CITATION: Nuroh v TD General Insurance Co., 2025 ONSC 6997

DIVISIONAL COURT FILE NO.: 784/24 and 785/24

DATE: 20251217

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, Lococo and Kaufman JJ.

BETWEEN:

YAA NUROH

Applicant

– and –

TD GENERAL INSURANCE COMPANY and THE LICENCE APPEAL TRIBUNAL

Respondents

Doug Wright, Melissa Gizzo and Ben Fotia for the Applicant

Argita Shehaj and Jennifer Kiss, for TD General Insurance Company

Douglas Lee for the Licence Appeal Tribunal

HEARD at Toronto: on December 8, 2025

Backhouse J.

Overview

[1] The issue on this appeal is whether the appellant/applicant, Ms. Nuroh, was accorded procedural fairness during a hearing before the Licence Appeal Tribunal (the "LAT” or the “Tribunal”).

[2] Ms. Nuroh was involved in a motor vehicle accident in 2021. She applied for accident benefits from her insurer, TD General Insurance Company (“TD”), claiming she had suffered a catastrophic impairment. After TD denied the catastrophic impairment claim, Ms. Nuroh applied to the Tribunal for a determination that she was catastrophically impaired and sought related accident benefits.

[3] A hearing proceeded over several days. Ms. Nuroh’s expert psychiatrist on catastrophic impairment testified and was cross-examined on her report in which she found Ms. Nuroh to be catastrophically impaired. TD’s expert psychiatrist, Dr. Hasan, prepared three reports in which he found Ms. Nuroh not to be catastrophically impaired. His reports were admitted into evidence at the hearing, but the Tribunal declined the requests of TD and Ms. Nuroh to issue a summons so that he could be cross-examined. In an Amended Decision released December 4, 2024, and a Reconsideration Decision released May 23 2025, Adjudicator Amar Mohammed (the “Adjudicator”) found Ms. Nuroh was not catastrophically impaired, relying largely on the reports of Dr. Hasan.

[4] Ms. Nuroh submits the hearing was procedurally unfair. Her central submission is that the Tribunal breached procedural fairness by unfairly relying on Dr. Hasan’s reports on the critical issue of catastrophic impairment without facilitating his cross-examination and by failing to issue a summons for his attendance at the hearing. In addition, Ms. Nuroh submits that the Tribunal breached procedural fairness in failing to grant Ms. Nuroh’s request to issue a summons to TD’s adjuster, Marina Leahy, so that she could be examined on the issue of a special award. The Tribunal based its refusal to issue the summonses on the LAT’s Rules not having been complied with.

[5] Neither Ms. Nuroh nor TD had the authority to compel a witness to attend the hearing. The Tribunal was the only one with the authority and discretion to issue a summons. It was incumbent on the Tribunal to use its discretion to facilitate the cross-examination of a key witness whose expert reports on the critical issue in the application were being admitted into evidence. The LAT as a quasi-judicial tribunal is required to adhere to principles of natural justice and procedural fairness. Courts will accord deference to a tribunal’s procedural choices given the tribunal’s authority to control its own process, so long as the requirements of procedural fairness are met. No deference is accorded to a decision that fails to accord with the principles of natural justice and procedural fairness.

[6] I agree with Ms. Nuroh that the hearing violated her right to procedural fairness. These reasons explain why Ms. Nuroh was not afforded a fair hearing and why this matter must be remitted to the LAT for a new hearing.

[7] The error in refusing to issue a summons to TD’s psychiatric expert so that the cross-examination could take place on his medical reports is dispositive of the appeal. We therefore do not need to consider Ms. Nuroh’s other arguments that the adjudicator failed to provide adequate reasons for his decision and that the Adjudicator’s refusal to issue a summons for Ms. Leahy was a breach of procedural fairness.

Background

[8] Ms. Nuroh appeals and applies for judicial review of the LAT Decision, reported at 2024 115414 (ON LAT), amended Decision released on December 4, 2024, and the Reconsideration Decision, reported at 2025 49203 (ON LAT), released on May 23, 2025 (collectively the “Decisions”).

