RECONSIDERATION DECISION
Before:
Jeremy A. Roberts, Vice-Chair
Licence Appeal Tribunal File Number:
24-010768/AABS
Case Name:
Trecia Simmonds v. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant:
Denise Junkin Counsel
For the Respondent:
Anju Sharma, Counsel
OVERVIEW
1On December 28th, 2025, the applicant requested reconsideration of the Tribunal’s decision, dated December 8th, 2025 (“decision”).
2In the decision, the Tribunal found that the applicant was not entitled to Income Replacement Benefits (“IRBs”), any of the treatment plans in dispute, or an award. The Tribunal also found that the respondent was not entitled to 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 argues that the Tribunal made an error of law and fact such that the Tribunal would likely have reached a different result had the errors not been made. Additionally, she argues that the Tribunal committed a material breach of procedural fairness. The respondent submits that the applicant has not satisfied the grounds for a reconsideration.
5The applicant requests that the Decision be varied in order to find her entitled to IRBs for the pre- and post-104 week periods and to the Treatment Plans in dispute. In the alternative, the applicant requests that a new hearing be ordered.
RESULT
6The applicant’s request for reconsideration is denied.
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(b) – I find that the Tribunal has not made an error of law or fact such that it would have likely reached a different result had the error not been made
8I find that the Tribunal has not made an error of law or fact such that it would have likely reached a different result had the error not been made.
9The applicant made two core arguments: (1) that the Tribunal made an error of fact in failing to consider certain evidence; and (2) that the Tribunal made an error of law in failing to properly assess the case law and properly apply the legal tests. I will address each in turn.
10On point (1) the applicant argued that the Tribunal made an error of fact in failing to consider certain evidence in determining her entitlement to an IRB. In particular, she argues that the Tribunal failed to properly consider the Chronic Pain Assessment Report of Dr. Karmy, or the approval for her CPP-Disability benefits (“CPP-D”). The applicant submits that the report of Dr. Karmy was the only expert opinion on chronic pain and that this evidence was directly relevant to her ability to perform tasks of employment. She further submits that her successful CPP-D application should have been given more weight in the Tribunal’s decision.
11The respondent argued that the Tribunal assessed the evidence before it, rejected some in favour of others, and provided analysis for these evidentiary assessments. It argues that reconsideration is not an opportunity to re-assess evidence or re-litigate the facts.
12I find that the applicant has failed to satisfy me that an error has been made that would have resulted in a different result had the error not been made. The Tribunal assessed the applicant’s evidence in a fulsome manner in paragraphs 33, 35 – 43 of the decision. It is well-established that there is no requirement for the Tribunal to address every single individual piece of evidence in its decision. Here, the Tribunal engaged with the evidence and made findings based on a balance of probabilities assessment of that evidence.
13Furthermore, I agree with the respondent that the applicant failed to demonstrate to me how a deeper analysis of those specific pieces of evidence would have resulted in a different result. The reconsideration is not an opportunity to re-litigate the decision or re-weigh the evidence, and I find that this request for reconsideration does not surpass this threshold.
14On point (2), the applicant argued that the Tribunal made an error of law in failing to apply the proper tests for the issues in dispute and misapplying caselaw in determining her entitlement to post-104-week IRBs. Firstly, the applicant argues that the Tribunal misinterpreted the Divisional Court decision of Paesano v. Coseco Insurance Co, 2025 ONSC 3245 (“Paesano”) in its finding that the applicant is not entitled to post-104-week IRBs because a finding had been made against the applicant on the pre-104-week IRBs. Specifically, the applicant argued that Paesano only applies in situations where the applicant did not apply for and/or qualify for IRBs within 104 weeks of the accident (which was not the case here).
15Furthermore, the applicant submitted that the Tribunal failed to consider the proper legal test when it comes to whether medical assessments are reasonable and necessary. Specifically, she argues that sections 14, 15, and 38 of the Schedule mean that the insurer is liable to pay for reasonable and necessary medical and rehabilitation benefits, including the costs of assessments. Furthermore, she argues that there is no requirement under the “reasonable and necessary” test to prove the basis for the diagnoses beforehand, which she contends happened here.
