RECONSIDERATION DECISION
Before:
Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number:
24-014616/AABS
Case Name:
Vi Thanh Huynh v. TD General Insurance Company
Written Submissions by:
For the Applicant:
Aline Avanessy, Counsel Zoe Meditskos, Paralegal
For the Respondent:
Crystal Law, Counsel Jagdeep Khela, Counsel
OVERVIEW
1On January 6, 2026, the applicant requested reconsideration of the Tribunal’s decision released December 17, 2025 (“decision”). The respondent followed suit with its own request for reconsideration on January 7, 2026.
2Both requests are addressed in this reconsideration decision.
3Stemming from an accident on September 5, 2013 and a request for benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”), the parties participated in a videoconference hearing. In the resulting decision, the Tribunal determined that the application could proceed to be adjudicated, pursuant to s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G (“LAT Act”). It further found the applicant had not demonstrated that he was catastrophically impaired, but he was entitled to the five treatment plans in dispute, plus interest and an award. The Tribunal denied the respondent’s costs request.
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 only checked off Rule 18.2(b) on his Request for Reconsideration form, though he references all three Rule 18.2 criteria in his supporting submissions. His request is limited to the issue of catastrophic impairment, as he is asking the Tribunal to find he is catastrophically impaired based on Criterion 8.
6The respondent asks the Tribunal to dismiss the applicant’s request.
7The respondent relies on Rule 18.2(b) to support its request. The respondent’s request is limited to the treatment plans and the award. It claims the Tribunal misapplied the test under s. 7 of the LAT Act, so it is asking the Tribunal to find the applicant is not entitled to any of these plans or the award.
8The applicant asks the Tribunal to dismiss the respondent’s request for reconsideration.
RESULT
9The applicant’s request for reconsideration is dismissed.
10The respondent’s request for reconsideration is dismissed.
ANALYSIS
11The 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.
Applicant’s Request for Reconsideration
12The applicant raises two main grounds to support his request for reconsideration. First, he takes issue with the Tribunal’s determination that he could not rely on the occupational therapy community functional assessment report authored by Janice Kim, OT (dated January 2, 2025, “OT report”). The applicant also claims the Tribunal did not use the proper analytical framework to assess his claim for catastrophic impairment under Criterion 8.
Admission of the OT Report
13By disallowing him from relying upon his late-filed OT report, the applicant claims the Tribunal unfairly permitted “an administrative error” to dictate how the hearing would unfold. In particular, the applicant states that other evidence presented during the hearing “unequivocally established” that a clerical error led the clinic who prepared the OT report to leave it out of a larger package of reports it sent to the respondent. As admitted in its adjuster’s testimony, the respondent knew there was an “odd” omission of a community functional OT report in this package. According to the applicant, this admission from the adjuster “directly contradicts the Tribunal’s conclusion that the Applicant bore responsibility for the omission and refutes any suggestion of surprise or prejudice”.
14Following on this submission, the applicant further claims the Tribunal “entirely overlooked” factor (c) under Rule 9.3, i.e., “the extent to which the substance of the information or testimony lies within the knowledge of the other party”.
15Taken together, the applicant submits that consideration of the OT report would have significantly altered the Criterion 8 analysis. Or, as the applicant states in his reconsideration submissions: “Had the report been admitted, the Tribunal would have had highly probative evidence directly addressing the Applicant’s community functioning, employability, and sustainability of activity evidence central to the Criterion 8 analysis.”
16I do not find the applicant has established a ground for reconsideration based on the Tribunal’s decision not to allow the OT report into the hearing record.
17In addition to “the extent to which the substance of the information or testimony lies within the knowledge of the other party”, the factors contained in Rule 9.3 include: reasons for the non-compliance; the relevance of the document; prejudice to the other party; and whether the other party opposes the admission.
18According to paragraph 11 of the decision, the OT report was first delivered to the respondent “two business days prior to the start of the hearing”. This timeline meant the report was not delivered in accordance with the deadlines set out in the case conference report and order, nor did the applicant comply with the requirements for document exchange under Rule 9.4.3.
