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Complimentary Issue Volume. 9 Issue. 33 – October 22, 2025

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In The Spotlight

The court heard an appeal in a CAT case where the Tribunal had determined and upheld on reconsideration that the Applicant did not meet the CAT designation due to MVA-related impairments. The court ultimately found three errors on the part of the Tribunal such that the original and upheld decisions could not stand. Notably, the court emphasized that the purpose of a reconsideration is to ensure the correct outcome for the parties. In two instances, the Tribunal appeared preoccupied with whether the errors were its own fault, a point the court confirmed is fundamentally not the issue.

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Court Quashes Tribunal Decision on CAT Claim Due to Multiple Errors

The Applicant Wilson, in Wilson v Intact, sought relief under the statutory right of appeal limited to errors of law and judicial review for other issues. At issue being whether she satisfies the CAT criteria under Criteria 6, 7 and 8. In the original decision, the Tribunal dismissed her claim under all three criteria, assessing her at 36% under Criterion 6, 48% under Criterion 7, and with only one marked impairment under Criterion 8 (adaptation in a work setting). These findings were upheld on reconsideration, same being in front of the same adjudicator.

Wilson alleged errors of law, breaches of the principles of procedural fairness, and unreasonable findings by the Adjudicator. She asked the court to make a finding that she is catastrophically impaired and remit the matter to the tribunal to determine the issue of the nature and extent of the benefits to which she is entitled. For their part, Intact “emphasizes the specialized nature of the tribunal and the deference owed to the Adjudicator’s decision. The respondent argues that there were no errors of law and there was no denial of procedural fairness. Rather, the applicant is merely trying to reargue factual issues that were carefully considered by the Adjudicator and decided in a manner not favourable to her position, but which were nevertheless reasonable.”

Court’s Findings

The court ultimately did not find breaches of procedural fairness that would warrant setting aside the decision. However, there were found to be “aspects of the decisions that are unreasonable and which are of sufficient impact that the decisions as a whole cannot stand. There are some issues with respect to benefits that would be intertwined with findings of fact on the level of impairment. There are also some intersections between levels of impairment between the different criteria, which make it inappropriate for this court to make a finding of catastrophic impairment. This should be done at the tribunal level. The decision is therefore quashed, and the application is remitted to the LAT for a new hearing before a different Arbitrator.”

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Procedural Fairness

The court found there to be no merit in the procedural fairness issues raised Wilson. She “was represented by counsel throughout. She knew the evidence being relied upon by the insurer and had a full opportunity to respond to it. She had also had a full opportunity to be heard and a right to request reconsideration. Following the hearing, the Adjudicator provided detailed reasons for rejecting the applicant’s claim. Those reasons are sufficient to tell the applicant why she was unsuccessful and to enable proper appellate review”.

Errors and Unreasonable Conclusions Alleged

The court found that Wilson provided a detailed critique of alleged errors and unreasonable conclusions by the Adjudicator. The court decided to focus on five key areas in which Wilson made a compelling argument for setting aside the decision, being:

(i) Double Vision (Criterion 6)

(ii) Peripheral Neuropathy in Upper Extremities (Criterion 6)

(iii) Medications (Criterion 6)

(iv) Equilibrium (Criterion 6)

(v) Criterion 8

Ultimately, it was the finding of the court that the decision by the Tribunal was unreasonable in the first three of the areas listed above. As for the latter two in the list, the Tribunal concluded that while there were “concerns”, the problems in the other two categories were not sufficient to render the decision “unreasonable”.

The Tribunal found that Wilson did not have diplopia. Her expert optometrist witness, Dr. Quaid, testified that Wilson had double vision, but that it was intermittent. Dr. Quaid “further testified that the AMA Guides do not distinguish between intermittent and constant when providing an evaluation for diplopia. Rather, if it is in the centre line of vision (which was the case for Ms. Wilson), it is the equivalent of 24%. The AMA Guides state:

Diplopia within the central 20˚ is estimated to be a 100% impairment of ocular motility … This is equivalent to the loss of vision of one eye, which is estimated to be …a 24% whole person impairment. Dr. Quaid therefore assigned 24% impairment due to double vision.”