[9] Ms. Nuroh was injured on February 2, 2021 in a motor vehicle accident. She applied to the LAT to dispute TD’s denial of her catastrophic impairment claim, her entitlement to income replacement benefits and her entitlement to various treatment plans, under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule” or the “SABS).

[10] The principal issue that the Adjudicator was required to decide was whether Ms. Nuroh had sustained a catastrophic impairment under Criterion 8 pursuant to s. 3.1(1)8 of the SABS, being an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (1993) results in a Class 4 impairment (marked impairment) in three or more areas of function or at least one Class 5 impairment (extreme impairment) due to a mental or behavioural disorder.

[11] In denying that Ms. Nuroh had a catastrophic impairment, TD relied on a multi-disciplinary catastrophic insurer’s examination, which included a January 26, 2024 assessment report, a March 20, 2024 catastrophic file review and a July 3, 2024 addendum report all by Dr. Sadiq Hasan, a psychiatrist.

[12] On February 23, 2024, the parties attended a case conference before Adjudicator Nick Iannazzo who set the matter down for an eight-day video hearing from October 7 to 11 and October 15 to 17, 2024. The Case Conference Report and Order (“CCRO”) dated March 6, 2024 allowed Ms. Nuroh to call up to ten witnesses. TD was allowed to call up to six witnesses, two of whom were unnamed but were described as “Expert re CAT (to be determined) and Expert re Criterion #8 (to be determined).

[13] The CCRO required the parties to exchange an updated list of proposed witnesses they intended to call at least 45 days before the hearing pursuant to r. 9.4.2 (b) of the LAT Rules, making August 23, 2024 the deadline. By email on August 23, TD’s counsel advised Ms. Nuroh’s counsel that they intended to call six witnesses at the hearing, including TD’s psychiatric assessor expert, Dr. Hasan. Ms. Nuroh’s counsel delivered an updated list naming ten witnesses. On the same day, TD requested the Tribunal to issue a summons for Dr. Hasan, among others. TD’s request for a summons for Dr. Hasan was refused by Vice Chair Todd for reasons dated September 3and released on September 4, 2024 (the “Motion Order”). Notwithstanding that the timeline for requests to summons witnesses was met, the request was refused on the basis that Dr. Hasan was not identified by name in the CCRO.

[14] Following receipt of the Motion Order refusing the summons for Dr. Hasan, TD advised Ms. Nuroh’s counsel and the Tribunal by email on September 9, 2024 that they would be calling three witnesses. This updated witness list did not include Dr. Hasan. However, TD was aware that Ms. Nuroh’s counsel wanted to cross-examine Dr. Hassan and it made efforts thereafter to arrange for him to be available at the hearing for cross-examination without a summons.

[15] Ms. Nuroh’s counsel submits that notwithstanding TD’s updated witness list, they relied on discussions with TD about Dr. Hasan being made available at the hearing and that by the time they learned that this was not going to happen, the ten-day period for serving a summons under the LAT Rules had expired. An email that TD sent Ms. Nuroh’s counsel on October 2, 2024 advised that TD had not been able to get Dr. Hasan’s agreement to participate in the hearing as he was fully booked and travelling abroad. Ms. Nuroh’s counsel filed a motion two days later on October 4, 2024 returnable at the outset of the hearing on October 7, 2024 for a summons to be issued to Dr. Hasan and also to TD’s adjuster, Marina Leahy.

[16] Ms. Nuroh sought a special award pursuant to s. 10 of Automobile Insurance, R.R.O. 1990, Reg. 664 made pursuant to the Insurance Act. That section gives the LAT discretion to make an award in addition to the benefits and interest to which an insured is entitled to where the LAT finds that an insurer has “unreasonably withheld or delayed payments.” According to Ms. Nuroh, TD had unreasonably delayed making payments to her for income replacement benefits.

