RECONSIDERATION DECISION
Before: Melanie Malach
Licence Appeal Tribunal File Number: 24-009619/AABS
Case Name: Primmum Insurance Company v. Monica Fuda
Written Submissions by:
For the Insurer: Crystal Law, Counsel
For the Insured: Jono Schneider, Counsel
OVERVIEW
1On March 20, 2026, the insured requested reconsideration of the Tribunal’s decision dated March 18, 2026 (“decision”).
2Stemming from an accident on January 7, 2023, the insured sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”), from the insurer. Following a written hearing, the Tribunal found the following:
On the preliminary issue, the insurer is not barred from proceeding with the repayment issue;
On the substantive issues,
i. The insurer is entitled to repayment of $10,571.43 in Income Replacement Benefits (“IRB”) for the period January 15, 2023 to July 18, 2023, together with interest, pursuant to s. 52(5) – (6);
ii. The insured is entitled to the treatment plan dated July 30, 2024, for $2,556.05 for a neurology assessment, plus interest under s. 51 of the Schedule;
iii. The insured is not entitled to the remaining treatment plans or OCF-6s;
iv. The insured is not entitled to an award; and
v. The insurer is not entitled to costs.
3I note that there was confusion in this matter when the two Applications brought by both parties were combined by the Tribunal as the insured was deemed the “respondent” and the insurer was deemed the “applicant”.
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 insured seeks reconsideration pursuant to Rule 18.2(a) and (b) of the Tribunal’s decision. The insured requests an Order setting aside the decision of the Tribunal on the preliminary issue, as well as the repayment of IRBs, the treatment plans and the OCF-6s. She is also challenging the procedural decision not to admit her Reply submissions. In the alternative, the insured requests an Order that the matter be remitted for a new hearing on the issues of repayment and treatment entitlement. In the further alternative, the insured submits that, if there is a repayment owing, that the Tribunal order it to be limited to repayment for the period following June 15, 2023 onward, in the amount of $1,885.71.
6The insurer submits that the insured’s request for reconsideration should be dismissed, as she has not proven that there are grounds for a reconsideration under Rule 18.2.
RESULT
7The insured’s request for reconsideration is granted in part.
8The insurer’s request for reconsideration of the Preliminary Issue is denied.
9Pursuant to Rule 18.4, the decision, with respect to the substantive issues and the procedural issue of the admission of the insured’s Reply, is cancelled.
10The matter shall be reheard by a new adjudicator, based on the original written hearing submissions and evidence.
ANALYSIS
11The 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(a) – Material Breaches of Procedural Fairness
12I am satisfied that the Tribunal committed a material breach of procedural fairness in excluding the insured’s Reply submissions, pursuant to Rule 18.2(a).
13The insured submits that there was a breach of procedural fairness in excluding her Reply submissions from the hearing. The insured submits that based on how the parties were each seeking payment from the other, both parties should have been afforded the opportunity to reply to each other’s submissions. The insured submits that only the insurer was afforded this opportunity. This lack of her own Reply has caused prejudice. Specifically, the insured submits that the insurer’s Reply raised new issues, in particular, the burden of proof as well as a position that the insured needed to clarify the ambiguity about which party is responsible for serving submissions first. The insured submits that, in her Reply, she addressed these two arguments.
14The insurer submits that no breach has occurred, as the Tribunal considered the substantive submissions filed by the insured on August 5, 2025, in which the insured made submissions regarding the alleged ambiguity as to which party was the “applicant” and which party was the “respondent”. The insurer further submits that the Tribunal considered the insured’s Notice of Motion, dated August 6, 2025, and the accompanying submissions. It argues that the insured’s Reply submissions were simply a restatement of her substantive submissions, which were ultimately included and considered. The insurer further submits that its Reply submissions dated August 6, 2025, essentially mirrored its Notice of Motion dated August 12, 2025, which the insured had the opportunity to reply to, but chose not to.