19The Tribunal addressed the applicant’s request for permission to rely on this report at paragraphs 11 – 19. The Tribunal laid out the parties’ positions, and it applied several of the factors from Rule 9.3. Key to the Tribunal’s analysis was the relative prejudice it found each party would face from permitting the applicant to rely on the report. Of note, the Tribunal found “virtually no prejudice” would face the applicant from denying him permission to rely on this OT report, because the expert opinion that formed the basis of his catastrophic impairment claim made almost no reference to this assessment (at paragraph 18):
I find virtually no prejudice to the Applicant in omitting the OT community report. The OT in-home assessment report, authored by the same OT as the OT community report, remains part of the hearing record and is the central part of the Applicant’s catastrophic impairment reports. In fact, the catastrophic impairment assessment report by, Dr. G. Ilacqua, psychologist, which is the basis for the Applicant’s claim that he sustained a catastrophic impairment, appears to rely entirely on the findings of the in-home assessment and makes virtually no reference to the OT community assessment in the report. The OT community report is supplemental to the OT-in-home report and is in addition to a considerable number of medical documents provided by the Applicant for this hearing, which speak to his functionality. In addition, the Applicant arranged for the author of the OT community report to testify at the hearing, who can also speak to the Applicant’s ability to function.
20Conversely, the Tribunal had concerns about the prejudice that would face the respondent if the OT report was admitted (at paragraph 16):
I find that the Respondent is prejudiced by the late-filing because the OT community report is a new report following a potential change in the Applicant’s circumstances, which warrants time for the Respondent to review and respond. I find that the Respondent cannot review and respond to the document after the hearing has started because it would be inefficient and prejudicial to adjourn the hearing due to the Applicant’s negligence in disclosure. The parties have prepared for the hearing, including securing their witnesses, and it would be inefficient and prejudicial to force them all to reschedule their attendance due to improper disclosure of a supplementary report.
21Additionally, the Tribunal expressly addressed the applicant’s argument about the respondent’s knowledge of this late-filed report at paragraphs 13 and 17:
Up front, I acknowledge that the Respondent could have followed up with the Applicant about the missing report. However, I think this is beyond the responsibility of the Respondent. While it has a role to continuously adjust the Applicant’s claim, it is not required to ensure proper disclosure by the other party and its failure to contact the Applicant following receipt of the report does not mitigate the fact that the Applicant never served the report upon it.
I also note that the service of documents is the responsibility of the Applicant and, if the service of documents is left to third parties, as was the case here, the Applicant is liable for the failures of the third party. In this case, it is the Applicant’s negligence in serving documents that resulted in the late disclosure. The Applicant left the service of documents up to the assessment facility and never took any action to ensure that all the documents were properly served upon the Respondent. The initial set of catastrophic impairment assessment reports were sent to the Respondent on May 5, 2025. That package of documents did not include the OT community report. The Applicant served a document brief on the Respondent on September 19, 2025, which did not include the OT community report. The Applicant served a supplementary document brief on September 26, 2025, but it did not include the OT community report. It was only on October 9, 2025, the last business day before the hearing, that the Applicant served an updated document brief which included the OT community report.
22The applicant may disagree with these findings, but disagreement alone is not sufficient to trigger reconsideration under Rule 18.2. The Tribunal considered this part of the applicant’s case, and it provided a fulsome explanation for why it did not accept his arguments about the respondent’s purported responsibility to follow-up when a document appears to be missing.
23I do accept the applicant’s position that there was no explicit consideration of Rule 9.3(c). However, I see no error or unfairness stemming from this oversight. Aside from the fact that Rule 9.3 states that the five factors listed in this Rule “may” be considered (not “shall”), I find the applicant’s understanding of the scope of this factor is incorrect.
