Reconsideration Decision
Before: E. Louise Logan, Vice-Chair
Licence Appeal Tribunal File Number: 24-009699/AABS
Case Name: Iyana Kerr-Knights v. Definity Insurance Company
Written Submissions by:
For the Applicant: Aline Avanessy, Counsel
For the Respondent: Angelo Sciacca, Counsel
OVERVIEW
1On September 2, 2025, the applicant requested reconsideration of the Tribunal’s decision released August 12, 2025 (“decision”).
2The applicant was in a motor vehicle accident on June 7, 2019. In the decision, the Tribunal determined that the applicant was catastrophically impaired (“CAT”) under Criterion 8. It also determined the applicant was not entitled to an income replacement benefit (“IRB”) from March 2, 2021 to September 1, 2024, but was entitled to an IRB from September 1, 2024 to date and ongoing, plus interest. The applicant was not entitled to a treatment plan for a CAT assessment.
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 respondent is seeking reconsideration pursuant to Rule 18.2(b), arguing the Tribunal made errors of law and fact such that the Tribunal would likely have reached a different result had the errors not been made. It seeks an order setting aside the decision.
5The applicant submits the request for reconsideration should be dismissed.
ADDITIONAL SUBMISSIONS
6The Divisional Court’s decision in Paesano v. Coseco Insurance Co., 2025 ONSC 3245 (Paesano) was released on June 2, 2025, shortly after the May 26-30, 2025 hearing, but before the decision was released on August 12, 2025 and before the reconsideration request was filed. Noting that Paesano may be of relevance to this proceeding and is binding on the Tribunal, I requested additional submissions on how the decision applied to the respondent’s reconsideration request. I made this request on November 14, 2025. The respondent and the applicant both provided additional written submissions, which I have considered in the course of reaching my conclusions as set out below.
RESULT
7The respondent’s request for reconsideration with respect to CAT is denied.
8The respondent’s request for reconsideration with respect to the IRB is granted.
9The Tribunal’s decision with respect to the IRB is cancelled. Entitlement to an IRB from March 2, 2021 to date and ongoing will be reheard by a new adjudicator in accordance with the Orders set out below.
ANALYSIS
10The 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.
11The respondent sets out two grounds for reconsideration pursuant to Rule 18.2(b):
The Tribunal did not meaningfully assess the credibility and reliability of the applicant’s evidence with respect to the Criterion 8 analysis and did not provide adequate reasons for its assessment.
The Tribunal did not apply the IRB entitlement test set out in section 6 of the Schedule, including relevant case law, with respect to whether the applicant sustained a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.
12I will address each of these grounds in turn.
Rule 18.2(b) - Criterion 8 assessment
13I find the respondent has not established grounds for reconsideration with respect to the Criterion 8 assessment.
14The respondent argues that the Tribunal’s reasons do not meaningfully disclose why the applicant’s evidence was preferred over the respondent’s evidence. It cites Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (Vavilov) and Kanareitsev v. TTC Insurance Co., 2008 CanLII 26262 (ON SCDC) in support of its position that the Tribunal’s reasons are not adequate.
15The respondent specifically refers to the Tribunal’s treatment of social media and surveillance evidence, submitting it was not assessed for the purpose which it was tendered: to impeach the applicant’s credibility. It submits this evidence was treated as a monolith and discounted in its entirety. It also cites the Tribunal’s reliance on the evidence of Dr. Shahmalak, psychiatrist, which it indicates was based on inaccurate or untrue reporting by the applicant. It provides examples of the same. It submits that the Tribunal’s preference for the applicant’s evidence because it corresponds with the preponderance of evidence about the applicant’s post-accident functioning was an error, because it does not.
16The respondent notes that its case was focused on the credibility and reliability of the applicant and her evidence. It also submits that the reliability of an expert’s opinion is dependent on the reliability, credibility and accuracy of the facts upon which the opinion is based.
17Further, it submits that the Tribunal’s finding that the validity concerns raised in the first set of CAT assessments were resolved in the second set was an error. It submits the reasons do not disclose how the Tribunal assessed the problems with the applicant’s evidence, and, by implication, the expert evidence. Relying on Cyanamid v. Bigelow, 1992 CanLII 8653 (ON CA), the respondent submits that where the reasons disclose a lack of appreciation of relevant evidence, and more particularly they complete disregard such evidence, this is a reviewable error.