15The Tribunal addressed the issue of the insured’s Reply submissions at paragraph [24] of the decision as follows:
However, I do not permit her to file an additional filing styled as a reply. In substance, that document is a sur-reply, and no sur-reply is warranted here: the insured person already had the opportunity to file her reply under the three-step schedule in the CCRO, and the additional filing does not respond to any genuinely new matters raised for the first time in the insurer’s reply. Allowing a sur-reply would expand the record beyond what procedural fairness requires and would undermine the orderly structure of written hearings
16I agree that there was confusion in this matter when the two Applications were combined by the Tribunal as the insured was deemed the “respondent” and the insurer was deemed the “applicant”.
17Upon review of the submissions of the parties, the insurer filed its initial submissions on July 30, 2025; the insured filed its submissions late on August 5, 2025; the insurer filed Reply submissions on August 6, 2025; and the insured also filed Reply submissions on August 6, 2025.
18I agree that, as the insured submitted her own Application with the Tribunal as the applicant, she should also have been permitted to file Reply submissions as a matter of procedural fairness. Whether her motion materials contained similar submissions as her Reply submissions is largely irrelevant to the issue of procedural fairness. I do not agree with the Tribunal’s reasoning at paragraph [24] that the insured had the opportunity to file her Reply submissions under the three-step schedule in the CCRO. I find that this is exactly what the insured was attempting to do when she filed her Reply submissions on August 6, 2025, which were subsequently excluded from the hearing.
19I find that, by not allowing the insured’s Reply submissions to be part of the hearing, the insured has shown that the Tribunal committed a material breach of procedural fairness. She has established grounds for reconsideration based on Rule 18.2(a).
Rule 18.2(b) – Errors of Fact or Law
Preliminary Issue Analysis
20The insured is requesting reconsideration of the Tribunal’s finding that the insurer was not barred from proceeding on the repayment issue.
21Upon review of the insured’s reconsideration submissions, I find no specific submissions were made with respect to this issue, except to submit that this Order be set aside.
22I therefore find that the applicant has not shown the Tribunal made any error in this regard, and the reconsideration of this preliminary issue is denied.
IRB Repayment
23The insured is requesting reconsideration of the Tribunal’s decision that the insurer is entitled to an IRB repayment in the amount of $10,571.43 for the period from January 15, 2023 to July 18, 2023. She claims the Tribunal made an error of fact or law.
24The insured submits that the Tribunal committed an error of fact or law when it ignored the evidence and also made a finding of fact on a material point based on irrelevant evidence, (see: Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507; R. v. C.P., 2021 SCC 19 and Carfrae Estates Limited v. 2108790 Ontario Inc., 2012 ONCA 489).
25The insured argues that, at paragraph [53] of the decision, the Tribunal stated that complete proof is required to support the contention of no earnings from January to June 2023. The insured submits that, at paragraph [22] of the decision, there was a finding that the insured did not return to work until June 15, 2023. The insured submits that the evidence confirmed her return-to-work date, as well as the fact that she had not earned any income prior to this date. This evidence includes: two Records of Employment showing the relevant start and stop dates; an Employer’s Confirmation form; communications with the employer during the material times discussing plans for an attempt to return to work; and pay stubs. Despite this, the Tribunal ordered repayment of IRBs from January 15, 2023 to July 18, 2023, even though there was no evidentiary basis for this decision. The insured argues that the decision by the Tribunal is not “substantially correct”, as the only proven overpayment is for the period from June 15, 2023 to July 2, 2023, in the amount of $1,885.71.
26The insured further argues that the insurer never provided a proper notice of repayment, pursuant to s. 52 of the Schedule, as the notice was defective and not “substantially correct”. Despite knowing that the insured did not return to work until June 15, 2023, at no point did the insurer cure its notice. The insured argues that the Tribunal committed an error of law when determining that the demand for $10,571.43 was “substantially correct” to meet the requirements of s. 52 of the Schedule.