24Even if I accept the respondent was aware of a missing report, this awareness is not the “information” that is being referred to in Rule 9.3(c). This factor is concerned with assessing whether the findings, observations, recommendations, etc. contained in a late-filed report or clinical note are “within the knowledge of the other party”. Put another way, this factor is focused on “the substance of the information” contained in the late-filed document, not on the details of how this document was prepared, served, etc. Therefore, even if there was no explicit appraisal of this factor, I see no error or unfairness stemming from this approach.
Analytical Framework for the Criterion 8 Assessment
25Turning to the applicant’s arguments about the Tribunal’s Criterion 8 analysis, I find these submissions are further disagreements with the outcome of the decision. No ground for reconsideration has been established in this regard.
26First, according to the applicant, the Tribunal incorrectly assessed this claim based on whether he required post-accident hospitalization or medication changes—elements that do not form part of the Criterion 8 framework. This reading of the decision is overly narrow. Though there is a comparison between the applicant’s ability to manage his psychological health pre- and post-accident (including how there was a series of pre-accident hospitalizations vs. no post-accident hospitalizations), this contrast formed one part of a larger, holistic analysis. For instance, when assessing the applicant’s expert evidence related to Adaptation, the Tribunal commented at paragraph 64 that the experts’ “comments and observations do not reflect an impairment that significantly impedes useful functioning”. There is also a discussion under this same sphere about the likely cause of his unemployment. Taken together, I find the applicant’s attempt to define the Criterion 8 analysis as one narrowly focused on elements like hospitalizations and medications is incorrect.
27The applicant then argues that the Tribunal did not take the proper longitudinal approach to assessing the impact of his chronic pain and psychological sequelae. Instead, the Tribunal allegedly focused on “temporally distinct medical evidence” to assess the functional impact of these conditions. The applicant supports the need for a longitudinal approach by citing Tribunal caselaw “which confirm that the progression of pain and functional deterioration over time is a critical component of the catastrophic impairment analysis”.
28In a similar vein, the applicant claims the Tribunal incorrectly viewed his diagnoses of chronic pain and Somatic Symptom Disorder through a strictly physical lens, such that it found he could not work due to “purely physical impairments”. The applicant also alleges that the Tribunal “minimized” evidence showing his pain had significant psychological and cognitive impacts—further proof that these complaints cannot be seen solely through a physical lens.
29Once again, I find these complaints about the need for a longitudinal approach and the handling of his diagnoses are disagreements with the Tribunal’s weighing of the evidence. Not only does the Tribunal consider medical evidence and testimony that detail events over many years pre- and post-accident, but, at several points in the decision, the Tribunal expressly addressed these diagnoses of chronic pain and Somatic Symptom Disorder. For instance, at paragraph 66, the Tribunal assessed the assertion that his diagnosis of Somatic Symptom Disorder was impeding his ability to work. It found this position did not align with the evidence, including the applicant’s own testimony. I also note that the applicant himself concedes that psychological evidence was “acknowledged” by the Tribunal. Without showing how these considerations were either legally impermissible or factually incorrect, I see no error or unfairness with the Tribunal’s evidentiary approach or its handling of the applicant’s diagnoses.
30The applicant also argues that, while not determinative, the Tribunal did not “properly consider” how the approval of his ODSP application is corroboration for his claim of a catastrophic impairment. The applicant’s receipt of ODSP was considered in the decision at paragraphs 66 and 67. The Tribunal also detailed the disabilities listed on the applicant’s ODSP application at paragraph 58. While the applicant may argue that more weight should have been placed on this evidence, I find this argument is another disagreement with the outcome.
31Finally, the applicant submits the adjudicator who decided his case used a different approach than the one he used in an earlier Criterion 8 case: i.e., Jones v. Wawanesa Mutual Insurance Company, 2024 CanLII 86447 (ON LAT) (“Jones”). Not only did this earlier case involve chronic pain and Somatic Symptom Disorder, but, according to the applicant, the adjudicator did not require evidence of hospitalizations and medication changes, nor did he treat the applicant’s pain as a purely physical experience. Overall, the applicant believes the approach in Jones is the correct analytical framework for Criterion 8.