18The applicant submits that the Tribunal provided clear reasons grounded in the evidence, applied the correct legal tests, and the respondent is improperly seeking to re-litigate issues that were already determined. She submits that the Tribunal reviewed the evidence, including expert evidence and social media and surveillance evidence. The Tribunal explained why it preferred Dr. Shahmalak’s opinion, and why it discounted the surveillance and social media evidence. The applicant also submits the Tribunal addressed inconsistencies in the evidence.
19The applicant relies on Gordan v. Certas Direct, 2025 CanLII 15990 (ON LAT) (Gordan) and Islamovic v. Co-operators General Insurance Company, 2023 CanLII 67922 (ON LAT) in support of her position that Dr. Shahmalak’s reports should be preferred over those of the respondent’s expert, Dr. Sivasubramanian, psychiatrist. She submits that the Tribunal’s decision was correct. She submits the Tribunal properly grounded its finding of catastrophic impairment in consistent psychiatric and occupational therapy evidence. She argues that the decision meets the adequacy standards under Vavilov.
20I find that the respondent has not established grounds for reconsideration with respect to the assessment of catastrophic impairment under Criterion 8.
21I find that the Tribunal provided adequate reasons for its finding on CAT. As noted by the respondent, adequacy of reasons in the context of administrative tribunals was addressed in Vavilov. For an administrative decision-maker’s analysis to meet the Vavilov standards, it must meaningfully grapple with the key issues and arguments raised by the parties and demonstrate that the decision-maker was alert and sensitive to the matter before them.
22In my view, the issues raised by the respondent in its reconsideration submissions were adequately addressed in the decision. At paragraphs 25 to 35, the Tribunal addressed the evidence and submissions in the context of the sphere of social functioning. In this analysis, the adjudicator notes that the respondent had cross-examined the applicant on her pre-accident termination from employment and post-accident activities. The adjudicator accepted the applicant’s testimony regarding the reasons for her pre-accident termination.
23The adjudicator also accepted the applicant’s submission that her activities were not inconsistent with Dr. Shahmalak’s opinion that she had a marked impairment in social functioning. The adjudicator provided reasons for accepting the applicant’s submissions on this point. In doing so, the adjudicator addressed the social media and surveillance evidence, the applicant’s testimony and the medical evidence. The adjudicator gave reasons, at paragraph 29, as to why she gave less weight to the applicant’s engagement in social activities during the initial, post-accident period as follows:
…I accept the applicant’s submission that her participation in these activities is not inconsistent with Dr. Shahmalak’s opinion that the applicant sustained a marked impairment in social functioning. First, I find that the social media photographs and videos were posed and often scripted and did not provide an accurate portrayal of the applicant’s functioning or condition so I give them little weight. Second, the applicant does not dispute that she engaged in these activities in an attempt to return to normal during the first three years post-accident. She claims only that she was unable to continue to function at this level when she suffered a significant deterioration of condition in about 2023. Third, the medical evidence shows that the applicant’s condition deteriorated in about 2023 or 2024, culminating in her hospitalization for psychiatric reasons. As a result, I give less weight to the evidence showing the applicant’s engagement in social activities during the initial post-accident period.
24I find that the adjudicator turned her mind to the social media and surveillance evidence and considered the applicant’s testimony and submissions in light of this evidence. In accepting the applicant’s submissions and affording less weight to the evidence of the applicant’s engagement in social activities, the adjudicator noted that the applicant did not dispute engaging in the activities of travelling, having a conversation about a podcast, maintaining a romantic relationship for up to two years after the accident, and living with her partner for a period of time. The adjudicator accepted the applicant’s explanation for why she was able to undertake these activities.
25In sum, the adjudicator did not find the social media and surveillance to be persuasive because, in the adjudicator’s view, it did not provide an accurate picture of the applicant’s functional abilities, and because the adjudicator accepted the applicant’s explanation for why she was able to undertake the activities depicted in the social media and surveillance evidence. In light of these findings, I find it was not necessary for the adjudicator to then go on to consider whether the social media and surveillance evidence would have impeached the applicant’s evidence.
26The respondent further submits that, while the applicant may have made “admissions” during the hearing, she was less than forthright about the true extent of her abilities to the section 25 and 44 assessors. In other words, the respondent asserts that she did not disclose the activities of travelling, having a conversation about a podcast, maintaining a romantic relationship for up to two years after the accident, and living with her partner for a period of time to the assessors, and she downplayed her cognitive and physical abilities during the assessments. The respondent submits that the adjudicator was wrong to rely on the conclusions of Dr. Shahmalak, when they were based on inaccurate or untrue reporting by the applicant.