27Finally, the insured submits that the premise of the decision that a repayment is owing for the period of January 8, 2023 to June 14, 2023, was a finding that the insured did not comply with a s. 33 request. The insured submits that she complied with the insurer’s 33 requests that were made prior to her return to work on June 15, 2023. She argues that, in the insurer’s submissions, there was no argument made that by failing to comply with the s. 33 requests on July 10, 2023 or August 14, 2023, that she would be required to repay past IRBs. The insured argues that, as the insurer did not make this argument, it was an error of law that the Tribunal made this finding. The insured further argues that the consequences of non-compliance with s. 33 is to suspend the payment of a benefit, not retroactively make the benefit unpayable.
28The insurer submits that no error has been made regarding its entitlement to repayment of IRBs. It argues the repayment is owing between January 15, 2023 and June 14, 2023, because the insured was in non-compliance with s. 33 of the Schedule. The insurer submits that the insured did not confirm her entitlement to Short Term Disability coverage. The insured argues that s. 33(6) of the Schedule states that the insurer is not liable to pay a benefit in respect of any period in which the insured person fails to comply. Where the benefit has already been paid, it submits that an insurer is entitled to repayment for the period of non-compliance.
29The Tribunal at paragraph [37] states that,
The repayment issue turns on (1) whether the insurer gave proper and timely notice under s. 52; (ii) whether, on the facts, IRB was not payable (by reason of return to work and/or non-compliance with s. 33) or was paid as a result of misrepresentation; and (iii) whether the quantum claimed meets the substantial correctness standard.
30I agree with the Tribunal decision at paragraph [43] that “the insurer’s August 29, 2023 letter meets the required elements of a repayment notice as it identified the IRB benefit, the period in question and amount claimed.” I further agree with the Tribunal’s decision at paragraph [41] that, “…a repayment notice need only be substantially correct, not perfect, because the purpose of s. 52 is to give the insured fair notice of the basis and scope of the claim rather than to impose technical pleading standards.” I, therefore, find that there was no error in law with the finding that proper notice was given by the insurer of the repayment.
31I further find that the evidence supports the fact that the insured did not return to work until June 15, 2023. At paragraph [48] of the decision, the Tribunal states, that “Pay records indicate a resumption of full pre-accident earnings as of June 15, resulting in at least 4.714 weeks of non-payable IRB (June 15-July 18), amounting to $1,885.71 at $400.00 per week.” Therefore, it is clear that the Tribunal accepted that the applicant only returned to work on June 15, 2023. I can further accept the insured’s alternative position that there was an overpayment of IRBs paid from June 15, 2023 to July 18, 2023 in the amount of $1,885.71.
32The Tribunal then states at paragraph [48] that the insurer “also claims that additional overpayment occurred before June 15 due to non-compliance with s. 33).”
33At paragraph [52], the Tribunal notes that,
The “insurer relies on written requests, dated July 10 and August 14, 2023, for post-accident income information covering January 8 and June 14, 2023, asserting that complete proof (such as pay records/ROE or confirmation of no earnings) was not provided. The insured states she disclosed her return-to-work details, including pay stubs and an ROE, multiple times and maintains that there was no income prior to June 15.
34The Tribunal found at paragraph [53] of the decision that,
While the insured person says she provided some materials, the record does not show a complete and responsive package addressing the entire January-June period (for example, either comprehensive pay documentation or a clear, supported “no earnings” confirmation for each relevant sub-period). In the absence of complete proof, and given the compliant requests, I find that the insured person failed to comply with s. 33 for the January 8 – June 14 period.
35I find that the Tribunal has made an error in law that non-compliance with a s. 33 request made after the payment of an IRB benefit, would require repayment of an IRB. While I agree that s. 33 allows an insurer to suspend payments for any period of non-compliance after proper notice, the language in s. 33 does not permit an insurer to claim repayment for past paid IRB benefits. I agree with the insured that the Tribunal did not refer to any case law or authority for this finding.
