RECONSIDERATION DECISION
Before:
Nathan Prince, Adjudicator
Licence Appeal Tribunal File Number:
24-003808/AABS
Case Name:
Leslie Hemming v. The Personal Insurance Company
Written Submissions by:
For the Applicant:
Lawson Hennick, Counsel
For the Respondent:
Andrew Franklin, Counsel
OVERVIEW
1On March 10, 2026, the applicant requested reconsideration of the Tribunal’s decision dated February 17, 2026 (“decision”).
2Stemming from an accident on February 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 written hearing. The issues in dispute included the applicant’s entitlement to twelve denied treatment plans, an award, and interest. The Tribunal found that the applicant was entitled to two of the twelve treatment plans, and interest thereon. The remaining treatment plans and the applicant’s claim for an award were denied.
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 Rules 18.2(a) and 18.2(b) to support her request. The applicant is asking the Tribunal to vary the decision to find that she is entitled to the following two plans:
Is the applicant entitled to $1,900.00 for chiropractic and physiotherapy services proposed by Do Axis Therapy and Performance (“Axis”) in a plan dated April 8, 2024?
Is the applicant entitled to $4,963.80 for massage, chiropractic and physiotherapy services proposed by Axis in a plan dated June 27, 2024?
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.
Rule 18.2(a) – Material Breach of Procedural Fairness
8I find that the applicant has not established grounds for reconsideration under Rule 18.2(a) as it relates to the treatment plans from Axis.
9The applicant submits that the Tribunal committed a material breach of procedural fairness by declining to consider the clinical notes and records (“CNRs”) from Axis. The applicant submits that procedural fairness requires that she have a meaningful opportunity to present her case and have the evidence in the record fairly considered.
10The respondent submits that there was no breach of procedural fairness because the applicant had the opportunity to present her case fully and fairly at all times. Rather, according to the respondent, the reason the Axis CNRs were not considered was due to non-compliance with the filing requirements outlined in the Case Conference Report and Order (“CCRO”).
11At the outset of the decision, the hearing adjudicator addressed the difficulty she had navigating the applicant’s submissions. At paragraphs 20 – 23, she notes:
In coming to my decision, I had considerable difficulty locating the medical evidence of the applicant. I note that at paragraphs 25 and 26 of the CCRO, the Tribunal orders that all submissions, evidence and authority briefs filed with the Tribunal must be bookmarked/tabbed and that submissions must make specific reference to the evidence and authorities by tab and page number. Further, at paragraph 26, there is an order that the hearing adjudicator has the discretion to determine whether to consider submissions that do not comply with the Tribunal’s filing requirements.
Since the onus of proof is on the applicant, it is of utmost importance that they clearly point to the evidence they want the Tribunal to consider. I find that this is the only way for the Tribunal to reach a reasoned and fair decision. It is not this Tribunal's role to search through the evidence and make the argument on behalf of the applicant: see Dooman v. TD Insurance Co., 2025 ONSC 184 (“Dooman”) at para. 50.
The applicant’s Document Brief contains sixty-eight tabs totalling four thousand and thirty-two pages. Although there is a Table of Contents listing the tabs, the tabs are not searchable by clicking on them, nor are they identified by page number. Further, I note that, of fifty-three items referred to in the applicant’s submissions, only thirteen of the items were referenced by page number in the Document Brief.
I have made best efforts to locate and consider all evidence referred to by the applicant. However, where the applicant has not directed me to the evidence, and I am unable to locate it, I have noted this below, and I have exercised my discretion not to consider that evidence in making my decision, in accordance with the CCRO and consistent with the Divisional Court’s decision in Dooman.
12In considering the applicant’s entitlement to the two treatment plans from Axis, the hearing adjudicator commented on the Axis CNRs at paragraph 90:
The applicant submits that she has incurred the proposed physiotherapy and chiropractic treatment and would not have done so had it not been helpful to her. She submits that she derives great benefit from it, pointing out that a review of the Axis CNRs notes numerous references to reduced pain and improvement, which is in line with the goals of the treatment plans. The applicant does not direct me to the dates or page numbers relating to the references to reduced pain and improvement that she submits are in the Axis CNRs (which total four hundred and twenty-four pages). As such, I am unable to pinpoint these references, nor whether they are contemporaneous with the disputed plans.
