RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 23-015700/AABS
Case Name: Ria Medalla v. Wawanesa Insurance
Written Submissions by:
For the Applicant: Shahzad Ayub, Counsel
For the Respondent: Nawaz Tahir, Counsel
OVERVIEW
1On July 28, 2025, the applicant requested reconsideration of the Tribunal’s decision released July 7, 2025 (“decision”).
2Stemming from an accident on January 3, 2019 and a request for benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”), the parties participated in a written hearing. In the decision, the adjudicator found the applicant did not demonstrate entitlement to the disputed treatment plans. The adjudicator further denied her requests for an award and interest.
3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or
c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
4The applicant is seeking an order finding that she is entitled to payment for two of the disputed treatment plans, i.e., the psychological services plan, dated March 30, 2023, and the treatment plan for an orthopaedic assessment, dated March 1, 2023. The other treatment plans were not addressed in her submissions.
5The respondent asks the Tribunal to dismiss the applicant’s request.
RESULT
6The applicant’s request for reconsideration is dismissed.
ANALYSIS
7The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process 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. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
8The applicant checked off Rule 18.2(b) on her Request for Reconsideration form. However, in her initial reconsideration submissions, the applicant only refers to Rule 18.2(a). There is a brief reference to Rule 18.2(b) in her reply, but I find this reference is largely a repetition of the same arguments she is making pursuant to Rule 18.2(a). As such, I have used the framework under Rule 18.2(a) of jurisdiction and procedural fairness to assess this request.
9I find the applicant has not established grounds for reconsideration.
10Section 38(8) of the Schedule requires an insurer to inform an insured person, within ten business days after it receives a treatment plan, of which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.
11If an insurer does not comply with s. 38(8), the following consequences from s. 38(11) are triggered:
The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).
12Briefly, the adjudicator found that the respondent did not deny the psychological services and orthopaedic assessment plans in accordance with the 10-day deadline set out in s. 38(8). The denials were both sent out 18 business days after receipt of the treatment plans. However, as there was no evidence that the applicant had incurred the plans prior to receiving the late denials, the adjudicator followed Aviva General Insurance Company v. Vesna Catic, 2022 ONSC 6000 (“Catic”), to conclude that no payment was owing.
13The applicant alleges the Tribunal acted outside of its jurisdiction and committed a material breach of procedural fairness by concluding that she was not entitled to payment of the two plans. According to the applicant, the adjudicator should have followed the Divisional Court’s ruling about the “mandatory” nature of s. 38(11)2 in Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 (“Zheng”). Instead, the Tribunal unfairly inserted itself into the dispute by relying on Catic, even though neither party raised this case. The applicant also points out that the adjudicator found the respondent did not address the lateness of its denials in its written submissions. According to the applicant, she had no notice that Catic would be relied upon, so she was unfairly deprived of a chance to explain why the Court’s ruling in Zheng should be preferred.
14The applicant then argues that the reasons in Catic are “fraught with serious errors”, as she alleges the Court did not properly interpret the meaning of “shall” in s. 38(11)2, nor did it account for the interaction between s. 38(8) and s. 38(11). The applicant also claims that the “judicial notice” taken in Catic regarding communications between treatment providers, insured persons, and insurers is “appallingly bad”. Rather, the applicant contends that the reasoning in Zheng correctly interprets the “mandatory” nature of the remedy in s. 38(11)2 in a manner that aligns with the statutory interpretation required by Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 (“Tomec”).
15To start, I do not find the applicant has shown a breach of procedural fairness or an overstep of the Tribunal’s jurisdiction based on her argument that the adjudicator unfairly entered the fray. Catic is a binding case on the Tribunal as it relates to denial notices for treatment plans. Even if the parties did not raise this case, the adjudicator had an obligation to rely on this binding ruling.
16Further, even though the respondent did not address the late denials in its submissions, it was still incumbent on the applicant to show she was entitled to payment of the plans under s. 38(11). The onus to demonstrate entitlement to a treatment plan rests with the insured person, such that the applicant had the obligation to show not only that there was a breach of s. 38(8), but that she met the requirements for payment under s. 38(11). By not demonstrating that the plans had been incurred within the relevant period under s. 38(11)2, the adjudicator correctly determined that the applicant was not entitled to the remedy—regardless of whether the respondent commented on this submission.
17Finally, I do not find the adjudicator acted outside of his jurisdiction or materially breached the applicant’s right to procedural fairness by following the holding from Catic. Aside from the binding nature of this ruling, I find the applicant’s arguments about Catic are not compelling.
18First, the applicant claims that the Divisional Court incorrectly interpreted the word “shall” in s. 38(11)2. Instead of determining that this remedy is engaged whenever there is a breach of s. 38(8), the Court chose to interpret this wording in a manner that rendered the remedy as conditional on meeting the rest of the terms laid out in this subsection, namely, the need to incur the plan.
19Though the applicant contends that reading the word “shall” as a mandatory consequence is more in line with the guidance from Tomec, I find there was nothing improper about the Court expanding the scope of its statutory interpretation to incorporate the rest of this provision. By following the modern principle of statutory interpretation laid out in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), decision-makers must review the words of a provision within the entire context, scheme, and object of the legislation. As such, I see no issue with the Divisional Court going beyond the word “shall” to incorporate the rest of s. 38(11)2 in its interpretation. In fact, this kind of analysis is required by the Supreme Court.
20Second, and in a similar vein, the applicant’s arguments about the interaction between s. 38(8) and s. 38(11) do not consider the full wording of these provisions. According to the applicant, an insurer cannot satisfy the requirement under s. 38(11)2 to provide “a notice described in subsection (8)” after the 10-day deadline has passed, since a compliant notice under s. 38(8) needs to be provided within 10 business days of receiving a treatment plan. Therefore, by finding that an insurer can cure a late notice and end the period under which the remedy under s. 38(11)2 operates, the applicant claims Catic is “incoherent, and in breach of obvious legislative intent”.
21I do not agree. The wording of s. 38(11)2 envisions situations where a denial may be received after the 10-day deadline from s. 38(8), such that the remedy will cease to operate (emphasis added):
The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).
22It is a well-accepted principle of statutory interpretation that legislatures do not speak for no purpose. If the applicant’s interpretation was correct, there would, in turn, be no reason for the legislature to add this proviso about how the period of payment starts after the 10-day deadline, and then ends “on the day the insurer gives a notice”.
23I also note that there is no distinction between a notice with deficient medical reasons and a notice sent after the 10-day deadline. Both instances are captured under the wording of s. 38(11).
24Finally, regardless of the applicant’s opinions about the soundness of the judicial notice taken in Catic, it is well within the Court’s right to make and then rely on these observations. The Tribunal is bound to follow these reasons.
25Overall, the applicant has not demonstrated that the Tribunal acted outside of its jurisdiction, nor has she established that the Tribunal materially breached her right to procedural fairness. Taken together, the applicant has not established grounds for reconsideration.
CONCLUSION & ORDER
26The applicant’s request for reconsideration is dismissed.
Craig Mazerolle
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: October 29, 2025