of this case is incorrect. The Tribunal found there was no need to determine whether this applicant had a pre-existing condition because it determined that she had established removal from the MIG based on an accident-related psychological impairment. This finding has no bearing on the present case.
Psychological Impairment
16The applicant raises the following alleged errors with the Tribunal’s approach to his claim for removal from the MIG based on a psychological impairment:
a. The Tribunal erred by relying on the lack of psychological complaints in the clinical notes and records of Drs. David Kirsh and Jeffrey Bernholtz, especially as there was evidence of psychological impairment in the OCF-1 and OCF-3;
b. The Tribunal did not use the correct legal test for assessing whether a psychological impairment existed; and,
c. The Tribunal’s approach does not align with established case law.
17The Tribunal assessed the applicant’s claim of a psychological impairment at paragraphs 11 – 24 of the decision. In brief, the Tribunal noted that there were only a few references to psychological symptoms in the medical records, including no mention of any accident-related, psychological complaints in the notes from Drs. Kirsh and Bernholtz. Further, the Tribunal assessed the relative weight of the parties’ competing reports, and it determined that the respondent’s report (which found no impairment) was more in line with the few psychological complaints found in the parties’ other evidence. On this basis, the Tribunal concluded that the applicant did not meet his evidentiary onus to demonstrate removal from the MIG based on a psychological impairment.
18As noted above, the reconsideration process is not a venue for parties to request a re-weighing of evidence and arguments that were considered at first instance. Rather, to trigger Rule 18.2(b), the requesting party must show that there was a legal or factual error that would likely have impacted the outcome of the decision.
19I find the applicant’s arguments about his alleged psychological impairment are an attempt to have the Tribunal re-weigh evidence from the written hearing. The Tribunal assessed the relative value of the parties’ competing reports. This review was detailed and expansive in scope. The applicant may disagree with the outcome, but the Tribunal is entitled to make these determinations.
20Further, while the applicant may claim that the Tribunal should have looked to the psychological complaints listed in the OCF-1 and OCF-3, it is well-established that decision-makers are not required to list every piece of evidence mentioned by the parties. Rather, the Tribunal is only obligated to show it addressed the parties’ key evidence and arguments. Therefore, while there was a brief reference to the psychological complaints listed on the OCF-3 in his initial written submissions, the applicant mainly relied on the parties’ competing reports to argue this MIG ground.
21Finally, though the applicant may point to Tribunal cases where other applicants were removed from the MIG based on psychological impairments (e.g., Murray), I find they do not help him to meet his onus on reconsideration. The analysis needed to determine whether an applicant is removed from the MIG is highly fact-specific. Each insured person is different, and their medical evidence must be assessed on an individual basis.
22Taken together, the applicant has not established that the Tribunal erred in its assessment of his alleged psychological impairment, pursuant to Rule 18.2(b).
Chronic Pain
23Finally, the applicant argues the Tribunal erred when it denied his claim of chronic pain. The applicant raises the following alleged errors:
a. In contravention of T.S. v. Aviva General Insurance Company, 2018 CanLII 83520 (ON LAT), the Tribunal incorrectly found the applicant required a chronic pain diagnosis to be removed from the MIG;
b. The Tribunal narrowly focused on whether his injuries were reported to Drs. Kirsh and Bernholtz, as opposed to seeing if his overall presentation supported a finding of “post-accident decline” (e.g., it ignored the limitations noted in the report from Dr. Frederick Ma, chronic pain physician, dated May 29, 2024); and,
c. The Tribunal incorrectly applied the AMA Guides criteria for chronic pain, namely, it overlooked evidence and arguments about his pain and functional limits, and it treated these optional criteria as binding.
24The Tribunal assessed the applicant’s claim of chronic pain at paragraphs 25 – 42. In this section of the decision, the Tribunal laid out the legal test for removal from the MIG based on chronic pain (at paragraph 35):
I find that the applicant has not directed me to any diagnosis of chronic pain syndrome or reference to chronic pain in the records submitted. While the decision in T.S. v. Aviva, states that a diagnosis of chronic pain syndrome is not required, I find that it is still incumbent on the applicant to prove that his ongoing pain causes a functional impairment which adversely affects his well-being.
