Licence Appeal Tribunal
RECONSIDERATION DECISION
Before: Matthew Frontini, Adjudicator
Licence Appeal Tribunal File Number: 23-005067/AABS
Case Name: Esteban Valencia v. Economical Insurance
Written Submissions by:
For the Applicant: Rajiv Kapoor, Paralegal
For the Respondent: Jeremy Hanigan, Counsel
OVERVIEW
1On April 30, 2025, the applicant requested reconsideration of the Tribunal’s decision dated April 9, 2025 (“decision”).
2Following a written hearing, I released the decision, wherein I found that the applicant’s injuries were predominantly minor and therefore were subject to treatment within the $3,500.00 limit of the Minor Injury Guideline (“MIG”). I also found that the applicant had not established that he was entitled to payment of the two disputed treatments plans, pursuant to s. 38 of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The treatments plans are for psychological services and a chronic pain assessment.
3Specifically, I found that the respondent’s denials of the disputed treatment plans did not breach the notice requirements of s. 38(8), and therefore, any requirement that the respondent pay for these treatment plans under s. 38(11) was not triggered.
4The 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.
5The applicant submits that the Tribunal committed a material breach of procedural fairness as well as an error of law such that the Tribunal would likely have reached a different result had the error not been made. The applicant seeks an order that the two disputed treatment plans are payable, pursuant to s. 38(11), and an award. Alternatively, the applicant seeks an order for a rehearing on all issues in dispute.
6The respondent opposed the request for reconsideration. It submits that the applicant has not satisfied his burden to establish there are grounds for reconsideration under either Rule 18.2(a) or Rule 18.2(b).
RESULT
7The applicant’s request for reconsideration is granted, in part.
8Pursuant to Rule 18.4, the decision is varied. Paragraph 39 of the decision now reads as set out at paragraph 32 below. Paragraphs 3 and 64 now read as detailed below:
I find that:
i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is entitled to the disputed treatment plan for psychological services in accordance with s. 38(11) of the Schedule;
iii. The applicant is not entitled to the treatment plan for a chronic pain assessment;
iv. The applicant is entitled to interest on any overdue payment of benefits in respect of the psychological treatment, pursuant to s. 51 of the Schedule;
v. The applicant is not entitled to an award under s. 10 of O. Reg 664; and
vi. The application is dismissed.
9As it relates to the chronic pain assessment treatment plan, the applicant’s request for reconsideration is dismissed.
ANALYSIS
10The 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.
Rule 18.2(a) – The Tribunal did not commit a material breach of fairness
11I find that the applicant has not established that the Tribunal committed a material breach of procedural fairness, pursuant to Rule 18.2(a).
12At paragraph 3 of his Reconsideration Reply submissions, the applicant delineates the alleged material breach of fairness as follows:
…The Applicant is not merely expressing dissatisfaction with the Tribunal’s findings of fact but rather identifying serious error in law and material concerns regarding the fairness of the process by which those findings were reached. Contrary to the Respondent’s characterization, the Applicant’s submissions are rooted in well-established principles of administrative law that require adjudicative bodies to ensure a fair hearing, including proper consideration of relevant evidence and arguments especially Section 38(8), 38(9) and 38(11) of the Schedule. The absence of case law citations in the initial reconsideration request with respect to procedural fairness does not negate the legitimacy of the procedural fairness concerns raised as well as misinterpretation of Section 38(8), 38(9) and 38(11) of the Schedule…
(emphasis added)
13The applicant’s submissions identify the Tribunal’s allegedly improper consideration of relevant evidence and arguments pertaining to the legal effects of ss. 38(8), 38(9) and 38(11) as a material breach of procedural fairness. In essence, because he disagrees with the Tribunal’s legal conclusions and the outcome of the decision, the applicant argues that he was denied procedural fairness.
14The applicant’s submissions do not establish that the Tribunal committed a material breach of procedural fairness. Procedural fairness focuses on a party’s right to be heard and the process of decision-making that affects a party. The applicant has not identified any material breach of fairness as it relates to his right to be heard or the decision-making process.
Rule 18.2(b) – The Tribunal erred in law, such that the Tribunal would likely have reached a different result in respect of the treatment plan for psychological services had the error not been made
15Regarding the psychological services treatment plan, I find that the applicant has established that I made an error of law or fact such that I would likely have reached a different result had the error not been made.
16The applicant submits that I made two errors. First, he claims the Tribunal misinterpreted s. 38(8). Further, he asserts that I failed to consider the implications of s. 38(9) of the Schedule. Each of these alleged errors of law are set out in further detail and discussed below.
