Court File and Parties

CITATION: Abboud v. Intact Insurance Co., 2025 ONSC 3416

DIVISIONAL COURT FILE NO.: 087/24 DATE: 20250619

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

D.L. Corbett, Lococo and Kurke JJ.

BETWEEN:

Fawzi Abboud

Frank E. McNally, for the Appellant

Appellant

• and -

Intact Insurance Company

Tessie Kalogeras and Colleen MacKeigan, for the Respondent

Respondent

HEARD at Toronto: October 21, 2024 by videoconference

REASONS FOR DECISION

D.L. Corbett J.

[1] The Appellant, Mr Abboud, appeals the decision of the License Appeal Tribunal (“LAT”) dated August 11, 2023 (2023 72642 (ON LAT)), and the Reconsideration Decision of the LAT dated December 29, 2023 (2023 123464 (ON LAT)), denying his claim to be catastrophically impaired and denying related benefits claims.

[2] The original LAT decision turned on an analysis of the expert evidence related to catastrophic impairment. The LAT determined that the Appellant’s expert evidence was conclusory and failed to include a path of reasoning that explained the expert’s opinion. The Respondent’s expert did provide an analysis that explained their opinion, and the LAT found the opinion persuasive and supported by the factual record. Therefore, the LAT concluded that the claim for catastrophic impairment had not been proven by the Appellant.

Analysis

(a) The Original LAT Decision

[3] The LAT correctly found that the Appellant bore the onus to establish catastrophic impairment (Decision, paras. 9, 20), and that the Appellant’s claim to be catastrophically impaired could be established under either Criterion 7 or Criterion 8, as reflected in the Appellant’s “OCF-19” submitted in support of his claim (Decision, paras. 6-8).

[4] In respect to the claim under Criterion 8, the LAT held (at Decision, paras. 10-11):

… Dr Ofokansi’s evidence on catastrophic impairment is restricted to only the OCF-19. There are no complementary reports or analyses prepared by Dr Ofokansi that would speak to what Dr Ofokansi relied on to conduct the determination. In fact, the rationale for Dr Ofokansi’s finding is just one sentence on the OCF-19 that reads “[the Appellant’s] accident caused post-traumatic stress disorder and major depressive disorder (persistent and severe), with extreme impairments in functioning across all domains.”

This evidence alone is insufficient to meet the [Appellant’s] burden of proof. Dr Ofokansi provides no medical evidence whatsoever to explain why the [Appellant’s] impairments are determined to preclude useful functioning (i.e., an extreme impairment). In fact, there is no description of the [Appellant’s] performance in any of the areas of functioning to explain an extreme rating. In short, there is only an unsubstantiated conclusion.

[5] In respect to the claim under Criterion 7, the LAT held (at Decision, para. 19):

Similarly, the applicant has failed to prove he is catastrophically impaired under Criterion 7. Although Dr. Ofokansi indicates that Criterion 7 is applicable to the applicant, the rationale for catastrophic impairment provided by Dr. Ofokansi is limited only to factors associated with Criterion 8. Put differently, there is no mention whatsoever of WPI—there are only references to two mental or behavioural disorders that relate to domains of functioning, which I interpret as relevant to Criterion 8 per the Schedule. As such, Dr. Ofokansi offers no medical evidence or basis for applying Criteria 7 to the applicant’s case, and did not provide a WPI rating. I can therefore only conclude the applicant has not met his burden to prove catastrophic impairment under Criterion 7.

[6] The balance of the Appellant’s claims were dismissed because of the dismissal of his claim to be catastrophically impaired (Decision, para.

(b) The LAT Reconsideration Decision

[7] The Appellant sought reconsideration of the Decision pursuant to Rule 18.2(a) and (b) of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, (October 2, 2017). These provisions state that the LAT may grant a request for reconsideration where:

a) the Tribunal acted outside its jurisdiction or violated the rules 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….

[8] The Appellant argued that Reconsideration should be granted under Rule 18.2(a) because the LAT’s reasons were inadequate, giving rise to a denial of procedural fairness,