RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 25-002608/AABS
Case Name: Elsie Cardoso v. Definity Insurance Company
Written Submissions by:
For the Applicant: Bassan Hagos, Counsel
For the Respondent: Stephen Whibbs, Counsel
OVERVIEW
1On February 11, 2026, the applicant requested reconsideration of the Tribunal’s decision released January 21, 2026 (“decision”).
2Stemming from an accident on November 27, 2019 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 five-day videoconference hearing. In the decision, the Tribunal found the applicant did not establish that she was catastrophically impaired under Criterion 8. It further dismissed the applicant’s claims for additional attendant care benefit (“ACB”) payments, as well as her requests for housekeeping benefits, medical/rehabilitation benefits, 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 her request. The request is limited to the catastrophic impairment and the ACB, and the applicant is asking the Tribunal to order a rehearing on these issues.
5The respondent asks the Tribunal to dismiss the request for reconsideration.
RESULT
6The applicant’s request for reconsideration is dismissed.
ANALYSIS
7The 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.
Catastrophic Impairment under Criterion 8
8I do not find the applicant has established an error regarding the denial of catastrophic impairment that would engage Rule 18.2(b).
9The applicant claims the Tribunal did not “meaningfully engage with the evidentiary foundation” of the opinion from her catastrophic psychiatric assessor, Dr. Shrenik Parekh. Specifically, she argues the Tribunal interpreted this assessor’s diagnosis of Somatic Symptom Disorder (“SSD”) as one “based on subjective pain complaints” and “generalized emotional distress”. By treating the diagnosis as a “purely subjective or behavioural condition”, the applicant claims the Tribunal focused on “isolated examples of task initiation or completion”, even though Dr. Parekh discouraged this kind of analysis for individuals with SSD and objective signs of neuropathic pain. The applicant cites Cyples v. Intact Insurance Company, 2025 CanLII 3778 (ON LAT) (“Cyples”) to support her position.
10The Tribunal conducted an extensive assessment of the applicant’s claim of catastrophic impairment under Criterion 8 from paragraphs 29 – 81 of the decision. The Tribunal laid out the legal test the applicant had to meet, i.e., demonstrating a Marked Impairment in at least three of the four domains of human activity detailed in the AMA Guides. It then assessed the relative merits of the parties’ arguments and evidence. Notably, the Tribunal recognized that the parties’ psychiatric assessors both diagnosed the applicant with accident-related impairments. As a result, it reached the following conclusion at paragraph 38:
Given the mental or behavioural disorder diagnoses of the applicant and respondent’s assessors, there is no dispute that the applicant suffers from a mental or behavioural disorder as a result of the accident. Therefore, the only issue in dispute is whether her accident-related mental/behavioral impairments constitute marked impairments in three out of four of the domains of functioning or one extreme impairment under the Guides.
11As such, the key question for the Tribunal was whether the applicant demonstrated the level of impairment needed under Criterion 8. In the discussion that followed, the Tribunal considered different evidentiary sources as a means to compare the functional observations made during various assessments and treatment sessions. The Tribunal also considered surveillance evidence and the applicant’s testimony. By contrasting the observations and descriptions presented in these different pieces of evidence, the Tribunal concluded that Dr. Parekh’s account of the applicant’s level of functioning was at odds with the overall evidentiary record.
12Once again, the applicant claims this analysis is marred by the Tribunal’s conception of her SSD diagnosis as a solely subjective and emotional condition. Even if I accepted her argument that the Tribunal erred in its understanding of this diagnosis, I do not see how the applicant’s preferred framework would likely have impacted the outcome. The Tribunal accepted that the applicant had a mental or behavioural disorder, but she did not establish the level of impairment needed to be deemed catastrophically impaired under Criterion 8. The applicant has not provided a compelling explanation for why this alternate framing of her SSD diagnosis would likely have changed the way the Tribunal viewed her functional limitations, especially as these findings were based on observations made by treating practitioners, the parties’ assessors, the surveillance evidence, etc. Put another way, even if the Tribunal explicitly incorporated the objective aspects of Dr. Parekh’s SSD diagnosis into its analysis, it would likely have made the same findings about her functionality, namely, Dr. Parekh’s account is not corroborated by the other evidence.
13In a similar vein, the applicant claims the Tribunal “improperly discounts Dr. Parekh’s reliance on the occupational therapy catastrophic impairment assessment conducted by Mr. Varun Madan”. According to the applicant, Dr. Parekh correctly integrated the significant functional limitations found by Mr. Madan into his opinion, yet the Tribunal failed “to engage with that integration”.