The Tribunal did not misinterpret s. 38(8) of the Schedule
17The applicant submits that I erred in law in determining that the respondent’s denials complied with s. 38(8) of the Schedule. More specifically, the applicant submits that I did not adequately factor in the reasoning from G.P. v. Wawanesa Insurance Company, 2022 CanLII 45306 (ON LAT) (“G.P.”). At paragraph 7 of his reconsideration submissions, the applicant repeats the arguments made at paragraphs 58 and 59 of his submissions for the written hearing. These earlier arguments also relied upon G.P.
18These arguments now being made on reconsideration were already considered and discussed at paragraphs 53-56 of the decision. In the decision, I found that the denials in this application did not “simply quote[ ] or rely[ ] the results of an assessment”, contrary to the applicant’s submissions.
19The applicant’s submissions, both at the hearing and now in his request for reconsideration, rest on his contention that the denials “simply state that the entirety of the medical documentation has been reviewed” and that the assessors concluded that the treatment plans in dispute were not reasonable and necessary. That is not an accurate characterization of the denials in this application. The decision at paragraph 56 also described how the denials in this application differed from the denials in G.P.
20The applicant has not identified an error of law with respect to the decision regarding s. 38(8). While the applicant may disagree with my analysis of the denials, disagreement alone does not constitute an error of law warranting reconsideration under Rule 18.2(b).
The Tribunal misinterpreted s. 38(9) of the Schedule such that the Tribunal would have reached a different result had the error not been made in respect of this treatment plan
21I find that the applicant has established that I made and error of law with respect to the interpretation of s. 38(9) as it relates to the treatment plan for psychological services, dated November 4, 2022. I also find that I would likely have reached a different result if this error of law had not been made.
22Section 38(9) requires an insurer to advise in a denial of treatment plan made under s. 38(8) if the insurer believes that the MIG applies to the insured’s impairments.
23It is not disputed that the respondent’s denial of this treatment plan, dated November 18, 2022, did not reference the MIG, nor did it state that the MIG applied to the applicant’s impairments. It is also not disputed that, while this denial referred to the scheduling of a subsequent s. 44 assessment, no such assessment was ever scheduled or conducted in respect of this treatment plan. As the denial did not advise the applicant that the respondent believed that MIG applied, the denial contravened s. 38(9) and I erred in originally finding this denial complied with s. 38(9).
24With respect to s. 38(9), the respondent’s reconsideration submissions argue that there was no error of law because a “different analysis of section 38(9) would have found that section 38(9) did not apply and the outcome of the decision denying the treatment plans would have resulted in the same denial…” The respondent submits that two reasons support this conclusion: (1) that the denial was made on the basis that there was no injury; and (2) the treatment plans addressed injuries that are not defined as forming part of the MIG and therefore s. 38(9) is not triggered.
25Respectfully, I am not persuaded by the respondent’s arguments. First, even if the respondent believed there was no injury whatsoever, which is difficult to accept in the face of the various s. 44 reports in evidence, that would necessarily mean that the applicant was confined to the MIG limit of $3,500.00. As such, the denial needed to reference the MIG to comply with the respondent’s notice obligations under s. 38 of the Schedule. The respondent’s second argument cannot be accepted because s. 38(9) requires the insurer to advise when it believes the insured’s impairments are within the MIG. Whether a treatment plan is for services to treat impairments that are outside the MIG is not relevant to this analysis and the insurer’s belief regarding the nature of the insured’s impairments.
26As the respondent’s denial did not comply with s. 38(9), it, in turn, contravened s. 38(8) and the mandatory consequences set out in s. 38(11) follow. This is a remedial measure within the Schedule that is meant to ensure that insurers comply with their notice obligations. To the extent that there is any ambiguity regarding the interpretation of these subsections, and while neither party raised this authority, I am bound by the Court of Appeal’s guidance in Tomec v. Economical Mutual Insurance Co., 2019 ONCA 882 (“Tomec”). Specifically, the Court of Appeal states that any conflicting interpretations of the Schedule should be resolved in favour of the public policy objective of providing access to benefits to insured persons: see Tomec at paras. 16 and 45. The Divisional Court recently applied Tomec to the same effect in Botbyl v. Heartland Farm Mutual Inc., 2025 ONSC 3349 at paras. 32 – 33.
27As a result, I find that the respondent contravened s. 38(8) of the Schedule and that the applicant is entitled to the services set out in treatment plan for psychological services in accordance with s. 38(11).
Rule 18.2(b) – The Tribunal did not err in law or fact such that the Tribunal would likely have reached a different result had the error not been made in respect of the treatment plan for a chronic pain assessment
28Regarding the chronic pain assessment treatment plan, I find that the applicant has not established that 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.
29Once again, the applicant submits that I misinterpreted s. 38(8) and failed to consider the implications of s. 38(9) of the Schedule. Each of these alleged errors of law are set out in further detail and discussed below.