16The respondent argued that the applicant’s arguments on Paesano are without merit, because her brief receipt of IRBs does not alter the applicable legal analysis that the Adjudicator conducted regarding whether the applicant sustained a substantial inability to perform the essential tasks of her pre-accident employment. In the alternative, the respondent submits that the applicant failed to demonstrate how a different interpretation of this case would have resulted in a different result. On the issue of misapplied legal tests for the treatment plans in dispute, it argued that the Tribunal outlined the relevant legal tests, applied them in considering the evidence, and came to a reasoned conclusion. It reasserted that the reconsideration is not an opportunity to relitigate the hearing.
17I find that the applicant has failed to satisfy me that an error of law has been made that would have resulted in a different result. First, I agree with the respondent that the fundamentals of Paesano remain relevant in this case given that the applicant was ultimately found by the Tribunal to have not met the test for pre-104-week IRBs. Secondly, even if the Paesano case were relevant to this present case, I fail to see how the applicant’s preferred interpretation would likely have led to a different result given that the Tribunal had already found the applicant did not satisfy the “substantial inability” test, and, ergo, would likely not satisfy the stricter “complete inability” test. While I acknowledge the applicant’s argument that she did receive pre-104-week IRBs up and until September 2022, this does not negate an evolving evaluation of entitlement. In this case, the Tribunal assessed that evolving evidence and determined that the applicant’s conditioned no longer met the threshold of the “substantial inability” test, and it follows that if you don’t meet this test, you will not meet the stricter “complete inability” test. The very fact that the Schedule allows reasonable assessments underlines the fact that it is accepted that a person’s condition may evolve for better or worse. Decisions at the Tribunal are made by weighing that evolving evidence on a balance of probabilities, which was done here. As such, I find that the applicant has not satisfied this ground for reconsideration.
18Moreover, I find that that the Tribunal did utilize the correct test in determining entitlement to the various treatment plans in dispute. The Tribunal laid out the test in paragraph 49; reviewed the applicant’s evidence in paragraphs 51, 58, 59, 64, 70, 73, 80, 81, 89, 90, 96, 97, 98, 106, 107, 117, 118 and 120; and conducted an analysis of the plans that applied the relevant test in paragraphs 53, 54, 55, 61, 66, 67, 74, 75, 76, 77, 82, 83 , 85, 86, 92, 93, 100, 101, 102, 103, 110, 111, 112, 113, 114, 122 and 123. I find that the Tribunal did not, in its decision, misapply the “reasonable and necessary” test because it considered issues such as the goals of the treatment plans and whether they are related to accident-related concerns. I reiterate that the reconsideration is not an opportunity to re-litigate the hearing, and I find that in this case. The applicant has not satisfied me that an error of law occurred here that would meet the standard of Rule 18.2(b).
Rule 18.2(a) – I find that the Tribunal has not committed a material breach of procedural fairness
19I find that the Tribunal has not committed a material breach of procedural fairness.
20The applicant argued that the Tribunal committed a material breach of procedural fairness by failing to provide sufficient reasons and analysis in the decision. More specifically, the applicant argued that the Tribunal merely summarized the parties’ positions and then “baldly state[d] its conclusions”. She argued that the conclusions offered lacked sufficient analysis and ignored key evidence.
21The respondent argued that the Tribunal’s 24-page decision clearly identifies the issues, evidence and legal principles, and it provided analysis and decisions.
22As noted in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”), reasons in a decision ensure the fairness and legitimacy of the administrative decision-making process (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…
23Further, 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 (“Baker”), and then affirmed in Vavilov, reasons allow decisions to be questions (at paragraph 39): “Reasons…are invaluable if a decision is to be appealed, questioned, or considered on judicial review”.
24I find that the applicant has failed to satisfy me that the Tribunal committed a material breach of procedural fairness in providing its reasons. The reconsideration process is not an opportunity for the Tribunal to re-litigate the weight assigned to various pieces of evidence by the Tribunal in the original hearing.
25For each issue in dispute, the Tribunal identified the proper tests, summarized the parties’ positions, analyzed the evidence, and issued findings. This represents the proper procedure for the Tribunal, and nothing here suggests to me that the Tribunal failed to follow a fair and proper procedure for the hearing. Moreover, the practice followed here follows the guidance outlined in Baker and Vavilov, by showing the parties that their arguments were considered and explaining how decisions were made.
CONCLUSION & ORDER
26The applicant request for reconsideration is denied.
Jeremy A. Roberts
Vice-Chair
Released: March 25, 2026