[17] To prove the claim for special damages, Ms. Nuroh made a timely request for a summons from the Tribunal for TD’s adjuster, Marina Leahy on September 23, 2024. When no response was received from the LAT, the office of Ms. Nuroh’s counsel followed up on October 1, 2024 and was advised that the request was incomplete (hearing format not selected). The LAT asked that a completed form be resubmitted which it was that same day. This request was denied on the basis that r. 8 of the LAT Rules requires a party to serve an approved summons on a summonsed person no later than ten days before the hearing.

[18] The Adjudicator denied both of Ms. Nuroh’s summons requests for Dr. Hasan and Ms. Leahy requested at the commencement of the hearing on the basis that they did not comply with r. 8.2.

[19] Ms. Nuroh sought reconsideration of, among other things, the procedural unfairness caused by the refusal of her request for a summons for Dr. Hasan and Marina Leahy. The Adjudicator held on Reconsideration that Ms. Nuroh should have moved earlier to secure Dr. Hasan’s attendance at the hearing and as there was no reasonable expectation that Dr. Hasan would be available for cross-examination at the hearing, TD was entitled to file his reports. In turn, the Adjudicator largely relied upon the reports to find that Ms. Nuroh was not catastrophically impaired.

[20] With respect to Ms. Leahy, in addition to refusing the request to summons her due to the non-compliance with r. 8.2 and because this was a second request, the Adjudicator found that Ms. Nuroh had the adjuster’s log notes and he was not satisfied that oral evidence would add evidentiary value.

[21] The LAT Rules dealing with issuing a summons, filing a request for a summons and failure to comply with the rules provide:

3.1 LIBERAL INTERPRETATION

These Rules will be liberally interpreted to:

a. Facilitate a fair, open and accessible process and to allow effective participation by all parties, whether they are self-represented or have a representative;

b. Ensure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal; and

c. Ensure consistency with governing legislation and regulations.

3.2 TRIBUNAL POWERS

The Tribunal may vary or waive the application of any Rule or procedure, on its own initiative or at the request of a party, except where to do so is prohibited by legislation.

The Tribunal may make such orders or give such directions in proceedings before it to control its process or to prevent abuse of its process.

The Tribunal may issue Practice Directions or similar types of documents to provide further information about the Tribunal's practices or procedures.

8. SUMMONS

8.1 ISSUING A SUMMONS

The Tribunal may issue a summons, on its own initiative or at the request of a party, requiring any person as defined in the SPPA, or a party:

a. to give evidence at an electronic or in-person hearing; and/or

b. to produce documents and things specified by the Tribunal at an electronic or in-person hearing.

The Tribunal will only issue a summons for witnesses, documents or things that are relevant to the issues in dispute and admissible at a hearing.

8.2 FILING OF A REQUEST FOR SUMMONS

A request for summons must be filed with the Tribunal using the form provided on the Tribunal's website. The requesting party must demonstrate the relevance of the request to the issues in dispute.

Unless otherwise ordered by the Tribunal, the approved summons must be served on the person summoned no later than 10 days before the hearing. The requesting party must file their request in a timely manner so that the Tribunal can adjudicate and issue the summons in advance of the deadline for service.

The requesting party must serve a copy of the approved summons on the other parties when it is served on the person summoned.

9.3 FAILURE TO COMPLY WITH THE RULES

If a party fails to comply with any Rule, direction or order with respect to disclosure, exchange, production, or inspection of documents or things, that party may not rely on the document or thing as evidence without the permission of the Tribunal.

If a party fails to comply with any Rule, direction or order with respect to the exchange or production of witness lists, the party may not call a witness who is not included on a witness list filed in compliance with the Rules, direction or order to give evidence without the permission of the Tribunal.

Parties will have an opportunity to make submissions before the Tribunal determines:

a. if the documents or things can be used at the hearing;

b. if the witness(es) may testify at the hearing; and/or

c. whether any other order is required.