The Tribunal did not misinterpret s. 38(8) of the Schedule
30For the reasons set out above in paragraphs 17 - 20, I find that the applicant has not established that I made an error of law with respect to the decision’s ruling regarding s. 38(8) as it relates to this treatment plan, dated November 18, 2022, for a chronic pain assessment.
The Tribunal’s error in respect of the interpretation of s. 38(9) would not likely have resulted in a different result if the error had not been made in respect of this treatment plan
31I find that the applicant has established that the Tribunal made an error of law in respect of its interpretation of s. 38(9). However, the Tribunal would not likely have reached a different result in respect of the treatment plan for a chronic pain assessment had the error not been made.
32Again, it is not disputed that the respondent’s denial of this treatment plan, dated November 18, 2022, also did not reference the MIG or state that the MIG applied to the applicant’s impairments. It also referred to scheduling a subsequent s. 44 assessment. A s. 44 assessment was conducted by Dr. Bansal on December 15, 2023, and the respondent provided a further denial on December 22, 2023. In the December 22, 2023 denial, the respondent denied the treatment plan on the basis that it was not reasonable and necessary, and that the applicant’s impairments were subject to the MIG.
33As the respondent provided the applicant with the s. 44 report, s. 38(13) – (15) apply and s. 38(9) is no longer relevant. In his hearing submissions, the applicant had also argued that the respondent contravened s. 37(5) of the Schedule because the report was provided to him almost one month after it was finalized. As discussed at paragraphs 57-59 of the decision, the applicant’s submissions did not demonstrate that there had been any contravention of s. 37(5) as it relates to Dr. Bansal’s report. Further, the applicant’s submissions did not establish how an alleged contravention of s. 37(5) is related to s. 38(11). Therefore, even if the applicant’s submissions regarding s. 38 were accepted, any deficiency in the November 22, 2022 denial was cured by the December 22, 2023 denial. The second denial complied with s. 38(14) of the Schedule, and so the respondent is not liable to pay for the goods and services set out in the treatment plan for a chronic pain assessment.
34The applicant has not identified an error of law or fact that, had it not been made, would have likely resulted in the Tribunal reaching a different result.
The applicant is not entitled to an award
35In the decision, I found that the applicant did not make any specific submissions in respect of an award and, consequently, was not entitled to an award. The applicant’s reconsideration submissions do not make any specific arguments as to the respondent’s liability for a special award. I find that the applicant has not established that he is entitled to an award.
Rule 18.4 – Varying the Decision
36As I have found that applicant has established grounds for reconsideration under Rule 18.2 with respect to the treatment plan for psychological services, I must now determine what the appropriate remedy is under Rule 18.4.
37Rule 18.4 states:
Upon reconsidering a decision of the Tribunal, the Tribunal may:
(a) Dismiss the request; or
(b) After providing responding parties an opportunity to make submissions,
i. Confirm, vary, or cancel the decision or order; or
ii. Order a rehearing on all or part of the matter.
38In light of the error that has been established and considering that there was all necessary information and arguments to render a fair and just decision in the written hearing, I find that it is appropriate to vary the Result and Order sections of the decision, along with the relevant part of my analysis. This mean I will be varying paragraphs 3, 39 and 64 of the decision.
39Specifically, as noted above, I am satisfied that the applicant has shown there was an error in denying his argument about s. 38(9) and the denial letter for the psychological services treatment plan. The rest of the decision is confirmed, so I am varying my analysis of this argument (made at paragraph 39 of the decision) with the following paragraph:
It is not disputed that the respondent’s denial of this treatment plan, dated November 18, 2022, did not reference the MIG, nor did it state that the MIG applied to the applicant’s impairments. It is also not disputed that, while this denial referred to the scheduling of a subsequent s. 44 assessment, no such assessment was ever scheduled or conducted in respect of this treatment plan. As the denial did not advise the applicant that the respondent believed that MIG applied, the denial contravened s. 38(9) and I erred in originally finding this denial complied with s. 38(9).
40Similarly, for both the Results section and the Order section of the decision, variations will be made to match this conclusion.
CONCLUSION & ORDER
41The applicant’s request for reconsideration is granted, in part.
42Pursuant to Rule 18.4, the decision is varied. Paragraph 39 of the decision now reads as set out at paragraph 32 above. Paragraphs 3 and 64 now read as detailed below:
I find that:
i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is entitled to the disputed treatment plan for psychological services in accordance with s. 38(11) of the Schedule;
iii. The applicant is not entitled to the treatment plan for a chronic pain assessment;
iv. The applicant is entitled to interest on any overdue payment of benefits in respect of the psychological treatment, pursuant to s. 51 of the Schedule;
v. The applicant is not entitled to an award under s. 10 of O. Reg 664; and
vi. The application is dismissed.
43The applicant’s request for reconsideration, as it relates to the treatment plan for a chronic pain assessment, is dismissed.
Matthew Frontini
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: October 27, 2025