However, “Intact’s expert witness, Dr. Breslin, awarded nothing for double vision because he did not objectively observe it in any of his testing. He acknowledged in his testimony that he had not seen Dr. Quaid’s report or the test results supporting that report and was not, therefore, in a position to comment on it.” In the original decision, the Tribunal accepted the evidence of Dr. Breslin and assigned a score of 0 for double vision, giving two reasons for this conclusion.

Tribunal’s Position

In his initial decision, the Adjudicator gave two reasons for this conclusion. First, “he took issue with Dr. Quaid’s failure to plot the diplopia along eight meridians in the visual field and to then assign a percentage of loss of ocular motility… because Dr. Quaid did not do that, his report was critically flawed. The Adjudicator also disagreed with Dr. Quaid arriving at 24% for line-of-sight diplopia without regard to the frequency of the episodes of double vision, pointing out that this would lead to an absurd result. He gave as an example a person who is free of diplopia 99% of the time and has virtually no impairment, but who would get the same impairment rating as someone who had lost an eye. Second, the Adjudicator held that he did not accept that Ms. Wilson had double vision at all. He was critical of Dr. Quaid’s finding as being based on the applicant’s reported symptoms and noted that the abnormalities shown in the physical tests done by Dr. Quaid in 2022 were not present when she was tested by Dr. Breslin one year later.”

On reconsideration the Tribunal again found “(1) that Dr. Quaid’s rating was flawed because he did not properly follow the AMA Guides and (2) the subsequent testing done by Dr. Breslin did not detect the left eye problem noted by Dr. Quaid and there was therefore no ongoing double vision eye impairment. The Adjudicator characterized the applicant’s grounds for reconsideration as being merely an argument about the weight he gave to particular evidence as opposed to an error.”

The Court Weighs In

The court agreed with Wilson “that the Adjudicator’s reasons on this issue do not stand up to the level of scrutiny required to meet the reasonableness standard. It is always open to an Adjudicator to prefer the evidence of one expert over another. However, a central issue here was objective testing. Dr. Quaid performed objective testing and found anomalies consistent with the applicant’s reporting of intermittent double vision.” As well, the Tribunal’s “conclusion that the double vision problem was no longer ongoing failed to take into account the applicant’s own evidence at the hearing that she continued to experience this problem. Thus, his finding that there was no double vision carries with it a finding that he did not believe the applicant’s testimony on this issue. However, he made no findings of credibility whatsoever. He also did not take into account the numerous other experts who recorded Ms. Wilson complaining of having double vision.”

Further, the Tribunal “made no mention of the report of Dr. Nguyen… (who) provided a report dated May 31, 2023, which was around the same time as Dr. Breslin did his assessment. Dr. Nguyen found substantial objective evidence of visual impairment consistent with double vision. On most of the functional tests, Ms. Wilson’s score was described as “poor” or “very poor” and Dr. Nguyen concluded she had “severe physical dysfunction skills” and that the “functional difficulties found are significant departures from the norm.” Those findings are consistent with those of Dr. Quaid. This does not mean that Dr. Breslin was wrong. He clearly stated that his opinion was based on what he was able to test at the time of his assessment.”

Continuing, the court noted that while “not necessary for the Adjudicator to refer to every piece of evidence before him in reaching a conclusion, where the bulk of the evidence strongly diverges from the evidence he accepted, logical reasons should be provided for preferring one over the other. The reasons provided do not logically support the conclusion reached. As for the aforementioned “absurd result”, the court found it “equally “absurd” to assess someone who has double vision “fairly often” (rated as 3 on a scale of 0-4) as having no degree of impairment at all.” Concluding, “the truth-seeking function of a hearing of this nature must be recognized. Where there was any confusion (and clearly there was in this case), it was open to the Adjudicator under Rule 18.4 of the LAT Rules to direct a further hearing on that particular issue. In my view, the Adjudicator was unreasonable in reducing a finding of a 24% impairment to 0% based on his own rigid interpretation of the Guides. This, particularly when coupled with his apparent disregard of other confirmatory evidence and the testimony of Ms. Wilson, as well as the absence of articulated reasons for doing so, leads me to the conclusion that the 0% assessment by the Adjudicator was unreasonable and cannot stand.”

