The Licence Appeal Tribunal’s reconsideration decision in Mirzaie v. Intact Insurance Company (2025 ONLAT 23-003877/AABS-R2) is a strong reminder that efficiency in administrative proceedings cannot come at the expense of procedural fairness. In a rare use of its own initiative review powers, the Tribunal cancelled key portions of both its initial merits decision and its reconsideration decision, ordering a partial rehearing on catastrophic impairment and attendant care benefits.
At the heart of the ruling is a simple but consequential principle: when expert evidence is pivotal to the outcome, parties must have a meaningful opportunity to test it.
Background
The applicant was injured in a 2016 motor vehicle accident and pursued accident benefits under the post-2010 Statutory Accident Benefits Schedule. Following a six-day videoconference hearing, the Tribunal found that he was not catastrophically impaired under either Criterion 7 (whole person impairment) or Criterion 8 (mental and behavioural impairment). With the catastrophic impairment claim dismissed, his claim for $6,000 per month in attendant care benefits also failed. Apart from approval of a chronic pain assessment, the application was dismissed in full.
A request for reconsideration was unsuccessful. The applicant then commenced a Divisional Court appeal.
While the court proceeding was underway, the Tribunal invoked Rule 18.5 of its Rules to initiate its own review, focusing specifically on whether reliance on the insurer’s expert reports, in the absence of cross-examination, amounted to a material breach of procedural fairness.
The Core Issue
The insurer had served multiple section 44 assessment reports and included the assessors on its final witness list. During the hearing, however, it elected not to call those experts. Despite this, the panel admitted the reports and relied on them, most notably the neuropsychological opinion that assigned a 0 percent WPI for mental status and integrative functioning.
That opinion was decisive. The panel preferred it over the applicant’s neurologist, who assessed a 14 percent impairment in the same category. Without those 14 percentage points, the applicant fell short of the 55 percent threshold required for catastrophic impairment under Criterion 7.
The reconsideration panel initially held that the process was fair, emphasizing that the applicant had not objected during the hearing or sought summonses for the insurer’s experts.
Vice-Chair Craig Mazerolle, disagreed.
Why the Tribunal Found a Breach of Procedural Fairness
The Vice-Chair concluded that once the insurer confirmed it would not call its experts, the only procedurally fair option was to exclude their reports. Cross-examination was not a peripheral issue; it was the mechanism by which the applicant could challenge evidence that ultimately determined the outcome of his claim.
Several points were critical to the analysis:
- Centrality of the evidence: The insurer’s expert opinion was not merely corroborative. It was explicitly relied upon to reject the applicant’s impairment rating and deny catastrophic impairment.
- Reasonable expectation of attendance: The insurer’s final witness list named the expert and that it may rely upon the material exchanged rather than call each individual witness”. It also stated that witnesses were required to attend for cross-examination. The LAT found that combined with the finality of witness lists ordered at the case conference, it was reasonable for the applicant to expect the expert to testify.
- Limits of evidentiary discretion: While the Tribunal has broad authority under the Statutory Powers Procedure Act to admit evidence, that discretion is constrained by fairness. Flexibility does not permit reliance on decisive expert opinions that one party has no real opportunity to test.
- Material impact on entitlement: The breach was not technical or harmless. It directly affected the catastrophic impairment analysis and, by extension, the applicant’s entitlement to attendant care benefits.
Importantly, the Tribunal rejected the insurer’s argument that the applicant’s failure to issue summonses or comply with procedural timelines cured the problem. In context, the applicant had already been denied summonses earlier in the process and could not reasonably be expected to pursue them again once the hearing was underway.
Issues Set Aside and Issues Confirmed
The remedy was carefully tailored. Only the findings tied to Criterion 7 and the $6,000 per month attendant care claim were set aside. All other conclusions from the original decision and reconsideration decision remain intact.
A rehearing will be conducted by a new adjudicator, with a case conference to set procedural directions. Crucially, the rehearing will allow for cross-examination of expert witnesses, restoring the procedural safeguard that was missing the first time.
The Tribunal also addressed, and rejected, the applicant’s separate complaint about being denied leave to file written submissions. It found no unfairness in requiring oral submissions in a videoconference hearing, particularly where supporting documents were still admitted as exhibits.
Importance of Decision
This ruling has implications well beyond this case.
It highlights that strategic decisions not to call expert witnesses can carry real risk if the Tribunal intends to rely on those reports to decide key issues. It confirms that procedural fairness at the LAT includes the right to meaningfully challenge expert evidence that goes to the heart of entitlement.
More broadly, the decision reinforces that administrative efficiency does not override fairness. Even in a high-volume tribunal system, adjudicators must ensure that outcomes are based on evidence tested through a fair process.
In short, Mirzaie is a clear statement that catastrophic impairment determinations cannot rest on untested expert opinions. Where they do, the Tribunal itself may step in to correct the process.
Arian Aria is the author of this blog and an articling student at ZTGH. If you have questions about double recovery and its implications, please contact Arian Aria at 647-427-3363.