13I am not persuaded by the applicant’s submission that she did not have a meaningful opportunity to present her case and have the evidence in the record fairly considered. The applicant argues that the Axis CNRs were properly before the Tribunal, and the principle of fairness required the hearing adjudicator to consider this evidence. Respectfully, the applicant has not demonstrated that the Tribunal breached her right to procedural fairness, as it is clear that she did not present her case in a manner that allowed the Tribunal to discern what evidence she was relying upon.
14Section 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (“SPPA”) and Rule 14.1 of the of the Licence Appeal Tribunal Rules, 2023, grant the Tribunal the power to determine its own procedures and practices and issue procedural or administrative directions as necessary. Pursuant to this authority, a CCRO was issued to the parties indicating that submissions must make specific reference to the evidence and authorities by tab and page number. In addition, the CCRO provided notice to the parties that the hearing adjudicator may decline to consider non-compliant submissions.
15The applicant’s submissions acknowledge that pinpoint references to the Axis CNRs were not provided to the hearing adjudicator; however, she argues that they should have been considered in any event. In support of her position, she notes that the Axis CNRs were in chronological order, allowing the Tribunal to locate dates of interest. In addition, she submits that the Axis CNRs were searchable and wholly relevant to the issue in dispute.
16While the Axis CNRs may have been in chronological order and searchable, the entirety of the applicant’s hearing submissions regarding the connection between the Axis CNRs and the Axis treatment plans states that “a review of the records notes numerous references to reduced pain and improvement which is in line with the goals of her treatment plans”. The applicant’s hearing submissions do not include references to any particular dates of interest, nor do they identify any potential search terms that the hearing adjudicator might have utilized to review the Axis CNRs.
17In any event, the formatting of submissions does not obviate the need for parties to adhere to orders of the Tribunal. As noted in the CCRO, and confirmed in paragraph 20 of the decision, the parties’ submissions “must make specific reference to the evidence and authorities by tab and page number”. This language is not permissive in nature and mandates that parties provide pinpoint references. This requirement is equally applicable when submissions are chronological and searchable.
18The applicant further submits that, given the page limits set out in the CCRO, a balance needs to be struck between providing pinpoint references versus providing reference to a searchable and navigable portion of the materials. I am not persuaded by this argument. Parties are expected to provide concise submissions that comply with the page limits ordered in the CCRO. If a party believes that additional pages are required to fairly present their case, it is open to them to make that request at the case conference or file a motion seeking such relief. In this case, no such motion was filed.
19Lastly, the applicant submits that the hearing adjudicator misapplied the Divisional Court’s decision in Dooman. She argues that Dooman is distinguishable from this matter, because the applicant in Dooman was attempting to make new submissions on reconsideration which, she suggests, is not the case here. I disagree. Dooman represents binding authority. While the fact pattern in Dooman may differ from the matter before me, I see no basis to depart from the principle that it is inappropriate for adjudicators to go through a party’s evidence to make their case for them. I find that requiring the hearing adjudicator to sift through the Axis CNRs (which total four hundred and twenty-four pages) and select entries which support the applicant’s position is tantamount to making the applicant’s case for her and directly contradicts the binding authority outlined in Dooman. Furthermore, having the adjudicator select relevant entries contained in the Axis CNRs may give rise to procedural fairness issues, because the respondent would have to speculate which records would be relied upon. As a result, the respondent would be in a position where it was forced to put forward its defence without knowledge of the case to meet.
20Based on the foregoing, I find that the applicant has not established grounds for reconsideration under Rule 18.2(a) as it relates to the treatment plans from Axis.
Rule 18.2(b) – Error of Fact or Law
21I find that the applicant has not established grounds for reconsideration under Rule 18.2(b) as it relates to the treatment plans from Axis.