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Peripheral Neuropathy

The neurologist retained by Intact Insurance assessed “Wilson as having an impairment rating of 6% for peripheral neuropathy in the right upper extremity and an additional 6% for the left upper extremity. These ratings were accepted by the applicant. It is clear from Dr. Mustafa’s report that he referred to the AMA Guides in reaching those conclusions and also clear that he was referring to the “Muscular and Peripheral Nervous System” in doing so. However, in referring to the applicable charts, he made an error by referencing the incorrect table and pages in the Guides. The citation he provided was from a section on emotional and behavioural impairment, which was clearly a mistake.”

Error Not Corrected

The Tribunal “pointed out this error in his initial reasons, but instead of seeking clarification, or finding that this was an inconsequential error, he held:

The impairment does not appear to be related to the table used to rate that impairment. As such, I give no weight to this impairment rating.

Thus, due to a simple typographical or transcription type error with respect to the applicable table in the AMA Guides, he awarded 0% for an impairment agreed by the parties to be 11%. That is not a reasonable conclusion.”

On the reconsideration, the Tribunal maintained that “It is not possible to understand a WPI rating without referencing the correct table used to make that rating. Consequently, I find that I did not fail to appreciate the evidence, and therefore, did not make an error of fact that would have resulted in a different outcome.

This determination by the Adjudicator had nothing to do with whether the applicant did or did not have the degree of impairment that all of the experts and both parties agreed that she had. A claim for catastrophic impairment benefits carries with it significant consequences for the future economic security and quality of life of the applicant. It troubles me that a tribunal of this nature would take such a rigid stance on an issue like this. All the Adjudicator had to do was determine the right chart. Instead, he took the position that since it was the doctor that made the mistake and not him, there was no error to be corrected. That is untenable in light of the evidence before the Adjudicator and an unreasonable finding that cannot, in the interests of justice, be permitted to stand.”

Medications

The Tribunal “considered the evidence of Dr. Gallimore, who determined that there should be a rating of 2% for medications…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%.”

Wilson 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…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.” This evidence is relevant and determinative and was not taken into account by the Adjudicator.”

Another Error Not Corrected

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.”

This was found to be “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.”

Further, “(w)hile 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.

Conclusions

“The reviewable errors I have found under Criterion 6 are sufficient to require a new hearing as they could affect the outcome. Given the circumstances, the new hearing should be before a different adjudicator. The applicant has requested that if reviewable errors are found, this Court should make a determination that the applicant has a catastrophic impairment and then remit the matter to the tribunal to determine what level of benefits should then flow from that. There are a number of problems with that. First, the role of fact-finding does not sit easily with this court, which is working solely through a “paper” record. That is particularly problematic where factors in various categories are interlinked and the area is highly specialized. Further, the appropriate level of benefits is linked to the degree of impairment found and the determination of benefits should therefore be determined by the same decision maker. Again, that is not an appropriate role for this court.”

Therefore, “although I have found that deference is due to the findings of the Adjudicator in other categories, the new adjudicator does not owe the same deference to the original findings. Many of these factual issues overlap and many are dependent on credibility findings and other findings of fact from the applicant’s evidence. Unless the parties can come to some agreement as to levels of impairment in some categories, this cannot be done by cutting and pasting. A new hearing before a new adjudicator is required with respect to all issues.

Accordingly, the decision and reconsideration decision of the Adjudicator is quashed and a new hearing is ordered before a different adjudicator. The parties agreed that costs should be fixed at $7,500 payable to the successful party. Therefore, Intact Insurance shall pay costs to Ms. Wilson in that amount, all inclusive.”

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