27In my view, the challenge with the respondent’s submissions is that it is attempting to have the evidence reassessed and reweighed on reconsideration. The respondent had an opportunity to put its case to the hearing adjudicator. The hearing adjudicator considered the evidence and submissions and determined that she preferred Dr. Shahmalak’s opinion and evidence. At paragraphs 31 to 34, the adjudicator set out her reasons why. These reasons include, at paragraph 31, that Dr. Shahmalak’s opinion corresponded with the preponderance of evidence of the applicant’s post-accident functioning, with specific reference to the social media and photographs:
[31] Dr. Shahmalak opined that the applicant suffered a marked impairment in the sphere of social functioning at the time of his assessment in March 2023. Dr. Sivasubramanian opined that the applicant suffered a moderate impairment in this sphere at the time of his assessment in January 2025. I prefer the opinion of Dr. Shahmalak over that of Dr. Sivasubramanian because it corresponds with the preponderance of evidence regarding the applicant’s post-accident functioning. In particular, I find that Dr. Shahmalak’s opinion corresponds with both the evidence that shows the applicant trying to return to her pre-accident activities, such as the social media videos and photographs, but also the occupational therapy reports from both Mr. Madan and Ms. Kara and the applicant’s testimony about her eventual inability to maintain friendships and to function in a work setting.
28The adjudicator also provided reasons at paragraphs 32 to 34 for not putting weight on the opinion of the respondent’s expert, Dr. Sivasumbramanian, stating:
[32] Further, I find that in formulating his opinion, Dr. Sivasubramanian placed significant weight on the applicant’s functioning in the two to three years after the accident, when the applicant testified she was trying to engage in her normal activities despite her impairments. The applicant testified that during this period she anticipated and hoped that her condition would improve. However, ultimately she was unable to sustain any level of engagement with activities such as socializing with friends, attending school, and working. Dr. Shahmalak testified that he frequently sees patients push themselves to return to their normal activities during the initial period after an accident because they think their impairments are temporary. If they do not recover, however, they are eventually unable to sustain the effort and give up on engaging in the activities that they pushed themselves to engage in. The loss of hope that they will be able to return to these normal activities can further exacerbate the patient’s mental health struggles. Dr. Shahmalak testified that the applicant’s post-accident experience reflected this pattern, and that her level of functioning at the time of his assessment was not inconsistent with her earlier attempts to travel, socialize, return to school and return to work.
[33] Dr. Sivasubramanian also placed significant weight on the applicant’s report that she maintained a positive relationship with several family members at the time of his assessment. However, I give weight to Dr. Shahmalak’s opinion that, because the applicant was heavily dependent on her family members, the fact that she continued to maintain those relationships was a matter of self-preservation. The applicant testified that at the time of the hearing she lived with her mother and two of her siblings and she had no independent source of income. The applicant reported to Dr. Shahmalak that she feels guilt over her dependence on her family and her irritability towards them. I find, in these circumstances, that the applicant’s ability to maintain a relationship with her mother and siblings is less indicative of positive social functioning, and it is more indicative of the kind of self-preservation described by Dr. Shahmalak.
[34] Further, while Dr. Sivasubramanian quoted extensively from the occupational therapy report of Ms. Kara, his opinion appears to conflict with her observations of the applicant’s functioning at that time. Ms. Kara states in her report that, over the two days of testing, it was clear that socializing, maintaining relationships and even participating in the assessment were all major challenges to the applicant. Dr. Sivasubramanian dismissed Ms. Kara’s observations because they did not correspond with evidence of the applicant’s historic functioning.
29I find the reasons demonstrate that the adjudicator was alive to the key issues and arguments with respect to the applicant’s post-accident activities. The adjudicator was alert and sensitive to the potential inconsistencies in the evidence with respect to the post-accident activities and set out cogent reasons for why she accepted the applicant’s submission that they were not, in fact, inconsistent.