14Aside from the fact that there are several instances in the decision where Mr. Madan’s opinion is discussed, I note that the Tribunal expressly identifies the connection between these two reports when addressing the domain of Social Functioning (at paragraph 53):
Dr. Parekh cites the applicant’s reporting to Mr. Madan that she has very little motivation to socialize post-accident. She does not like to meet people, declines invitations, does not like to entertain at home and feels embarrassed due to her injuries.
15The applicant may contend that more focus should have been placed on the interaction between these assessors, but this complaint is not an error that triggers Rule 18.2(b). Rather, it is a disagreement with the Tribunal’s weighing of the evidence.
16Second, the applicant submits that the Tribunal improperly relied on surveillance to counter the expert opinion of Dr. Parekh. Not only was this unreliable evidence preferred over the expert evidence (all without any engagement with Dr. Parekh’s handling of neuropathic pain), but the applicant claims the Tribunal’s approach to surveillance does not align with the AMA Guides.
17I do not accept this ground. After reviewing several other pieces of evidence, the Tribunal turned its attention to the surveillance when discussing the domain of Concentration, Persistence and Pace (at paragraph 68, emphasis added):
In addition, surveillance evidence relied on by the respondent shows the applicant engaging independently in various activities. On February 1, 2024, the applicant is seen attending to multiple errands. She is observed leaving her house unaccompanied at 10am, driving to a bakery and walking in and making purchases, attending RBC Bank, Sobeys grocery store to shop, driving to Royal York TTC station to make a purchase, going through Tim Hortons drive-thru and returning home around 11:30 am. In the afternoon she drove to her parents at 2 pm, picked them up and drove them to St. Joseph’s hospital. Other surveillance conducted that week showed days of multiple errands that the applicant undertook by car, driving throughout the day. While I appreciate that surveillance is a snapshot in time, the surveillance taken over a number of days shows a level of functioning in activities, including accessing the community through driving, shopping walking and interacting with people in stores and elsewhere. She is able to navigate to her intended destinations without getting lost, find her car where she parked it on the street or parking lot, and pay for her purchases, including pumping gas and paying with her credit card.
18Adjudicators are empowered to consider different aspects of the hearing record when assessing the relative weight that specific pieces of evidence will receive. Unless a party can show that a factor is legally impermissible (or that a finding is factually incorrect), these assessments will not be disrupted on reconsideration. The applicant may disagree with the weight assigned to the surveillance, but this complaint is another dispute with the Tribunal’s assessment of the evidence. The quotation above shows that the Tribunal was alive to the fact that surveillance may not capture the full scope of one’s functional capacities. Yet, it was still satisfied that this evidence presented a compelling account of the applicant’s ability to interact with the community, e.g., the Tribunal highlighted how this surveillance was “taken over a number of days”. Additionally, the decision makes clear that the Tribunal relied on more than just the surveillance to support its finding that the applicant was able to maintain attention and focus when performing tasks.
19I further note that the applicant’s argument about a lack of engagement with the AMA Guides appears to be another disagreement with the outcome. The applicant claims the Guides “expressly caution against equating the ability to perform discrete tasks with useful functioning”, especially as a Marked Impairment is not a complete inability to perform the tasks in a given domain. The applicant has not demonstrated that this type of narrow analysis took place, as I am satisfied that the Tribunal engaged in an extensive review of the evidence, and its reasoning was not solely based on isolated observations of functionality revealed in the surveillance evidence.
20Finally, I do not find the applicant’s reliance on Cyples is compelling. The applicant claims the case is a good demonstration of how “an expert’s failure to adequately address the diagnosis of [SSD] and its impact on functioning” will undermine the reliability of that opinion. Beyond the fact that Tribunal case law is not binding, both parties’ experts accepted that the applicant sustained a mental or behavioural disorder. As such, the Tribunal’s analysis correctly focused on whether the applicant’s demonstrated the requisite level of impairment.
21Further, the applicant claims that the adjudicator in Cyples “carefully analyzed how depressive amotivation and [SSD] affected the applicant’s ability to initiate and complete daily activities”, an analytical step that the Tribunal allegedly did not take in the present case. Again, this complaint appears to involve the Tribunal’s weighing of the evidence, as she has not shown how the Tribunal erred factually or legally in this regard. Rather, I am satisfied that there was a clear and compelling account for why the Tribunal found the parties’ evidence allowed it to reach the conclusions it made about Criterion 8.
22Taken together, the applicant has not demonstrated any errors related to the Tribunal’s denial of catastrophic impairment that would trigger Rule 18.2(b).
Attendant Care Benefit
23Turning to the ACB, the applicant first claims the Tribunal erred in finding she “failed to establish entitlement to attendant care benefits for the periods in dispute, notwithstanding uncontroverted evidence that attendant care was both approved by the insurer’s own assessor and incurred”. According to the applicant, she filed an account summary from her care provider (a document that the respondent itself relied upon to issue its partial payments), yet the Tribunal found there was insufficient evidence to show any services had been incurred.