When making its determination, the Tribunal may consider any relevant factor, including:

a. the reasons for non-compliance;

b. whether a party will be prejudiced by the admission or exclusion of the evidence and the extent to which that prejudice can be mitigated by any other order;

c. the extent to which the substance of the information or testimony lies within the knowledge of the other party;

d. whether the other party opposes the admission of the evidence or testimony; and

e. the relevance of the document, thing, or testimony to an issue in dispute in the proceeding.

9.4.2 DEADLINE FOR DOCUMENT EXCHANGE (AABS)

If an earlier exchange date has not been ordered by the Tribunal, then by no later than

45 calendar days before the hearing, the parties must exchange:

a. all documents and things the parties intend to rely on as evidence at the hearing; and

b. for electronic and in-person hearings, a list of witnesses each party intends to call

to give evidence at the hearing, with a summary of the evidence each witness will

give at the hearing.

Court’s Jurisdiction

[22] This court has jurisdiction over this appeal from s. 11 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G. Under s. 11(6), an appeal may be made on a question of law only. There is no appeal with respect to questions of fact or questions of mixed fact and law except where there is an extricable question of law: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras 26-37.

[23] Ms. Nuroh also brings a concurrent application for judicial review. Following the Supreme Court’s decision in Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, 489 D.L.R. (4th) 191, the Divisional Court retains the discretion to hear a concurrent application for judicial review regarding any issues that are not subject to a statutory appeal mechanism: Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 2, 6(1). The existence of a right of appeal limited to questions of law does not in itself amount to a discretionary bar nor preclude a judicial review application for questions of fact or mixed fact and law: Yatar, at para. 57.

Standard of Review

[24] On the appeal, the standard of review is correctness for questions of law: Housen, at para. 8; Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37.

[25] Whether there has been a breach of procedural fairness is a question of law on appeal, subject to correctness review: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, at paras. 26-30. The degree of procedural fairness required is determined by reference to all the circumstances of the case, including (i) the nature of the decision being made, and the process followed in making it, (ii) the nature of the statutory scheme, (iii) the importance of the decision to the individual or individuals affected, (iv) the legitimate expectations of the person challenging the decision, and (v) the choices of procedure made by the administrative decision maker itself: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 21-28; see also Vavilov, at para. 77.

[26] There is a presumption that the standard of review for judicial review of questions of fact and questions of mixed fact and law not subject to the statutory right of appeal is reasonableness: Vavilov, at paras. 23-25; Yatar, at para. 42. That presumption is not rebutted in this case.

Analysis

Failure to Issue a Summons for Dr. Hasan and Marina Leahy

[27] It is well-established that tribunals have the authority to control their own process and that courts accord deference to a tribunal’ procedural choices, so long as the requirements for procedural fairness are met Council of Canadians with Disabilities v. Via Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650, at para. 231. Due to their experience and expertise, tribunals are best placed to select among available procedural options based on their balancing of the competing interests of expeditiousness, cost-effectiveness and full participation: Baker, at para.27.

[28] The court should not be dictating what it considers to be the optimal procedure among the options that satisfy the duty of fairness. However, where in all the circumstances the requirements of natural justice and procedural fairness have not been met, this court will intervene.

[29] As noted above, in Baker, at paras. 23-27, the Supreme Court set out factors to determine the level of procedural fairness owed in the circumstances of a particular case. In this case, those factors point to a high level of procedural fairness. This is most clearly evidenced by the nature of the hearing itself, which proceeded as a full, contested, oral (virtual) hearing, with witnesses, including experts, examinations, and, apart from Dr. Hasan, cross-examinations. The issues in the case were of substantial financial importance to Ms. Nuroh.