30Further, the adjudicator made findings of fact and grappled with the key evidence, reflecting consideration of the main factors relevant to the assessment of the applicant’s post-accident functioning. The adjudicator did not baldly state her conclusions. The adjudicator explained her finding that Dr. Shahmalak’s opinion was consistent with the preponderance of the evidence, with specific regard to the social media and photographs as set out above. The adjudicator accepted that the applicant had initially attempted to return to normal activities such as travel, socializing, return to school and work (as was reflected in the social media images and surveillance) but was not able to sustain this level of functioning and gradually became more isolated. In my view, this finding was open to the adjudicator on the evidence before her, was adequately explained, and does not give rise to an error that is grounds for reconsideration.
31Finally, while I acknowledge the respondent’s submission that the Tribunal erred at paragraph 92 when it stated that the validity concerns raised in the first set of CAT assessments were resolved in the second assessments, I do not agree. The statement was made in the context of assessing whether the applicant was entitled to payment for a second set of CAT assessments in 2022, following the first set conducted in 2021. The Tribunal determined she was not entitled, and in the course of making this finding, noted that:
[92] I find that the second CAT assessment itself, on its face, does not demonstrate that the deterioration in her psychological condition that the applicant submits existed at the time. The first CAT assessment provisionally assessed the applicant with a marked impairment in 3 out of 4 areas of function. The second CAT assessment assessed the applicant with a marked impairment in 3 out of 4 areas of function. The provisional assessment in the first CAT assessment was due to concerns that the psychological assessor had as a result of validity test results. These validity issues were resolved in the second CAT assessment.
32Read in the context of the decision, the reference to “validity issues” in paragraph 92 is in relation to rejecting the applicant’s submission that a second set of CAT assessments were reasonable and necessary. In context, I interpret this reference to validity issues being resolved to be to the fact that validity issues were raised in the first set of CAT assessments, but in the second set, Dr. Shahmalak noted there was no gross evidence of malingering on the part of the applicant, thus resolving the validity issues.
33In sum, I find that the respondent has not established grounds for reconsideration pursuant to Rule 18.2(b) with respect to the Tribunal’s determination that the applicant is catastrophically impaired pursuant to Criterion 8.
Rule 18.2(b) – Application of the Post-104 IRB Test
34I find that the respondent has established grounds for reconsideration, pursuant to Rule 18.2(b), as it relates to the IRB.
35The respondent argues that the applicant did not submit any expert evidence to support her position on the IRB entitlement test in section 6 of the Schedule. In this regard, it submits that the applicant was cleared to return to work by her treating plastic surgeon and family doctor, and she returned to her pre-accident employment. The respondent also notes that the adjudicator accepted the evidence that the applicant sustained a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience, even though the applicant did not submit any vocational evidence.
36The respondent also submits that the adjudicator made no reference to the test in section 6 of the Schedule, nor did she cite any case law interpreting this section. It argues that the adjudicator relied heavily on the fact that the applicant had a marked impairment in the domain of adaptation; the non-expert opinion of Dr. Paramsothy, her treating psychiatrist; and the fact that the applicant was fired post-accident, to support entitlement under section 6. The respondent submits that Dr. Shahmalak wrote in his report that “significantly does not mean totally”, and “impeded does not necessarily mean totally prevent”. It further argues that Dr. Shahmalak also wrote that “adaptation was distinct from employability”, and the distinction was recognized in the AMA Guides. As a result, the respondent submits it was an error for the Tribunal to have relied on the CAT findings for the section 6 IRB analysis.
37The respondent also submits that it was an error to uncritically accept the opinion of Dr. Paramsothy that the applicant was unable to work, as he was a treating doctor with limited interactions, and the applicant first became his patient in September 2024. It further submits that Dr. Paramsothy had no documents beyond the initial hospital attendance and a prescription summary, and that his information came from the subjective reports of the applicant and her mother.
38The respondent argues the adjudicator’s determination that the applicant met the section 6 “complete inability test”, as of September 1, 2024, is at odds with the finding that the applicant did not meet the section 5 “substantial inability test” for the pre-104 week period (which ended on June 7, 2021) and the adjudicator’s finding that the applicant did not meet the section 6 test from June 8, 2021 to August 31, 2024.
39The respondent argues that the adjudicator arbitrarily selected the September 1, 2024 date as the effective date for entitlement to the post-104 week IRB, as the applicant’s evidence on this point was “vague”. It submits that the applicant’s hospitalization was from September 26 to October 8, 2024. If the hospitalization was the reason for the applicant meeting the complete inability test, then her discharge would have ended entitlement. Further, the Tribunal did not conduct a causation analysis on the reasons for the hospitalization, as required by section 6, particularly in light of the Tribunal’s findings that the applicant’s alleged head injury and post-concussion symptoms were not accident-related. It submits that the hospital records disclose reasons for the hospitalization that were not related to the accident. The respondent submits that the Tribunal’s findings are a contradiction that cannot be reconciled on the current evidentiary record.
