RECONSIDERATION DECISION
Before:
Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number:
24-014358/AABS
Case Name:
Christina Semenya v. Belair Insurance Company Inc.
Written Submissions by:
For the Applicant:
Roger R Foisy, Counsel
Rusald Laloshi, Paralegal
For the Respondent:
O. Itse Ezomo, Counsel
OVERVIEW
1On December 30, 2025, the applicant requested reconsideration of the Tribunal’s decision released December 9, 2025 (“decision”).
2Stemming from an accident on July 30, 2022 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 four-day videoconference hearing. In the decision, the Tribunal found the applicant was entitled to a non-earner benefit (“NEB”) and interest. It denied the applicant’s requests for an award and costs.
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 her request. The request is limited to the award, as she is asking the Tribunal to “re-determine the award claim on the existing record”. She is also asking the Tribunal to use Rule 17 to make amendments to paragraphs 3 and 27 of the decision.
5The respondent asks the Tribunal to dismiss the request for reconsideration. In the alternative, the respondent does not contest the applicant’s amendment requests.
RESULT
6The applicant’s request for reconsideration is granted.
7Pursuant to Rule 18.4, the decision is confirmed.
8Pursuant to Rule 17, paragraphs 3 and 27 of the decision are amended as noted below.
ANALYSIS
9The 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.
10I find the applicant has established grounds for reconsideration, pursuant to Rule 18.2(b).
11The applicant claims the decision “employs inaccurate statements that create internal inconsistency” as it relates to the entitlement findings and the award claim. The applicant also makes a general assertion that the Tribunal’s chain of analysis does not explain how it “moved from the evidence and submissions on the s. 10 issue to the conclusion reached”.
12As noted by the Supreme Court of Canada at paragraph 79 in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”), reasons ensure the fairness and legitimacy of decision-making (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.
13Further, as the Supreme Court stated at paragraph 39 in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC) (“Baker”), reasons allow decisions to be questioned: “Reasons are invaluable if a decision is to be appealed, questioned, or considered on judicial review”.
14Considering these principles, I do not find the Tribunal provided adequate reasons to explain its denial of the award. Instead, I find the Tribunal’s reasons are both an incorrect summary of the applicant’s position and conclusory in nature.
15The Tribunal’s analysis of the award is contained in paragraphs 65 – 68 (emphasis added):
The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Provide the basis for the award. Identify the response. Make a finding and provide reasons to support it. The applicant is not entitled to an award.
Under s. 10 of Reg. 664, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour” which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.
The applicant submits the respondent acted in bad faith when it was provided by the applicant’s medical documentation that supported her accident-related injuries and it chose to deny or partially approve treatment plans submitted by the applicant based on the opinions of the section 44 assessors.
I find the applicant failed to meet her burden of proving entitlement to the benefits in dispute and therefore the respondent did not unreasonably withhold payment of the benefit to the applicant. I find that the applicant has not met her onus to demonstrate, on a balance of probabilities that, the respondent acted in an excessive, imprudent, stubborn, inflexible, unyielding, or immoderate way and therefore the applicant is not entitled to an award.
16The three highlighted sections show how the Tribunal did not meet its obligations to provide adequate reasons. Specifically, in the words of Vavilov, it did not “explain how and why a decision was made”.
17First, at the start of this section, the Tribunal left in what appears to be reminders about the different aspects of an award analysis, e.g., “Provide the basis for the award.” By not removing these reminders, a party would likely conclude that the reasons provided by the Tribunal are only cursory in nature.
18Second, as she highlights in her reconsideration request, the applicant’s closing arguments indicated that “the Respondent’s award liability arose from how it adjusted the NEB claim”. Yet, in this section of the decision, the Tribunal makes no mention of the NEB. It instead focused on the respondent’s adjusting of the “treatment plans submitted by the applicant”. This statement is not a correct summary of the applicant’s award position.
19Third, and most significantly, I find the final paragraph does not explain how the Tribunal concluded the applicant “failed to meet her burden” to show entitlement to an award. Rather, the reasons are conclusory in nature.
20Tribunals do not have to address every argument raised during a hearing. Rather, in accordance with Vavilov and Baker, reasons must show the parties that a decision-maker has considered all their key submissions. I find the Tribunal has not met its obligation to provide adequate reasons for the award. In particular, the applicant was left without a clear understanding of why her award claim was not successful.
21I further find that a more fulsome engagement with her submissions would likely have led to a different outcome, as a more detailed analysis may have allowed the Tribunal to see the claim in a different light. In sum, I find the applicant has triggered reconsideration under Rule 18.2(b).
22The respondent challenges this ground by submitting that the applicant’s request is an “attempt to re-argue the award on a correctness standard”. For the reasons above, I do not find this reconsideration request is an attempt to re-argue an unsuccessful position, nor is the applicant suggesting that every minor aspect of her closing arguments must appear in the decision. Rather, the applicant wants to understand why she was unsuccessful on this issue—a reasonable position considering the conclusory nature of the reasons.
23Taken together, I find the applicant has established an error that meets the standard of Rule 18.2(b).
