Shari Turner v. Co-operators General Insurance Company, 2026 CanLII 4147

RECONSIDERATION DECISION

Citation: Turner v. Co-operators General Insurance Company, 2026 ONLAT 24-005701/AABS-R

Before: Craig Mazerolle, Vice-Chair

Licence Appeal Tribunal File Number: 24-005701/AABS

Case Name: Shari Turner v. Co-operators General Insurance Company

Written Submissions by:

For the Applicant: Nick de Koning, Counsel

For the Respondent: Julianne Brimfield, Counsel Ethan Edwards, Counsel

OVERVIEW

1On October 21, 2025, the applicant requested reconsideration of the Tribunal’s decision released October 2, 2025 (“decision”).

2Stemming from an accident on September 29, 2020 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 videoconference hearing. In the decision, the Tribunal found the applicant was entitled to payment of an income replacement benefit (“IRB”) for the period of May 1, 2021 to December 31, 2023, plus interest. The Tribunal further concluded that the applicant met the entitlement test for the period from January 1 to April 23, 2024, but no payment was owing on account of the Tribunal’s inability to calculate the quantum.

3The Tribunal further found the applicant was not entitled to a treatment plan for physiotherapy services, nor was she entitled to an award.

4The 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.

5The applicant relies on Rule 18.2(b) to support her request. She is asking for an order amending the decision to find she is entitled to payment of an IRB from January 1, 2024 to date and ongoing.

6The respondent asks the Tribunal to dismiss the request.

7I do note that the applicant originally disputed the Tribunal’s IRB quantum determination for the period from January 1 to April 23, 2024. However, according to the applicant’s reply, this part of her request has been resolved.

RESULT

8The applicant’s request for reconsideration is dismissed.

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.

10The applicant raises several alleged errors with the Tribunal’s finding that she is not entitled to an IRB beyond April 23, 2024. First, the applicant claims the Tribunal applied an “overly literal interpretation” of the post-104 week IRB test. Specifically, the applicant submits it did not consider “factors such as a competitive, real-world employment setting”. Second, the applicant argues the Tribunal misapprehended her evidence, namely, the report from Dr. Rehan Dost, neurologist (dated April 24, 2024). Though this expert found her migraines were better controlled at the time of his assessment, the applicant submits that this finding was premised on a “considerable restriction of activity and reduction in stress and stimulation”.

Rule 18.2(b) – Application of the Post-104 Week IRB Test

11Starting with the applicant’s position that the Tribunal incorrectly applied the post-104 week IRB test, I find the applicant has identified a legal error. However, I am not satisfied that this error would likely have impacted the outcome—a key aspect of the Rule 18.2(b) test.

12Section 5(1) of the Schedule states that insured persons are entitled to an IRB if they are employed at the time of the accident and sustain an accident-related impairment that causes “a substantial inability to perform the essential tasks of that employment”. The test becomes more stringent after 104 weeks post-accident, as s. 6(2)(b) then requires an insured person to show a “complete inability” to perform any role that they are “reasonably suited by education, training or experience”. The onus is on the applicant to demonstrate entitlement on a balance of probabilities.

13Relying on Dr. Dost’s opinion that her migraines had significantly improved, the Tribunal determined that the applicant could return to part-time office work as of April 2024. Office work was found to be a reasonably suited role for the applicant on account of her education and employment history. Taken together, these findings allowed the Tribunal to conclude that she did not exhibit a “complete inability” to perform any reasonably suited role.

14As part of this analysis, the Tribunal dismissed the applicant’s position that its post-104 week assessment should go beyond the literal wording of s. 6(2)(b). As opposed to focusing solely on whether she can perform any role that is “reasonably suited by education, training or experience”, the applicant argued that a reasonably suited role must also be assessed by way of the job’s status, reward, etc. Relying on Traders General Insurance Company v. Rumball, 2022 ONSC 7215 (“Rumball, ONSC”), the Tribunal did not accept the applicant’s proposed framework. Rather, it concluded that the s. 6(2)(b) analysis was constrained to only those factors explicitly mentioned in the Schedule, i.e., education, training, and experience.

15The Tribunal summarized its findings at paragraph 60 of the decision (emphasis added):

As noted above, I find that the applicant can engage in part-time employment as an office clerk. This is because the intensity and frequency of her headaches have decreased significantly, as noted in the report of Dr. Dost. There are days where she is free of headaches and could engage in employment as an office clerk, a position that she is reasonably suited by education and experience. This satisfies the requirement of engaging in “any employment” as an employer’s requirement to work regular hours is not a factor to be considered under [Rumball, ONSC]. Consequently, I find that the applicant does not meet the post-104 disability test because she has the ability to engage in employment.

16The applicant takes issue with this line of reasoning, because it does not follow the Court of Appeal for Ontario’s later ruling in Traders General Insurance Company v. Rumball, 2025 ONCA 656 (“Rumball, ONCA”). The applicant submits the Court of Appeal “went to some pains” to differentiate its post-104 week IRB analysis from the one used by the Divisional Court (at paragraph 42):

In sum, in determining entitlement to IRBs in the post-104-week period, the decision maker must decide, based on the evidence, if the insured person is completely unable to work in any job or capacity for which they are suited by education, training or experience. This is necessarily a contextual analysis. In order to make this determination, the decision maker must consider all the relevant evidence and factors, including whether any alternative employment is employment in a competitive, real-world setting that is comparable to the insured’s former employment in nature, status and reward. These factors are not stand-alone components of the test but inform the evidence-based determination of whether the insured person has suffered a complete inability to engage in employment for which they are reasonably suited by education, training or experience.

