RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 23-008374/AABS
Case Name: Joseph Drysdelle v. Aviva General Insurance
Written Submissions by:
For the Applicant: Zoe Meditskos, Paralegal
For the Respondent: Anthony M Naples, Counsel
OVERVIEW
1On September 29, 2025, the applicant requested reconsideration of the Tribunal’s decision released July 18, 2025 (“decision”).
2Stemming from an accident on October 10, 2015 and a request for benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”), the parties participated in a written hearing. In the resulting decision, the Tribunal found the applicant was held to the Minor Injury Guideline (“MIG”), and, therefore, it was not necessary to assess the reasonable and necessary nature of his disputed treatment plan for chiropractic services. Further, the Tribunal dismissed the applicant’s claims for an award and interest.
3Of import to this reconsideration, the Tribunal also found the respondent had not made out its preliminary issue, i.e., a request to disallow the applicant from disputing the treatment plan due to a missed insurer’s examination (“IE”). The Tribunal found the respondent’s Notice of Examination did not comply with s. 44(5) of the Schedule, so the applicant was permitted to proceed with his application.
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 relies on Rule 18.2(b) to support his request for reconsideration. He is seeking an order finding he is removed from the MIG, and that he is entitled to the disputed treatment plan, award, and interest. He is also asking the Tribunal to order the respondent to ensure that “any future section 44 examination be rescheduled with proper notice”. In the alternative, the applicant is asking for the matter to be reheard by a different adjudicator.
6The respondent asks the Tribunal to dismiss the reconsideration request.
RESULT
7The applicant’s request for reconsideration is dismissed.
ANALYSIS
8The 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.
9I find the applicant has not established any grounds for reconsideration, pursuant to Rule 18.2(b).
IE Non-Attendance
10The applicant claims the Tribunal did not properly account for the respondent’s s. 44(5) breach in its assessment of his claim. Specifically, the applicant argues that, despite finding the Notice of Examination did not provide sufficient detail about his condition, the Tribunal went on to include “the Applicant’s alleged non-attendance into its analysis at paragraph 9, effectively penalizing him for failing to attend an invalid examination.”
11I do not agree. There is no indication in paragraph 9 of the decision that his non-attendance factored into the assessment of his claim. Rather, this passage involves a discussion about the parties’ actions in and around the time of this missed IE:
The respondent argues that the applicant did not attend an insurer’s examination on August 17, 2023. The applicant submits that he contacted the insurer to reschedule the examination, but did not provide any evidence to support this submission.
12The applicant also states that his non-attendance was relied upon by the Tribunal at paragraph 25, but there is no reference to the non-attendance in this paragraph.
Sections 38 and 44
13The applicant then claims that this s. 44(5) breach should have triggered the “shall pay” remedy under s. 38(11), and yet, according to the applicant, the Tribunal did not address this argument in the decision. I accept that this argument was not expressly addressed in the decision, despite the fact it was articulated in both the applicant’s initial submissions and reply. However, I am not satisfied that this error would likely have impacted the outcome of this part of the decision.
14While it is well-settled that a decision-maker is not expected to address every argument—however minor—the Supreme Court of Canada is clear that tribunals must address every key argument. As noted at paragraph 128 of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, this responsibility to address the parties’ “central arguments” is an important aspect of assessing the reasonableness of a decision. In this matter, I am satisfied that the determination of whether the treatment plan was denied in accordance with s. 38(8) is an accepted means for insured persons to access medical benefits. By not addressing this possible means for accessing payment of the disputed plan, I find the Tribunal erred in its consideration of the applicant’s submissions.
15The respondent mainly challenges this part of the applicant’s reconsideration request by asserting that there is no connection between s. 38(11) and s. 44(5). The respondent cites case law from the Tribunal to support its position, including the recent case of Matadin v. Aviva Insurance Company of Canada, 2025 CanLII 99921 (ON LAT) (“Matadin”).
16I agree with the respondent’s position, and, for this reason, I conclude that it is unlikely that fixing this error would have impacted the outcome of the decision. The plain language of s. 38 and s. 44(5) shows there is no connection between these provisions. For instance, at both the beginning and the end of s. 38(11), the wording links the availability of the “shall pay” remedy to a notice provided under s. 38(8), not s. 44(5) (emphasis added):
If the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:
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).
17There is also no mention of s. 38 in s. 44 of the Schedule.
18Further, while Tribunal case law is not binding, the reasons provided in Matadin are persuasive. By providing a detailed assessment of the relevant statutory language, the adjudicator lays out a compelling account of how these provisions function as independent parts of the Schedule.
19In his reply, the applicant adds that “controlling Tribunal authority and the plain language of s. 38(11)” support his position. Once again, I am not satisfied that the language of s. 38(11) supports this proposed interpretation.
20Taken together, though I accept that the Tribunal erred by not explicitly addressing this part of the applicant’s argument, I find correcting this error would not have likely affected the outcome. While a breach of s. 38(8) may trigger payment of a treatment plan under s. 38(11), there is no connection between s. 38(8) and s. 44(5). Therefore, even if this argument was explored in the decision, I am satisfied that the Tribunal would likely not have found the applicant is entitled to payment of the chiropractic services treatment plan.