Rule 18.4 – Confirming the Decision
24In light of this error, I find the most appropriate remedy under Rule 18.4 is to consider the award request within the confines of this reconsideration decision. Though the hearing was done virtually, the parties have provided comprehensive arguments about the award with their reconsideration submissions. As such, I see no prejudice facing the parties from proceeding in this manner, especially as it will allow for a timelier resolution of their dispute.
25Once again, under s. 10 of Reg. 664, the Tribunal may grant an award that amounts to up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this test.
26For the reasons that follow, I find the applicant has not met this burden. Pursuant to Rule 18.4, the decision is confirmed.
27Focusing on the process the respondent used to adjust her NEB claim, the applicant raises three main arguments in support of an award—arguments that, in her words, “form the core conduct record on the s. 10 award claim”.
28First, the applicant submits that, despite having completed an OCF-5 that permitted the respondent to obtain her medical records, it still provided an “artificially thin record” to its s. 44 assessors. According to the applicant, this limited document review impacted the outcome of the s. 44 NEB IEs. Second, the applicant claims there were several “trigger points” during the lifespan of her claim that should have led the respondent to re-assess her entitlement to the NEB, e.g., the receipt of OT and social work reports; a follow-up s. 44 psychological report, etc. Finally, the applicant takes issue with the respondent’s adjusting and privacy practices, namely, e-mail correspondence from March 21, 2024 that shows certain clinical records were not properly routed. The applicant also takes issue with the medical reasons provided on some IE notices, as well as the fact that the respondent’s “internal log note regarding the catastrophic impairment application records” shows it was aware of psychiatric and functional issues—yet no NEB re-assessment was done.
29The respondent opposes the award claim.
30Starting with the claims that there was an “artificially thin record” and a failure to re-assess, I find the applicant has not pointed to any errors in the respondent’s adjusting process. An insurer’s conduct is not measured against the standard of perfection when determining whether an award is merited. Though the applicant may take issue with its refusal to grant her an NEB (as well as the evidence it used to make this determination), the respondent was entitled to rely upon its review of the available medical evidence to reach this conclusion. I see no issue with this part of the respondent’s adjusting process that rises to the level necessary to grant an award.
31Further, though there is a requirement for the ongoing adjusting of an insured person’s claim (especially when there is new evidence), there is no similar obligation for an insurer to conduct updated s. 44 assessments. Section 44(1) allows insurers to use IEs as a means of assessing whether an insured person is entitled to a benefit. The permissive wording of this provision means there is no obligation for an insurer to use this authority. Rather, an insurer is entitled to rely on the available evidence to adjust the claim with or without follow-up IEs.
32I also do not see how the inadequacy of medical reasons on certain IE notices could have impacted the withholding or delay in payment of the NEB. The applicant has the onus to show that she is entitled to an award, and I do not find she has established a link between these notices and the test for an award.
33Finally, aside from the fact that privacy concerns are generally not within the jurisdiction of the Tribunal, I do not find the applicant has shown how the March 2024 correspondence demonstrates an unreasonable withholding or delay of payment. Again, the respondent’s conduct is not measured against the standard of perfection, and, while I accept that there were noted issues with document exchange, it appears from these e-mails that the respondent was trying to resolve this issue.
34In sum, even though the Tribunal found she was entitled to the NEB, the applicant has not demonstrated, on a balance of probabilities, that she is entitled to an award based on this benefit. Put another way, the applicant has not shown that the respondent’s conduct reaches the threshold for issuing an award under s. 10.
35The decision is confirmed, pursuant to Rule 18.4.
Rule 17 – Amendment Requests
36In addition to the relief sought under Rule 18.4, the applicant asks for two amendments to the decision. I will grant these requests.
37Rule 17 states:
The Tribunal may at any time:
Correct a typographical error, an error of calculation or similar error in its order or decision;
Clarify an order or decision that contains a misstatement or ambiguity, which is not substantive and does not change the order or decision.
38First, the applicant highlights what appears to be placeholders at paragraph 3 of the decision: “The applicant is entitled to a non-earner benefit of X per week from Y to Z”. The applicant asks the Tribunal to “correct and/or clarify these limited ambiguities… to ensure the Decision accurately reflects the Tribunal’s intended determination.”
39The applicant then notes that the Tribunal wrote the following at paragraph 27: “I find the applicant is not entitled to a non-earner benefit.” The applicant argues this statement is incongruous with several other findings in the decision, most notably the Order section where the Tribunal found she is entitled to the NEB.
40As noted above, the respondent does not contest these amendments, so long as there is no alteration of “the operative disposition on the award issue”.
41Considering the lack of opposition from the respondent (as well as the minor nature of these changes), I find the requested amendments are largely typographical in nature. As such, the amendment requests are granted, pursuant to Rule 17.
CONCLUSION & ORDER
42The applicant’s request for reconsideration is granted.
43Pursuant to Rule 18.4, the decision is confirmed.
44Pursuant to Rule 17, paragraphs 3 and 27 of the decision now read:
3The applicant is entitled to a non-earner benefit of $185.00 per week from August 27, 2022 to July 27, 2024;
27I find the applicant is entitled to a non-earner benefit.
Craig Mazerolle
Vice-Chair
Released: March 11, 2026