24The core of the Tribunal’s incurred analysis is found at paragraph 86:
I find the applicant has not established that any ACBs are payable for the periods in dispute because she did not direct me to evidence that ACB expenses in the amounts in dispute have been incurred by her to the date of the hearing. In her closing submissions, the applicant referred to an account activity summary of Advanta that had been entered as an exhibit, but did pinpoint anything within the summary from [sic] me to consider. The applicant did not refute the respondent’s submission that she has not incurred the monthly ACB of $851.74 since it was approved in July 2023. As well, the applicant did not provide submissions as to whether ACBs are reasonable and necessary pursuant to s.19 of the Schedule, specify what amount of ACBs had been incurred and when, or direct me to specific evidence in the exhibit to demonstrate incurred. It is not the Tribunal’s role to go through a party’s evidence to make their case for them: see Dooman v. TD Insurance Company, 2025 ONSC 184 at para. 50 (Div. Ct.).
25Not only is it clear that the Tribunal turned its attention to the account summary, but, more importantly, it found she “did not refute the respondent’s submission that she has not incurred the monthly ACB of $851.74 since it was approved in July 2023”. The applicant may now claim that this account summary is incontrovertible evidence that these services were all incurred, but it appears she did not make this argument at first instance. Reconsideration is not a venue for raising arguments that could have been reasonably raised at first instance. In this case, the applicant had an opportunity during the hearing to address the respondent’s claim that the approved services had not been incurred in full.
26In a related vein, the applicant contends that the Tribunal erred by conflating the respondent’s approval of a certain ACB amount and the actual payment of this amount. In particular, the applicant submits that the respondent has only partially paid the monthly amount it approved, so there are balances owing to her service provider. According to the applicant, these unpaid amounts are evidence that the full number of hours and services had, in fact, been incurred.
27I do not agree. Not only does this allegation seem to misinterpret the findings made by the Tribunal (i.e., it accepted the respondent’s position that some, but not all, of the approved amount had been incurred), but I am not clear that the applicant has shown how this allegation amounts to an error. The applicant believes her evidence shows that the full monthly ACB amount has been incurred, but the Tribunal found she did not meet this onus. Aside from her disagreement with this finding, the applicant has not shown how the Tribunal erred in not accepting the amounts owing as evidence that the services had been incurred. Disagreement alone is not enough to trigger Rule 18.2(b).
28Finally, the applicant argues the Tribunal failed “to integrate the Applicant’s optional benefits into the attendant care analysis”. Specifically, she argues that removing this context from the analysis meant the Tribunal’s reasoning was “constrained by the temporal and structural limitations applicable to standard coverage”. The applicant cites Botbyl v. Heartland Farm Mutual Inc., 2025 ONSC 3349, to support her position that a high level of importance has been placed on allowing insured persons to access the optional benefits they have paid for.
29The applicant has not provided a compelling explanation for why her optional benefits would have had any impact on the assessment of whether her attendant care services are reasonable and necessary. Similarly, I am not clear how this level of benefits would have had any bearing on proving that the services had been incurred.
30I am also not satisfied that the applicant has shown the Tribunal failed to account for the practical impact of these benefits in the timing of her ACB claim. At paragraph 84, the Tribunal explicitly recognized that the time limit on payment of benefits following the 260-week mark post-accident did not apply to this claim:
Section 20(1) provides that for a non-CAT impaired person, no ACBs are payable for expenses incurred more than 260 weeks after the accident. Such limitation does not apply if the person has sustained a CAT impairment, or if the person has optional benefits. The parties acknowledge that the applicant has optional benefits, as is also indicated in the application to the Tribunal.
31The Tribunal also noted, at the start of paragraph 86, that it was considering whether any attendant care services had been incurred “to the date of the hearing”. The 260-week mark post-accident was on November 20, 2024, and the start of the videoconference hearing was November 3, 2025. Entitlement to the ACB was considered past the 260-week mark.
32As a final point, the applicant argued that the Tribunal effectively discounted the recommendations made by Vanessa Dwyer, the respondent’s occupational therapy assessor. I do not agree with this reading of the decision, as, at paragraph 88, the Tribunal explicitly relied on Ms. Dwyer’s opinion to support one of its findings.
33Taken together, I find the applicant has not established any error that meets the standard of Rule 18.2(b) as it relates to the ACB denial.
CONCLUSION & ORDER
34The applicant’s request for reconsideration is dismissed.
Craig Mazerolle
Vice-Chair
Released: May 29, 2026```