25It then reviewed the applicant’s medical records, finding there were few mentions of the accident. It did note that the applicant attended a treatment facility for several years post-accident, but it ultimately found the applicant did not direct its attention to any notes from this clinic showing functional limitations. The Tribunal also reviewed a report from Dr. Sabrina Ming-Wai Tu (dated February 2, 2023), though it concluded that the self-reported complaints of functional limitations contained therein were uncorroborated. Finally, though the applicant contended that he met five out of the six criteria for chronic pain, the Tribunal concluded that he only directed it to evidence of one criterion from the AMA Guides, i.e., his ongoing treatment post-accident.
26Once again, I find the applicant’s arguments about chronic pain and the MIG are an attempt to have the Tribunal re-weigh evidence and arguments from the hearing. This is not a proper use of the reconsideration process.
27First, as the quotation above demonstrates, the Tribunal stated that there is no need for a formal diagnosis of chronic pain to merit removal from the MIG. The applicant has not shown how the Tribunal failed to apply this legal test.
28Second, I am satisfied that the Tribunal conducted an extensive review of the available medical evidence as part of its chronic pain analysis. While there was a strong focus on the records from Dr. Kirsh and Bernholtz, several other records were included in its assessment, e.g., the records from his treating clinic. I also note that, once again, the Tribunal is not expected to list every piece of evidence cited by the parties.
29Similarly, though the applicant may claim the Tribunal’s disregard for his treating clinic’s records is evidence that it did not review “the totality of the evidence”, I do not find the applicant has shown any error with this part of the Tribunal’s approach. The Tribunal found he had “not pointed [it] to any mention of his functional limitations in the records provided” (at paragraph 38), and the applicant claims this statement shows it did not meet its obligation to review the evidentiary record. I do not agree. Not only was the Tribunal’s review of the parties’ evidence extensive in scope, but the applicant has not highlighted any specific parts of the treating clinic’s records that were mentioned in his submissions, yet left out of the decision. In fact, it appears that the Tribunal’s finding that he met one of the six AMA Guides criteria was based on its review of this clinic’s records.
30Finally, I do not find the applicant has shown how the Tribunal’s assessment of the AMA Guides criteria was incorrect. There is no indication that the Tribunal relied solely on these six criteria to deny the applicant’s claim, but it rather correctly used them to help assess whether there was sufficient evidence of ongoing pain and functional limitations to merit a finding of chronic pain. The applicant has not shown how this part of the analysis is incorrect.
31Despite these findings though, I do accept that the Tribunal does not appear to have explained what role the report from Dr. Ma played in its analysis. This report is mentioned as part of the Tribunal’s summary of the applicant’s position on chronic pain, but there is no explanation for why Dr. Ma’s findings did not help the applicant to meet his evidentiary onus. The applicant placed some weight on this report in his written submissions, so I find the Tribunal erred by not explaining why it did not help the applicant to meet his onus for chronic pain.
32Despite this error, the applicant has shown how it would likely have impacted the outcome of the decision. The Tribunal performed a fulsome review of the available evidence, and it concluded there were insufficient references to accident-related impairments and functional limits. I do not find the applicant has demonstrated how adding this single report to the Tribunal’s analysis would likely have altered this outcome.
33Additionally, the applicant primarily cited this report in his written submissions to support one additional AMA Guides criterion, i.e., withdrawal from the social milieu. Specifically, the applicant submitted: “Moreover, he has stopped playing soccer, maintaining his lawn and garden, and playing sports with his children in his free time as reported in Dr. [Ma’s] report.” However, even though he found a reduction in these social and recreational activities post-accident, Dr. Ma further noted that the applicant “has since resumed them partially.” Again, I am not satisfied the applicant has shown how this limited reference to functional impairments (and their partial resolution) would likely have changed the outcome of the chronic pain analysis.
34Taken together, the applicant has not established that the Tribunal erred in its assessment of his claim of chronic pain, pursuant to Rule 18.2(b).
CONCLUSION & ORDER
35The applicant’s request for reconsideration is dismissed.
Craig Mazerolle
Vice-Chair
Released: February 9, 2026