40The respondent cites the Court of Appeal decision in Traders v. Rumball, 2025 ONCA 656 (“Traders”), released on September 23, 2025. The respondent submits that, as in Traders, the applicant did not call any vocational evidence, and did not prove, on a balance of probabilities, that she met the test in section 6 of the Schedule. The applicant’s experts only assessed her in the context of Criterion 8 and did not take a detailed work history. The only expert evidence before the Tribunal was that of the respondent’s experts, who opined she did not meet the substantial inability test. The respondent submits that, based on Traders, there was insufficient evidence for a finding that the applicant met the post-104 week IRB test.
41The applicant submits that the Tribunal set out the IRB test in the decision, referencing sections 5 and 6 of the Schedule. The applicant also challenges the respondent’s claim that the Tribunal imported Criterion 8 findings into the IRB analysis, as it relied on the same functional evidence, including psychiatric hospitalization, failed work attempts and OT evidence of compensation. It submits this evidence is relevant to both CAT and IRB, and the Tribunal’s analysis was entirely proper.
42The applicant cites Dinglasan v. TD Insurance, 2024 CanLII 23465 (ON LAT) (“Dinglasan”) and Bercal v. Aviva, 2023 CanLII 58513 (ON LAT) (“Bercal”) in support of her position. She submits that, in Dinglasan, the Tribunal awarded IRBs based on psychological impairments, even though the assessment did not explicitly opine on IRB entitlement. Similarly, in Bercal, the Tribunal emphasized entitlement to IRBs is a legal question, and this applicant succeeded in establishing entitlement, even though expert reports did not comment explicitly on IRB eligibility. She submits that, in Bercal, the Tribunal rejected the argument that only direct medical opinions on IRB are determinative.
43The applicant submits that these decisions confirm that IRB entitlement is a legal determination based on functional impairments. The applicant further notes that a treating physician’s evidence is routinely given weight, especially when it is corroborated by hospital records and OT assessments. In this case, the applicant’s complete inability was supported by the record of hospitalizations in 2024 for significant psychiatric concerns, as well as occupational assessments. The applicant also cites K.K. v. Aviva, 2020 CanLII 87927 (ON LAT) in support of her position that insurers cannot rely on “stale IEs while ignoring subsequent psychiatric crises”.
44On reply, the respondent submits that the applicant’s reliance on Dinglasan and Bercal is misplaced as both these decisions are about pre-104 IRB entitlement. It submits the legal test and evidence required to meet the pre-104 IRB test are lower than the post-104 IRB test. For pre-104 IRB entitlement, no vocational evidence would be required, as the test involves a determination of the applicant’s pre-accident employment. Further, the respondent points to Gordan, where the applicant was determined not to be entitled to post-104 IRBs, although she was found to be CAT pursuant to Criterion 8. The respondent submits that, as in Gordan, the applicant in the present case did not tender opinion evidence on entitlement to IRBs, and Dr. Shahmalak expressly opined that adaptation was distinct from employability. Further, the respondent submits that the applicant did not tender evidence contradicting the respondent’s experts that she did not meet the substantial inability test.
45In its additional submissions in response to my request, the respondent submits that Paesano makes it clear that section 6(2)(b) of the Schedule is a more stringent test for ongoing IRB entitlement. It submits that, in Thorne v. Sonnet, 2025 CanLII 89890 (ON LAT), the Tribunal confirmed that an applicant must apply and establish a substantial inability within the first 104-week period to qualify for a post-104 week IRB. The decision in Thorne found that, to qualify for a post-104 week IRB, the applicant must have a complete inability as of the two-year mark. It submits this is consistent with section 6(2)(b) which states that an insurer is not required to pay an IRB “after the first 104 weeks of disability”.
46The applicant submits that the respondent is misstating the law and factual findings. The applicant applied for IRBs within the 104-week period, and so there is no procedural deficiency. She also submits that the respondent never conducted a post-104 week medical assessment, and it has no evidence to justify its ongoing denial, which was considered by the adjudicator. She submits that the adjudicator determined that, as of September 1, 2024, she met the complete inability test, and the Schedule does not penalize genuine attempts to return to work.
