Succo v. Intact Insurance Company, 2026 CanLII 37028

Citation: Succo v. Intact Insurance Company, 2026 ONLAT 24-014346/AABS-R

RECONSIDERATION DECISION

Before: Craig Mazerolle, Vice-Chair

Licence Appeal Tribunal File Number: 24-014346/AABS

Case Name: Antony Succo v. Intact Insurance Company

Written Submissions by:

For the Applicant: Rohan Haté, Counsel

For the Respondent: Jonathan Wong, Counsel

OVERVIEW

1On January 8, 2026, the applicant requested reconsideration of the Tribunal’s decision released December 22, 2025 (“decision”).

2Stemming from an accident on May 11, 2023 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 one-day videoconference hearing. In the decision, the Tribunal found the applicant remained within the Minor Injury Guideline (“MIG”), and, as a result, there was no entitlement to the six disputed treatment plans. It also denied the applicant’s requests for a non-earner benefit (“NEB”), 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. The applicant is asking the Tribunal to find he is removed from the MIG and entitled to the treatment plans. The applicant does not challenge the Tribunal’s finding that he is not entitled to an NEB in his reconsideration request.

5The respondent asks the Tribunal to dismiss the request for reconsideration.

RESULT

6The applicant’s request for reconsideration is granted.

7Pursuant to Rule 18.4, the decision is cancelled, except for the NEB denial.

8A re-hearing shall take place to address the remaining issues.

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.

Rule 18.2(b) – Errors of Fact or Law

10One of the grounds the applicant raised to support his removal from the MIG was s. 18(2) of the Schedule, i.e., a pre-existing condition that will preclude his recovery if he is kept within the confines of the MIG. A key part of the applicant’s evidence in support of this position was a report from Dr. Joseph Kwok, orthopaedic surgeon (dated May 15, 2025). This is reflected in the decision at paragraph 12, where the Tribunal listed Dr. Kwok’s evidence as one of the core elements of the applicant’s MIG position:

The applicant submits that his injuries from the subject MVA are not minor due to a psychological condition, chronic pain and pre-existing injuries which preclude him from maximum medical recovery if held within the MIG. The applicant relies on his testimony, the reports by Dr. Joseph Kwok and Dr. Jacqueline Brunshaw.

11The Tribunal addressed Dr. Kwok’s report and the s. 18(2) framework at paragraph 16 of the decision. It found this report did not meet the second branch of the s. 18(2) test, namely, it did not opine on whether the applicant’s pre-existing condition would preclude his recovery under the MIG:

The applicant’s assessor, Dr. Kwok, does not opine that the applicant’s pre-existing injuries preclude maximum medical recovery within the MIG. Dr. Joseph Kwok, orthopaedic surgeon, assessed the applicant on May 15, 2025, and issued his report the same day. Dr. Kwok diagnoses the applicant with various strains and sprains and chronic pain. Dr. Kwok opines that the applicant’s pre-existing conditions were exacerbated by the accident. I find that this opinion does not meet the test.

12The applicant challenges this part of the decision by claiming that Dr. Kwok did, in fact, comment on this part of the s. 18(2) test. I have reviewed the relevant section of Dr. Kwok’s report, and I agree with the applicant.

13On page 20 of his report, Dr. Kwok opined (emphasis added):

Mr. Succo had pre-existing cervical spine abnormalities. He had past history of significant cervical spine degenerative changes, spinal stenosis, and myelopathy. He underwent cervical spine decompression and fusion. He had cervical spine and left lower extremity impairment prior to the accident. His injuries were superimposed on pre-existing abnormalities which rendered his cervical spine more vulnerable to injury and also affect his recovery adversely. There is a substantial possibility that his pre-existing cervical spine abnormalities were exacerbated as a result of the injuries sustained in the subject accident. His pre-existing medical conditions prevent maximal medical recovery within the Minor Injury Guideline limits.

14Not only is there a clear indication that Dr. Kwok believed the applicant’s pre-existing condition would impact his recovery under the MIG, but he provided an explanation for this opinion, i.e., “His injuries were superimposed on pre-existing abnormalities which rendered his cervical spine more vulnerable to injury and also affect his recovery adversely”.

15By not accounting for this part of Dr. Kwok’s report, I find the applicant has shown the Tribunal erred in its MIG analysis. I further find that, had the Tribunal accounted for this part of the evidence, it would likely have reached a different outcome about the MIG. Put another way, if the Tribunal had accurately understood the findings from one of the applicant’s two key experts, it is likely that the outcome of the MIG analysis would have been different.

16The respondent does not explicitly address this part of the applicant’s position, as it instead focuses on his arguments about the handling of Dr. Kwok’s chronic pain diagnosis. The respondent also makes several general arguments about what it sees as the applicant’s improper attempt to re-argue positions and evidence from the hearing. I do not agree with this characterization. Rather, as the applicant has demonstrated, there was an error in the Tribunal’s understanding of Dr. Kwok’s report, and this error has triggered Rule 18.2(b).

17I acknowledge that the Tribunal assessed the weight of Dr. Kwok’s report at other points in the decision, e.g., in its dismissal of the NEB. Yet, while the Tribunal may have found other reasons for why this report should be afforded little weight (such as the lack of observations Dr. Kwok provided to support his chronic pain diagnosis), the fact remains that there was a substantive error involving the assessment of this key report regarding s. 18(2). This error is sufficient to trigger Rule 18.2(b).

18The applicant raises several other alleged errors. However, as I have found grounds for reconsideration in the Tribunal’s handling of this key aspect of his evidence for the MIG, I do not find it necessary to address these other grounds.

Rule 18.4 – Cancelling the Decision

19I now turn to the outcome of the reconsideration under Rule 18.4. Given that the MIG analysis is deeply intertwined with the denial of the treatment plans (and that Dr. Kwok’s evidence was one of the key aspects of the applicant’s case), I find the most appropriate remedy is to cancel the decision and order a re-hearing.

20I note that, since the Tribunal’s finding that the applicant is not entitled to an NEB was not challenged on reconsideration, it will not form part of the re-hearing. Instead, I am confirming the NEB denial.

21To ensure the efficient and fair resolution of this dispute, I am ordering the re-hearing to take place before a different adjudicator. This adjudicator shall consider the transcript and/or recording from the hearing, as well as the exhibits, to render a decision on the remaining issues, except for the NEB.

CONCLUSION & ORDER

22The applicant’s request for reconsideration is granted.

23Pursuant to Rule 18.4, the decision is cancelled, except for the NEB denial. A re-hearing shall take place to address the remaining issues as laid out in the decision.

24The re-hearing will be conducted by a new adjudicator reviewing the existing record, i.e., the recording and/or transcript of the hearing, as well as the exhibits from the hearing. The party who brought the court reporter to the hearing shall provide the other party and the Tribunal with a copy of the recording and/or transcript of the hearing within 30 days of the release of this decision.

25I am not seized.

Craig Mazerolle

Vice-Chair