17The applicant also adds that a narrow interpretation of s. 6(2)(b) runs counter to the Court of Appeal’s ruling in Tomec v. Economical Insurance Company, 2019 ONCA 882, namely, the Schedule must be interpreted to promote the remedial nature of the accident benefits regime.

18I agree with the applicant that the Tribunal incorrectly overlooked the reasoning in Rumball, ONCA. Though this case was only released about a week before the Tribunal’s decision was issued, it was still binding jurisprudence. The holistic analysis used in Rumball, ONCA stands in contrast to the Tribunal’s determination it could not consider “an employer’s requirement to work regular hours”—a finding based on how this proposed factor was not explicitly listed in s. 6(2)(b). By not accounting for this additional factor based on a narrow reading of the Schedule (a reading that did not account for binding case law), the Tribunal committed a legal error.

19However, despite establishing this error, I am not satisfied that it would likely have impacted the outcome of the IRB analysis. Specifically, even if the Tribunal had included this discarded factor in its analysis, I find it would not have likely reached a different result.

20Aside from those factors explicitly listed in s. 6(2)(b), there is no definitive list that a decision-maker must weigh when applying the post-104 week test. The Court of Appeal did not add new elements to the IRB test, but rather accepted that evidence about job status, remuneration, etc. may assist a decision-maker when assessing what constitutes “reasonably suited” employment. In the words of the respondent on reconsideration, the Court found these additional factors could be “contextual considerations” for the post-104 week analysis.

21While an element of the applicant’s case was incorrectly dismissed, I still find the Tribunal performed a contextual analysis that largely aligned with the binding guidance from Rumball, ONCA. In the decision, the Tribunal conducted a detailed assessment of the available medical and vocational evidence to conclude that there is a reasonably suited form of employment that the applicant can perform: i.e., office work. Though the part-time vs. full-time nature of this work is not expressly weighed in the analysis, the Tribunal’s conclusion is grounded in the finding that the applicant has not shown a “complete inability” to perform “any employment”. The stringent threshold of s. 6(2)(b) was, therefore, weighed against the finding that office work is a possible form of employment that the applicant can engage in, and—in making this finding—the Tribunal was able to conclude that the applicant did not meet her evidentiary burden on a balance of probabilities.

22Furthermore, even if the part-time nature of this work had formed a part of the Tribunal’s analytical framework, I am not satisfied that the outcome of the decision would likely have been different. Rather, the removal of this single “contextual consideration” from the analysis (a factor that is not explicitly required by either Rumball, ONCA or the Schedule) is not enough for me to find that its inclusion in the analysis would likely have impacted the outcome of the Tribunal’s otherwise comprehensive IRB assessment.

23I then note that the primary finding the Tribunal relied upon to deny the post-104 week IRB (as of April 23, 2024) was its acceptance of Dr. Dost’s opinion about the applicant’s headaches. As the Tribunal reasoned at paragraph 61, the end date of April 23, 2024 came from the fact that it was “the day before Dr. Dost’s assessment confirmed the applicant’s headaches have significantly improved.” Due to the centrality of this finding, I find the inclusion of the part-time vs. full-time factor into the IRB analysis would not have likely altered the outcome of the decision. Put another way, this factor would likely have had little to no impact on the Tribunal’s conclusion that the applicant’s improving headaches played a major part in her ability to return to work after April 23, 2024.

24Taken together, while the applicant has shown that the Tribunal committed a legal error, I do not find this error triggers Rule 18.2(b).

Rule 18.2(b) – Dr. Dost’s Expert Evidence

25Turning to the applicant’s position that the Tribunal misapprehended the expert evidence from Dr. Dost, I find this argument is an attempt to re-weigh evidence. As noted above, the purpose of the reconsideration process is not for parties to put forward evidence and arguments that were considered at first instance. Rather, the requesting party must show how this evidentiary analysis was incorrect either factually or legally.

26In this case, the applicant argues that the “Tribunal’s finding that the Applicant can sustain part-time work fails to consider the totality of Dr. Dost’s findings”, namely, his opinion “that the increased activity of returning to work would increase headaches and limit vocational capacity and vocational options.”

27This argument does not accurately capture the full scope of the Tribunal’s review of this evidence. At paragraph 51 of the decision, the Tribunal specifically mentions this aspect of Dr. Dost’s report (emphasis added):

The applicant spoke to improvement of her headaches and how this effects her ability to work in Dr. Dost’s report:

She indicates to me that if the neck pain and right arm symptoms disappeared she would be able to gain employment as the headaches have improved with prophylactic and abortive therapy as noted above. However, was uncertain the degree to which she would be able to work as increased activities levels trigger headaches.

28I note that this quotation focuses on the applicant’s own personal understanding of her limitations, as opposed to Dr. Dost’s opinion about this potential barrier. However, it is still clear that the Tribunal recognized this aspect of the report, and I am, therefore, satisfied that the possibility of headache exacerbation formed part of its IRB analysis.

29While the applicant may claim that the Tribunal erred in its assessment of this report, I do not find this ground has been made out.

CONCLUSION & ORDER

30The applicant’s request for reconsideration is dismissed.

Craig Mazerolle

Vice-Chair