[30] It is obvious that Dr. Hasan was an essential witness and the problems began when TD’s initial timely request for a summons to be issued for him was refused by Motion Order released on September 4, 2024 on the technical basis that Dr. Hasan was not identified by name in the CCRO witness list for TD. That is notwithstanding that TD’s witness list at the CCRO reserved a slot to call an expert on catastrophic impairment and its updated list delivered August 23, 2024 pursuant to r. 9.4.2 (b) of the LAT Rules named Dr. Hasan as a witness. It was Ms. Nuroh as the applicant, who had the burden of proving catastrophic impairment. She was one who was disadvantaged by the LAT’s refusal of TD’s request (and later, Ms. Nuroh’s request) to issue a summons for Dr. Hasan to enable cross-examination.

[31] The Adjudicator in his Reconsideration Decision found Ms. Nuroh could have moved to amend the CCRO to add Dr. Hasan as a witness and applied for a summons. It is not clear why Ms. Nuroh would be expected to do this. Ms. Nuroh had already designated her ten witnesses. TD had reserved a slot on its witness list at the CCAO for an expert on catastrophic impairment and delivered an updated witness list naming Dr. Hasan to fill it.

[32] TD was aware that Ms. Nuroh’s counsel wanted to cross-examine Dr. Hasan. After the summons for Dr. Hasan was refused, TD made efforts to have Dr. Hasan available at the hearing for cross-examination. By the time TD advised Ms. Nuroh’s counsel that its efforts to arrange for Dr. Hasan to participate in the hearing were unsuccessful, the ten-day period for service of a summons under r. 8.2 had elapsed. Given that Dr. Hasan was TD’s expert, it was not unreasonable for Ms. Nuroh’s counsel to rely on TD’s making efforts to arrange for Dr. Hasan to be cross-examined without a summons. Dr. Hasan knew that his presence was requested for the hearing and he had had more than ten days notice of that.

[33] Under r. 8.2 of the LAT Rules, the LAT has discretion to allow a witness to be called where the requirements of the rule have not been met. It is clear from the transcript of the submissions made on the motion for a summons for Dr. Hasan and Ms. Leahy at the opening of the hearing that the Adjudicator was asked to exercise his discretion to grant the summons. The Adjudicator was asked to issue the summons on the basis that Ms. Nuroh’s counsel would endeavor to serve Dr. Hasan and would reserve his submissions on whether Dr. Hasan’s report should be excluded in the event he was unsuccessful in serving him.

[34] The Adjudicator relies in the Reconsideration Decision as a basis for refusing the summons on the fact that by the time of the October 7, 2024 motion, TD had dropped Dr. Hasan from its witness list (after its request to summons him was rejected) and also that Dr. Hasan did not appear on Ms. Nuroh’s witness list. However, in exercising his discretion as to whether to issue the summons, notwithstanding there had not been compliance with the LAT Rules, the Adjudicator should have considered the prejudice to Ms. Nuroh in not being able to cross-examine Dr. Hasan, a pivotal witness. The Adjudicator should also have considered that issuing the requested summons could have mitigated or cured the prejudice and provided a fair hearing.

[35] While the LAT may have its own procedural rules that allow for the most expeditious and cost-effective hearing of a dispute, those rules do not allow for an unfair process by which an expert’s opinion on a critical issue can become unchallenged evidence.

[36] The LAT Rules are to be liberally interpreted (r. 3.1) and the LAT has the power to vary or waive the application of any rule or procedure on its own initiative or at the request of a party except where to do so is prohibited by legislation (r. 3.2). The LAT Rules should not be applied so strictly that they effectively preclude a party from having a fair hearing.