47I find that the respondent has established grounds for reconsideration with respect to the IRB, pursuant to Rule 18.2(b). Specifically, I find that in light of Paesano, the Tribunal erred in finding that the applicant was entitled to a post-104 week IRB as of September 1, 2024, without considering the impact of the findings that the applicant was not entitled to a pre-104 week IRB from March 2 to June 7, 2021, or to a post-104 week IRB for the more than three-year period from June 7, 2021 to August 31, 2024.
48In Paesano, the Court determined that entitlement to a post-104 week IRB requires that the insured both apply for and establish that they meet the required disability test, within the 104-week window following the accident. In finding that the applicant could quality and apply for post-104 week benefits because she had not yet received benefits, the Court stated as follows, at paragraph 41:
I find that the LAT's decision was correct, in finding that SABS is clear that an insured must apply for benefits and establish that she suffered a substantial inability within the first 104-week period to qualify for post-104 weeks IRBs. Section 6(2)(b) simply sets out the more stringent test for an insured's ongoing entitlement to the benefit. This issue of statutory interpretation was a question of law that should have been raised on appeal, but I find that even if the Applicant had followed the correct procedure, the result would have been the same: the LAT’s decision was correct.
49I acknowledge the applicant’s argument that she applied for pre-104 week IRB, and I agree that she established entitlement during the pre-104 period prior to her application to the Tribunal. However, as the Divisional Court stated in Paesano, section 6(2)(b) sets out the more stringent test for an insured’s ongoing entitlement to the benefit.
50In this case, the adjudicator determined that the applicant was not entitled to IRB for the pre-104 week period between March 2, 2021 and June 7, 2021, because, while the applicant had initially received an IRB after the accident, she had returned to work on a modified basis in August 2020 and did not file a new Disability Certificate (OCF-3) until November 30, 2021 (which was after the end of the pre-104 week period).
51In determining that the applicant was not entitled to an IRB between March 2 and June 7, 2021, the Tribunal also found as follows:
[70] While the applicant testified that she worked reduced hours and was eventually unable to continue working because of her accident-related impairments, her testimony is not supported by her employment file, pay stubs or Employment Insurance file, all of which indicate that she worked her typical part-time hours between August 2019 and February 2020. Her application for Employment Insurance also indicates that she stopped working in March 2020 due to a work shortage. The timing of her application for employment insurance coincides with widespread business closures due to COVID-19
[71] In addition, the applicant’s testimony relating to her inability to work during the pre-104 week period focused on her post-concussion symptoms, such as a sensitivity to light and noise. I find that the applicant has not proven, on a balance of probabilities, that her post-concussion symptoms, including sensitivity to light and noise, were caused by the accident because the hospital and ambulance records indicate that she did not hit her head in the accident. Further, the applicant testified about a pre-accident concussion, and there are records that demonstrate that the applicant sought and received accommodations from her university due to an acquired brain injury prior to the accident. In addition, the records of Dr. Mikhail show that the applicant was complaining of headaches, which she attributed to her prior concussion, in the year before the accident.
[72] Dr. Syed opined that the applicant was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood and assessed her has [sic] not having difficulties at a level that would preclude her from performing the essential tasks of her pre-accident employment. I find that Dr. Syed’s testimony was compelling and that she examined the applicant during the relevant period, just prior to the beginning of the period of entitlement claimed by the applicant. I accept Dr. Syed’s opinion that the applicant’s psychological injuries did not preclude her from performing the essential tasks of her pre-accident employment.
[73] Dr. Zabieliauskas opined that in the accident the applicant sustained strain injuries and contusions that involved the right neck, right upper extremity and right knee, in addition to a right fifth finger fracture. He assessed her as having no objectively quantifiable physical impairment or functional limitations that would prevent her from resuming her previous employment duties as a lifeguard and swimming instructor. I find that Dr. Zabieliauskas’ opinion was compelling and confirmed by the medical records that the strains, contusions and fracture sustained by the applicant in the accident had healed by this time.
52Having found the applicant was not entitled to a pre-104 week IRB from March 2 to June 7, 2021, the adjudicator then determined that the applicant was also not entitled to a post-104 week IRB from June 8, 2021 to August 31, 2024. At paragraph 84, the adjudicator noted that the applicant was vague with respect to the timing of the deterioration of her condition, and that it had not been directed to evidence of a deterioration on June 8, 2021. Rather, the Tribunal determined that the evidence demonstrated that the applicant’s psychological impairments had deteriorated significantly by the time of her hospitalization in September 2024.