32Aside from the fact that Tribunal cases are not binding, the analysis needed to assess an alleged catastrophic impairment under Criterion 8 is highly fact-specific and individualized. When conducting this analysis, an applicant’s home life, social interactions, employment (or employment-like) capabilities all need to be assessed. There is also a significant amount of medical and vocational evidence that needs to be considered—evidence that will differ from person-to-person. Therefore, while there may be helpful guidance that an adjudicator can glean from other Criterion 8 cases, I am not satisfied that the applicant has shown how this specific adjudicator erred or acted unfairly in this matter. Rather, it is clear the adjudicator turned his attention to the facts at hand, and he found the applicant did not meet his evidentiary onus. The applicant has not demonstrated how any of these analytical choices or findings trigger Rule 18.2.
33Taken together, the applicant has not established a ground for reconsideration.
Respondent’s Request for Reconsideration
34As noted above, the disputed treatment plans were allowed to proceed to be adjudicated due to the Tribunal’s use of s. 7 of the LAT Act. The respondent claims the Tribunal did not properly exercise its discretion under s. 7. It contends the Tribunal should have found the plans were barred from being adjudicated due to the applicant’s significant breaches of the limitation period set out by s. 56 of the Schedule.
35There is no dispute that the applicant did not appeal the denials of the five treatment plans within the two-year limitation period. Therefore, the Tribunal turned its attention to the discretionary power provided by s. 7 of the LAT Act. After weighing the factors from Manuel v. Registrar, 2012 ONSC 1492 (“Manuel”), the Tribunal determined that the “justice of the case” leaned in favour of granting an extension of the limitation period.
36Citing the importance of finality from Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44, the respondent argues that the Tribunal improperly allowed the claim to proceed in the face of a lengthy delay. The respondent challenges this conclusion, arguing the Tribunal incorrectly found the delay was “greatly outweighed by the limited prejudice to the Respondent”. The respondent highlights how the Tribunal approved the plans based on evidence and events that post-date its insurer’s examinations from 2019 and 2021.
37Turning to the other factors from the Manuel test, the respondent submits the Tribunal also erred by relying on the requests the applicant made to get his file to conclude he showed a bona fide intention to appeal. According to the respondent, these records can be used for any number of purposes aside from preparing a Tribunal application. It also highlighted the applicant’s prior, withdrawn applications as evidence of his intention not to appeal these denials.
38Finally, when considering the merits of the appeal, the respondent submits the Tribunal erred by conflating the applicant’s need for treatment with the severity of his injuries. By looking to the issue of catastrophic impairment to ground the merits analysis, the respondent submits the Tribunal “incorrectly found merit to the Applicant's appeal based on an irrelevant issue and failed to undertake an analysis of the merits of each disputed treatment plans in considering whether the limitation period should be extended.”
39The core of the Tribunal’s Manuel analysis is found at paragraphs 30 and 31:
I find that the four Manuel factors, and therefore the justice of the case, weigh in favour of the Applicant. I agree with the Applicant that he has demonstrated a bone fide intention to appeal the denials within the appeal period. This is demonstrated by his counsel’s attempts to obtain a copy of his file from the Respondent on June 13, 2017, July 26, 2017, November 3, 2017, and May 9, 2018. Additionally, the Applicant previously filed applications with the Tribunal to dispute entitlement to almost all the issues listed. There is little prejudice to the Respondent in having it defend its denials, because they were addressed for the most part in the IE report by Dr. A. Oshidari, physician, and Dr. A. Marino, psychologist, dated June 24, 2019, and the IE report by Dr. J. Gordon, physiatrist, dated June 17, 2021. I also find merit to the Applicant’s appeal in that his injuries are severe enough to warrant a catastrophic impairment application and rebuttal to same by the Respondent.
I acknowledge that the length of delay weighs in favour of the Respondent. The Applicant ought to have disputed the denials within the 2-year limitation period. However, this is the only factor that weighs in favour of the Respondent and is greatly outweighed by the limited prejudice to the Respondent, the Applicant’s intention to appeal, and the merit to his appeal. Overall, the justice of the case supports a time extension.