22The applicant submits that the Tribunal erred in coming to the conclusion that the benefits of Axis therapy were unclear. Again, the applicant points to the Axis CNRs and suggests that these records clearly indicate the benefits that she derived from Axis therapy. As discussed above, I find that the hearing adjudicator did not err in declining to consider the Axis CNRs because specific references to the evidence were not made.
23The applicant further submits that the Tribunal erred in failing to consider the fact that the applicant incurred the Axis treatment plans; however, this was explicitly addressed by the hearing adjudicator at paragraph 100 of the decision where she states: “Although the applicant has incurred the disputed plans, I find that the benefit she received from the rehabilitative services remains unclear.” This indicates that the hearing adjudicator turned her mind to the fact that the treatment plans were incurred. In my view, it is not the absence of consideration that the applicant takes issue with, instead it is the weight that the hearing adjudicator assigned. As previously noted, 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.
24The applicant also submits that the Tribunal made an error of law by relying upon the section 44 physiatry assessment authored by Dr. Rabinovich, because her opinion was contingent upon the review of an ultrasound report which was never received. Respectfully, I disagree. Dr. Rabinovich’s report notes that she “would appreciate the opportunity to review [the ultrasound] if made available in order to confirm [her] diagnosis and provide further recommendations if required”; however, this did not preclude her from making a diagnosis and opining that the Axis treatment plans were not reasonable and necessary. Dr. Rabinovich conducted an assessment of the applicant and undertook a thorough review of the available medical documentation and formed her opinion on that basis. If a review of the ultrasound was required to form her opinion, Dr. Rabinovich would have indicated that in her report. Regardless, I find the applicant’s submissions are best characterized as taking issue with the weight assigned to Dr. Rabinovich’s report. Again, reconsideration is not an opportunity to re-visit the weight assigned to the evidence.
25More significantly, even in the absence of Dr. Rabinovich’s report, the hearing adjudicator found the applicant’s evidence unpersuasive in establishing entitlement to the Axis treatment plans. The decision notes that the applicant relied on the reports of Dr. Getahun and Dr. Finlayson, as well as a letter from Dr. Sivapatham, all of whom recommended physiotherapy. The hearing adjudicator placed little weight on Dr. Getahun’s report, because he provided no basis for his recommendations, nor did he address why the Axis treatment plans were reasonable and necessary. She was also unpersuaded by Dr. Finlayson and Dr. Sivapatham because their opinions were not contemporaneous with the Axis treatment plans.
26The applicant submits that the hearing adjudicator’s reasons for assigning little weight to Dr. Getahun’s report constitute a significant error of fact, because expert opinions endorsing the need for a particular modality may be used to support the reasonableness of a particular treatment plan, despite not directly referencing it. Furthermore, she submits that Dr. Getahun’s report should have been given more weight than Dr. Rabinovich’s report, because Dr. Getahun reviewed the aforementioned ultrasound report and Dr. Rabinovich did not.
27While I appreciate that an expert endorsement may speak to a particular modality being warranted, it is not determinative of entitlement to a specific treatment plan. And while I acknowledge that Dr. Getahun’s report made general recommendations regarding certain modalities, it does not address whether the particular Axis treatment plans in dispute (which recommend 80 physical rehabilitation sessions over a 22-week period) are reasonable and necessary. Regardless, the applicant’s submissions ask me to reconsider the weight that the hearing adjudicator assigned to Dr. Getahun’s report which, as previously noted, is not a basis for reconsideration.
28Lastly, I note that the hearing adjudicator’s decision did not rest solely on whether the goals of the disputed treatment plans would be met to a reasonable degree, she also denied the plans on the basis that there was insufficient evidence to conclude that the costs of achieving these goals were reasonable. As such, I find that the applicant has not met her onus of demonstrating that the Axis treatment plans are reasonable and necessary.
29Based on the foregoing, I find that the applicant has not established grounds for reconsideration under Rule 18.2(b) as it relates to the treatment plans from Axis.
CONCLUSION & ORDER
30The applicant’s request for reconsideration is dismissed.
Nathan Prince
Adjudicator
Released: June 12, 2026