53The adjudicator then found the applicant was entitled to a post-104 week IRB from September 1, 2024 to date and ongoing. In other words, the adjudicator found that the applicant had a period of entitlement to a post-104 week IRB that began more than five years after the accident and three years after the end of the pre-104 week period.
54Despite the extensive reasons provided for the evidentiary findings on IRB entitlement, the reasons do not address the significant gap in IRB entitlement between March 2, 2021 and September 1, 2024, or how this impacts the interpretation of section 6 and IRB entitlement as of September 1, 2024. As a result, in my view, the reasons with respect to entitlement to IRB do not meaningfully grapple with the issue of how the determination that the applicant met the complete inability test as of September 1, 2024 is consistent with the other IRB findings. Specifically, the reasons do not consider how entitlement as of September 1, 2024 is consistent with the finding that the applicant did not meet the substantial inability test for the pre-104 week period which ended June 7, 2021, and the finding that the applicant did not meet the complete inability test from June 8, 2021 to August 31, 2024. While I acknowledge that the applicant has been found to be catastrophically impaired, it does not necessarily follow that there is IRB entitlement without specifically grounding the analysis in the test in section 6 of the Schedule, taking into account relevant and binding case law.
55I acknowledge that the Divisional Court’s guidance in Paesano on the statutory interpretation of section 6(2)(b) was issued shortly after the hearing in this matter, but it is nonetheless binding on the Tribunal. In light of the Court’s guidance, once it was determined that the applicant was not entitled to a pre-104 week IRB from March 2, 2021 to June 7, 2021, or to a post-104 week IRB for the three-year period leading up to August 31, 2024, the adjudicator should have considered the impact of these findings on the applicant’s entitlement to a post-104 week IRB as of September 1, 2024. Accordingly, I find that the Tribunal erred in granting entitlement to the IRB as of September 1, 2024, without considering the impact of these other IRB findings.
56Further, I find that the error is such that it would likely have resulted in a different outcome had it not been made. This is because had the Tribunal considered the impact of its other IRB findings on entitlement as of September 1, 2024, it would likely have affected the outcome of the decision.
57Therefore, I find that grounds for reconsideration have been established, pursuant to Rule 18.2(b), with respect to the IRB.
58As I have found grounds for reconsideration have been established, I do not need to consider the respondent’s remaining arguments. I will now turn to consideration of the outcome of the reconsideration with respect to IRBs, pursuant to Rule 18.4.
Rule 18.4 – Outcome of the Reconsideration
59The respondent seeks an order setting aside the Tribunal’s findings that the applicant is entitled to an IRB from September 1, 2024 to date and ongoing, plus interest, or in the alternative, an order for a new hearing. The parties did not make submissions on the format of a new hearing.
60Pursuant to Rule 18.4, the Tribunal’s decision with respect to the IRB is cancelled. Given the nature of the relationship between entitlement to pre-104 week and post-104 week IRB, I am ordering a rehearing on the question of entitlement to IRB from March 2, 2021 to date and ongoing, which was the IRB issue in dispute at the initial hearing.
61Given that a videoconference hearing has taken place in this appeal, for which there is a recording and/or a transcript, and no procedural fairness arguments have been raised by the parties in this reconsideration process, I find that a rehearing based on the existing record is a procedurally fair and efficient approach to the rehearing of the applicant’s IRB entitlement.
CONCLUSION & ORDER
62The respondent’s request for reconsideration with respect to CAT is denied.
63The respondent’s request for reconsideration with respect to the IRB is granted.
64Pursuant to Rule 18.4, the Tribunal’s decision with respect to the IRB is cancelled. The issue of entitlement to IRB from March 2, 2021 to date and ongoing, and related interest, will be reheard.
65The rehearing will be conducted by a new adjudicator reviewing the existing record, i.e., the recording and/or transcript of the hearing, as well as the exhibits from the initial hearing.
66The party who brought the court reporter to the initial hearing shall provide the other party and the Tribunal with a copy of the recording and/or transcript of the hearing within 30 days of the release of this reconsideration decision.
67I am not seized.
E. Louise Logan Vice-Chair
Released: January 29, 2026