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Insurance - Auto - Reconsiderations. 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. . Patton v. Aviva Insurance Co. of Canada
In Patton v. Aviva Insurance Co. of Canada (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a SABS joint appeal-JR, here where the LAT "dismissed the application as outside the two-year limitation period and refused to exercise its discretion to extend the limitation period".
Here the court considers LAT reconsideration procedure:Issue 4: Did the LAT breach procedural fairness in the Reconsideration Decision by raising issues not raised by the parties?
[60] These issues raised by LAT on its own initiative were primarily in relation to new arguments raised by Mr. Patton that were not appropriate to raise on reconsideration. The LAT was obligated pursuant to r. 18.1 of the Licence Appeal Tribunal Rules to comply with specific criteria for granting reconsideration. It was required by r. 18.1 to reject any new arguments that could have been raised at the first instance hearing. The LAT made no error. . Miceli v. TD Insurance
In Miceli v. TD Insurance (Ont Divisional Ct, 2025) the Divisional Court allowed an appeal, this from a LAT SABS claim denial.
Here the court briefly considers the LAT reconsideration procedure:[14] In the Reconsideration Decision, the Tribunal identified that the test for reconsideration requires meeting a “high threshold”. As put by the Tribunal, it “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”. . Adam v. Aviva General Insurance Company
In Adam v. Aviva General Insurance Company (Div Court, 2024) the Divisional Court dismissed an appeal of a LAT SABS decision "which found that she failed to demonstrate entitlement to post-104 week income replacement benefits (“IRBs”) pursuant to s.6(2) (b) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“SABS”)".
Here the court held that new leading case law did not "constitute new evidence" for reconsideration purposes:Issue 1: Did LAT err in law in finding that new binding case law, Varriano v. Allstate Insurance Company of Canada (“Varriano”), 2023 ONCA 78, is not evidence for the purpose of a request for reconsideration under LAT Rule 18.2(d)?
[5] A new decision from a higher court does not constitute new evidence that can be relied upon for a reconsideration request: see Jhajj v. Canada (Minister of Employment and Immigration), 1995 CanLII 3583 (FC), [1995] 2 FC 369, where the court rejected a similar request for reconsideration because recognizing new jurisprudence as evidence could have the effect of (1) inundating lower courts with reconsideration requests (paras. 32-34), and (2) could subject settled cases to re-litigation, contrary to established legal principles (paras. 35-37).
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