[37] The Adjudicator found that the author of a report is not automatically considered a witness available for cross-examination at a hearing. Clearly there are reports which are non-contentious or self-evident that can be admitted into evidence without cross-examination. However, in this case, TD’s expert, the psychiatrist, Dr. Hasan, was a central witness on the most important contested issue of catastrophic impairment and Criterion 8. Dr. Hasan’s testimony was highly relevant. Clearly Ms. Nuroh would be prejudiced by not being able to cross-examine the author of three expert reports which found her not to be catastrophically impaired and which critiqued her own expert’s report. Dr. Hasan would not be taken by surprise because he was clearly aware that his presence was sought for the hearing and as noted, had had more than ten days notice of that. Moreover, the motion was made on October 7, 2024. The hearing had been scheduled to continue until October 17, 2024 which would appear to have been plenty of time to serve Dr. Hasan and arrange for his cross-examination at a virtual hearing. None of these factors (which are cited as relevant factors under the LAT Rules) were considered by the Adjudicator in his decision to refuse the summons on the basis of the strict requirement of ten days’ notice in r. 8.2.

[38] The Adjudicator in the Reconsideration Decision distinguished the authorities Ms. Nuroh relied on in support of it being a breach of procedural fairness to admit a report into evidence that had not been tested by cross-examination (Shahin v Intact Insurance Co. 2024 ONSC 22059; Vivekanantham v Certas Direct Insurance Co., 2024 ONSC 6198 and Plante v Economical Insurance Co., 2024 ONSC 7171). The Adjudicator drew a distinction between a witness giving evidence in chief or being summonsed and then failing to attend for cross-examination, compared to Dr. Hasan who had not given evidence in chief or been summonsed. Whether Dr. Hasan’s reports were admitted into evidence with or without his testifying in chief, the trial unfairness arises from the Tribunal’s overreliance on technical rules and from a failure to focus on the requirements for a fair hearing by using its discretion to facilitate the cross-examination of a key witness whose expert reports on the critical issue in the application were being admitted into evidence.

[39] In the result, the summons of Dr. Hasan was refused and his reports were filed without cross-examination. The Adjudicator appears to have based his conclusion largely on Dr. Hasan’s reports in finding that Ms. Nuroh’s impairments did not rise to the level of catastrophic impairment. I find that Ms. Nuroh was denied procedural fairness when the Adjudicator refused her request to issue a summons for Dr. Hasan.

[40] While Ms. Leahy was a less important witness than Dr. Hasan, the basis for the refusal of Ms. Nuroh’s initial request for a summons seemed to hinder procedural fairness rather than provide it: because a box was not checked off indicating the hearing was virtual when all oral hearings at the LAT are virtual and then when the form was immediately corrected, rejecting it as out of time. The ten-day notice requirement for service of a summons would not appear to be a pressing consideration with respect to an employee of TD.

[41] In addition to the summons for Ms. Leahy at the opening of the hearing being rejected as non-compliant with r. 8.2, it was also rejected on the basis that having received the adjuster’s logs, she was not a necessary witness. Having determined that this matter should be referred back to the Tribunal on the basis of the failure to issue a summons for Dr. Hasan, it is not necessary that there be a determination of whether the failure to issue a summons for Ms. Leahy caused procedural unfairness. However, I would point out that the basis on which the summons was initially rejected seems overly technical in the extreme. In addition, it seems doubtful that a claim for a special award could be made out on the basis of an adjuster’s logs without being able to ask questions of the adjuster as to whether she regularly revisited her decision regarding the denial of benefits based on new medical information.

Conclusion

[42] The appeal is allowed and the Decisions set aside. The matter is referred back to the Tribunal to be heard by another adjudicator. This does not include the issue of post-104 income replacement benefits, which has settled.

Costs

[43] Ms. Nuroh is entitled to costs in the agreed upon amount of $7,500.

Backhouse J.

I agree _______________________________

Lococo J.

I agree _______________________________

Kaufman J.

Released: December 17, 2025

CITATION: Nuroh v TD General Insurance Co., 2025 ONSC 6997

DIVISIONAL COURT FILE NO.: 784/24 and 785/24

DATE: 20251217

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, Lococo and Kaufman JJ.

BETWEEN:

YAA NUROH

Applicant

– and –

TD GENERAL INSURANCE COMPANY and THE LICENCE APPEAL TRIBUNAL

Respondents

REASONS FOR JUDGMENT

BACKHOUSE J.

Released: December 17, 2025