40As the quotation demonstrates, the respondent’s submissions are, in effect, a request to re-litigate the parties’ arguments from the hearing. The parties’ positions on s. 7 were addressed at length, and the Tribunal provided comprehensive reasons to explain its conclusion. These reasons not only laid out its interpretation of the applicant’s file requests and applications, but the Tribunal showed it was attuned to the impact that this delay would have on the respondent. The respondent may contend that more focus should have been placed on its prejudice, but, once again, the reconsideration process is not a venue to ask the Tribunal to re-litigate arguments considered at first instance.
41I further note that, as articulated at paragraph 37 of Manuel, the merits analysis done under s. 7 is not meant to be a comprehensive appraisal of the appeal. Rather, the requesting party only needs to show “some merit to the case”. As such, even if the respondent may not agree with the Tribunal’s decision to link the severity of the applicant’s injuries to the likelihood of success for the disputed treatment plans, I do not see how changing the weight of this single factor would likely have impacted the outcome of this part of the decision. Not only is the threshold under this factor relatively low, but the Tribunal’s determination on how to weigh these factors and, thereby, engage this discretionary remedy, is afforded a significant amount of deference on review.
42Taken together, the respondent has not shown how the Tribunal’s decision to allow the applicant’s application to proceed under s. 7 triggers Rule 18.2(b).
43As an alternative argument, the respondent claims the Tribunal erred in granting the applicant’s request for an award. Briefly, the respondent argues that the log notes and its correspondence show it made efforts to reach out to the applicant’s representative, but these efforts were not reciprocated. According to the respondent, any delay in the adjusting of the applicant’s file is not its fault.
44The Tribunal explained its decision to grant an award at paragraphs 87 – 91:
The Applicant submits that the Respondent failed to reassess his claim and act in good faith. He submits that it failed to secure IEs, ignored recommendations for treatment, and his conditioned worsened and required surgery. The Respondent contends that the Applicant’s claim for an award is without merit.
I find that the Applicant is entitled to an award in the amount of $1,077.43, representing 10% of the amounts withheld or delayed. The award is connected to the plans dated June 16, 21, and August 21, 2017. The plans dated December 27, 2018 and March 8, 2021, do not attract an award because they were not unreasonably withheld or delayed.
I find that the 2017 plans were unreasonably withheld or delayed because the denials occurred at a time when the Respondent failed to work together with counsel for the Applicant. Counsel for the Applicant was retained and, on June 13, 2017, requested a copy of his accident benefits file for their review. This request went unanswered, and another request was made on July 26, 2017. That request was also ignored, and another request was made on November 3, 2017. Finally, the Respondent delivered a copy of the AB file on November 17, 2017.
This delay caused the Applicant to miss the IEs that the Respondent scheduled. This is because the Applicant was unsure whether he should attend the IEs because his counsel was precluded from providing fulsome advice on the issue due to the delayed delivery of his accident benefit file. Had the AB file been delivered in a timely manner, the Applicant would be in a better position to determine whether attending the IEs is in his best interest.
I have limited the amount of the award to 10% of the amounts withheld because I find the delay of five to six months to be a minor delay, considering the Applicant’s claim has a 10-year lifespan.
45Though the respondent may disagree with the Tribunal’s assessment of the efforts it made to try and work with the applicant, this complaint appears to be another disagreement with its weighing of the evidence. Adjudicators are empowered to assess and compare different aspects of the record when determining whether a party has met their onus. Unless the requesting party can show that a part of this analysis is legally impermissible or factually incorrect, these evidentiary assessments will not be disrupted on reconsideration.
46Taken together, I find the respondent has not established any error that meets the standard of Rule 18.2(b).
CONCLUSION & ORDER
47The applicant’s request for reconsideration is dismissed.
48The respondent’s request for reconsideration is dismissed.
Craig Mazerolle
Vice-Chair
Released: May 12, 2026