36In addition, I find that the Tribunal’s finding that the insured did not show a complete and responsive package addressing the entire January-June period is inconsistent with its finding that it considered the insured person’s evidence that June 15, 2023 was the start date of a trial return. I find that there is no evidence that the insured worked or earned income in the period from January 8 to June 14, 2023.
37I, therefore, find that the Tribunal incorrectly ordered that the insurer is entitled to a repayment for the period from January 8, 2023 to June 14, 2023.
38For these reasons, I find that the insured has shown that the Tribunal made an error of law or fact such that it would likely have reached a different result had the error not been made.
Entitlement to Physiotherapy Treatment Plans
39The insured is requesting reconsideration of the Tribunal’s decision that she is not entitled to the treatment plans for physical therapy. The insured argues that it was an error of law for the Tribunal to determine that the insured is required to prove that the January 2023, March 2023, May 2023 and June 2023 treatment plans are reasonable and necessary. The insured submits that her submissions and evidence pointed to the non-compliance by the insurer in responding to the disputed treatment plans as the reason why they are payable. The insured further submits that the evidence of Dr. Chen, physiatrist, was not considered by the Tribunal in assessing the reasonableness and necessity of the subject treatment plans and OCF-6s.
40The insurer submits that no error of law has occurred with respect to entitlement to the disputed treatment plans. The insurer submits that the insured in her original submissions was so concerned with how the insurer “changed a reason for denying a benefit” that she failed to make out her own case and establish the requisite elements of the reasonable and necessary test to meet her burden of proof.
41Upon review of the Tribunal’s reasoning, I find that there was no analysis or decision made with respect to the insurer’s compliance with s. 38 of the Schedule. Section 38 was the insured’s main argument as to why she is entitled to payment of the treatment plans in dispute. Based on this omission of a key argument, I find that the insured has shown that the Tribunal made an error of law or fact such that it would likely have reached a different result had the error not been made.
42I further find that there is no mention of Dr. Chen’s evidence in the decision which the insured relied upon to support that the treatment plans in dispute were reasonable and necessary. While the Tribunal does not have to point to every piece of evidence raised in the party’s submissions, I find that the Tribunal stated at paragraph [78] that “there is no cogent treating recommendations post-June 2023 linking these plans to measurable outcomes”. I find that Dr. Chen’s reports, dated October 28 and 31, 2024, were dated post-June 2023, and the insured placed a significant focus on these reports in her submissions. I, therefore, find that they should have been considered by the Tribunal in the decision.
43For these reasons, I find that the insured has shown that the Tribunal made an error of law or fact such that it would likely have reached a different result had the error not been made.
Rule 18.4 – Cancelling the Decision and Rehearing Part of the Matter
44I must now determine what the appropriate remedy is under Rule 18.4. I find that there are no grounds for reconsideration of the Preliminary Issue in dispute. However, with respect to the substantive issues in dispute and the procedural issue of whether the insureds Reply should be admitted, I find it is appropriate to cancel those portions of the decision and send this part of the dispute to be reheard by a new adjudicator. A new hearing on the substantive and procedural issues is needed to ensure that all these issues are decided in a fair and open manner.
45However, to protect the interest of efficiency for both sides, I will order the new adjudicator to conduct the rehearing based on the evidence and submissions from the written hearing.
CONCLUSION & ORDER
46The insured’s request for reconsideration is granted in part.
47The insured’s request for reconsideration of the Preliminary Issue is denied.
48Pursuant to Rule 18.4, the decision, with respect to the substantive issues and the procedural issue of the admission of the insured’s Reply, is cancelled.
49The matter shall be reheard by a new adjudicator, based on the original written hearing submissions and evidence.
50I am not seized.
Melanie Malach
Adjudicator
Released: June 4, 2026