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Administrative - Reconsiderations (5). Wilson v. Intact Insurance Company
In Wilson v. Intact Insurance Company (Ont Div Ct, 2025) the Ontario Divisional Court allowed an insured's joint appeal/JR, this from a LAT SABS ruling that denied them catastrophic impairments benefit.
Here the court considered the function of a reconsideration, here in a LAT SABS context:[36] In his initial decision, the Adjudicator found that Dr. Gallimore’s analysis was incomplete because he did not specify whether the medications were masking the impairments resulting from the accident, as opposed to causing further side effects. He therefore found that there was an insufficient basis to rate the applicant under this category and gave an assessment of 0% under this heading.
[37] On reconsideration, the applicant argued that this was an error of law because the Adjudicator failed to take into account the evidence of Dr. Farhadi regarding medications. Dr. Farhadi, who is a neurologist, also assigned 2% for the medications Ms. Wilson was on as a result of the accident. At the hearing, Dr. Farhadi testified that the combination of medications Ms. Wilson was taking since the accident may have “synergistic effects” on her including fatigue, dizziness, sleep/wake disturbances, and “other potential neurologic side effects.”[14] This evidence is relevant and determinative and was not taken into account by the Adjudicator.
[38] On reconsideration the Adjudicator refused to change his assessment, relying on the failure of counsel for the applicant to specifically direct him to the evidence of Dr. Farhadi in closing submissions on this point. The Adjudicator reasoned that he, therefore, committed no error himself. He held that the reference to Dr. Farhadi’s evidence in the reconsideration request was “new submissions being made for the first time” and stated that “a request for reconsideration is not an opportunity to re-litigate the case with new arguments.”
[39] This is an unreasonable decision in light of the evidence that was before the Adjudicator both in the first instance and on reconsideration. It cannot stand. This is an enormous record covering thousands of pages of material, some of it quite complex. It is understandable that some material can be overlooked, particularly if the Adjudicator was not specifically directed to it. However, Dr. Farhadi also testified on this issue and was cross-examined on it. It was important and determinative evidence and it should not have been disregarded, even in the original decision.
[40] While the original error by the Adjudicator is understandable, the position he took on reconsideration is not. One of the primary purposes of reconsideration is error correction. It is far easier for the Adjudicator to correct errors at this stage rather than forcing the parties into the judicial system to accomplish that purpose, not to mention considerably faster and more cost-effective. A trier of fact has an obligation to consider the whole of the evidence in reaching a conclusion. Here, the Adjudicator has acknowledged not taking into account the relevant and determinative evidence of Dr. Farhadi and seeks to excuse it on the basis that counsel did not specifically refer him to that evidence on this point. Again, he seeks to emphasize that he was not the one who made the mistake, and therefore there is no basis to change his position. This is completely without regard to the underlying purpose of the hearing, which is to make a fair decision based on the whole of the evidence. This should have been a simple issue of correcting an oversight. It is fundamentally unreasonable for the Adjudicator to refuse to change his position because counsel failed to direct him to specific relevant testimony that was on point. The reconsideration process is not about critiquing the thoroughness of the Adjudicator and holding him to account. It is about reaching the right result for the parties. When a mistake is discovered, an answer by the Adjudicator that it was not his fault completely misses the point of the reconsideration. Again, this is a decision that cannot stand. . Rocca v. Bayer [administrative reconsideration as final v interlocutory]
In Rocca v. Bayer (Ont Div Ct, 2025) the Ontario Divisional Court considers cross-appeals, these from an "order granting the request for review" of a costs order of a Normal Farm Practice Protection Board decision.
Here the court considers that reconsideration decisions can be final and interlocutory, depending on the circumstances:[27] In support of their position that the vice-chair’s order was final, the Bayers rely on 2541005 Ontario Ltd. v. Oro-Medonte (Township), 2023 ONSC 5569 (Div. Ct.). In that case, on a motion for leave to appeal to this court from a decision of the chair of the Ontario Land Tribunal granting a request for review, the motion judge held that the decision was final. However, Oro-Medonte is not and should not be taken as authority for the proposition that all orders granting a request for review are final. In fact, in Oro-Medonte, the motion judge said, at para. 32: “This court is not prepared to say that every Review Decision or Review Order will be final. There may well be circumstances that make the Chair’s decision/order interlocutory. This is not one of those circumstances.”
[28] In Oro-Medonte, the township had passed a zoning by-law amendment that restricted the growing of cannabis and industrial hemp crops to two industrial zones and did not permit such activities in agricultural zones. 2541005 Ontario Limited appealed the by-law amendment to the Ontario Land Tribunal. Following a hearing, the tribunal ordered the repeal of the by-law.
[29] The township then requested a review of the hearing decision under s. 23 of the Ontario Land Tribunal Act. Under rule 25.2 of the Tribunal’s Rules of Practice and Procedure, requests for review are considered by the Tribunal chair. Under rule 25.6, the chair has discretion to dismiss the request for review, order a motion to consider the request for review or grant the request for review in whole or in part.
[30] However, rather than simply granting the request for a review of the order, or ordering a motion to consider the request, the chair ordered that the order repealing the bylaw be “set aside and rescinded”, and that the appeal be reheard by a new panel. The basis of the order to set aside and rescind the order, rather than to simply allow the request for review, is unclear. Under rule 25.10 of the Tribunal rules, it is the Tribunal member or panel conducting the review hearing that has jurisdiction to “confirm, rescind, change, alter or vary” any order made by the Tribunal. Under rule 25.2, in order to provide for a rehearing under rule 25.10, it was unnecessary for the chair to set aside the original order. However, despite having said that the order was set aside and rescinded, the chair clarified that he did not intend to “prejudge in any way what outcome will result from the rehearing.” It would therefore appear that he did not intend to deal in any way with the merits of the appeal.
[31] On the motion for leave to appeal the chair’s order to this court, the motion judge found that it was final because it went “to the very heart of the matter. It overturned a lengthy Tribunal Hearing on its merits.” It was not “related to a procedural or collateral issue.” “It “went to the very foundation of this entire matter.” It dispose[d] of a substantive issue in the proceedings.”
[32] In my view, the present case may easily be distinguished. In Oro-Medonte, at the time of the motion for leave to appeal, no decision, approval or order remained extant which the new panel could confirm, rescind, change, alter or vary.
[33] Conversely, in the present case, Vice-Chair Neil did not purport to set aside or rescind the Board’s order. Rather, she granted the request for review, ordered a new costs hearing to take place in writing, and provided a timeline for the parties’ submissions. Accordingly, all that has happened so far is that a vice-chair has exercised her discretion to order a review of the costs order. The decision to confirm, vary, suspend or cancel the order will be made by a new panel of the Board. If the new panel confirms the existing costs award, there will be nothing for the Bayers to appeal.
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