Chronic Pain and the MIG
21The applicant challenges the Tribunal’s MIG finding, claiming it did not properly account for the medical evidence at hand. Further, he argues the decision was not rendered in accordance with the Schedule’s consumer protection mandate, and that the Tribunal erred in its causation analysis at paragraph 22. Finally, the applicant alleges the Tribunal improperly preferred the evidence of the respondent’s IE assessor over that of his treating practitioners.
22The reconsideration process is not a venue for asking the Tribunal to re-weigh evidence and arguments considered at first instance. Though a party may disagree with the outcome, disagreement alone will not trigger a reconsideration under Rule 18.2(b). For this part of the reconsideration request, the applicant is largely asking the Tribunal to reach a different assessment of the evidence he presented to support his claim of chronic pain.
23Found at paragraphs 19 – 34 of the decision, the Tribunal assessed the applicant’s evidence as it related to chronic pain. In the end, the Tribunal found, at paragraph 33, that there was an “insufficient basis for a finding that the applicant has a functional impairment as a result of his accident-related pain.”
24The applicant does not direct my attention to any alleged errors in this assessment of the evidence, but rather he claims the Tribunal’s conclusion about chronic pain “overlooks substantial medical evidence… from the accident in 2015 forward.” I do not agree. The Tribunal conducted a comprehensive review of the applicant’s medical records, and it provided a detailed explanation for its conclusion.
25Additionally, the applicant has not demonstrated how the Tribunal failed to uphold the Schedule’s consumer protection mandate, nor has he shown how the Tribunal committed a legal error in the causation analysis it conducted at paragraph 22. Specifically, on this latter point, the Tribunal assessed the findings from imaging taken shortly after the accident at paragraph 22:
The applicant was sent for X-ray imaging on October 15, 2015, five days after the accident. The imaging revealed normal studies of his thoracic and lumbar spine and mild degenerative changes to his cervical spine and right hand, with “no acute abnormalities,” which I find is consistent with Dr. Karabatsos’ diagnosis of soft tissue injuries to the applicant’s cervical and lumbar spine as set out in the March 24, 2016 s. 44 report.
26Though this finding is later referenced in the decision at paragraph 24 (where the Tribunal noted that there were also “two work-related injuries in the three years following the accident”), I see no issues with this part of the Tribunal’s analysis. Even if there is no explicit reference to the “but for” test, it is clear from these paragraphs that the Tribunal was alive to the correct question before it, namely, what was the likely cause of the applicant’s medical condition? This question was answered with extensive references to the evidence, and the Tribunal provided a detailed account of its chain of reasoning. I see no error in this approach.
27Finally, I do not accept the applicant’s submission that the Tribunal placed “disproportionate weight” on the respondent’s IE evidence over that of his treating practitioners. Once again, the Tribunal engaged in a detailed analysis of the evidence, and it was entitled to render assessments of this evidence as it saw fit. Disagreement alone is not sufficient to establish a ground for reconsideration under Rule 18.2(b).
Psychological Impairments and the MIG
28In a similar vein, the applicant argues that the Tribunal did not consider psychological impairments as “an independent basis for MIG removal.” Specifically, the applicant submits that there was evidence of psychological sequelae that should have been assessed as a separate ground for removing him from the MIG.
29While I accept that psychological impairments may be a basis for removing an insured person from the MIG, there is no indication in the applicant’s written hearing submissions that he presented this argument to the Tribunal. Rather, the sole basis he presented for removal from the MIG was chronic pain.
30Parties are expected to put their best foot forward during the hearing. In this case, I find the applicant did not present this argument about psychological impairments during the hearing, so it is not appropriate to now consider this new position on reconsideration.
Duty of Good Faith
31The applicant contends that the Tribunal erred by not assessing his claim that the respondent acted in bad faith, namely, his concerns about its process for setting up IEs. The applicant also takes issue with what he sees as a refusal on the part of the respondent to reschedule the IE for his chiropractic services treatment plan.
32The applicant has not established an error regarding the Tribunal’s decision not to make a finding about the respondent’s alleged bad faith. Section 10 of O. Reg. 664 allows the Tribunal to issue awards where an insurer is found to have unreasonably withheld or delayed payment of a benefit. This is the primary remedy available to insured persons if they take issue with an insurer’s conduct. Therefore, as there was no payment found owing to the applicant, the Tribunal correctly dismissed the award claim at paragraph 37: “As the applicant has not established that any payments were withheld or delayed, the applicant is not entitled to an award.”
Standard of Proof
33Finally, the applicant alleges that the Tribunal used an elevated standard of proof, as it required him to “prove” that he should be removed from the MIG. According to the applicant, this need for “near-certainty” is a much higher standard of proof than “whether it is more likely than not, on a balance of probabilities, that the Applicant suffers from impairments outside the MIG.”
34I find the applicant has not established this ground for reconsideration. When summarizing its findings about chronic pain at paragraph 34, the Tribunal stated: “…I find that the applicant has not met his onus to prove on a balance of probabilities that he suffers from chronic pain with functional impairment.”
35Taken together, the applicant has not established any grounds for reconsideration, pursuant to Rule 18.2(b).
CONCLUSION & ORDER
36The applicant’s request for reconsideration is dismissed.
Craig Mazerolle
Vice-Chair
Released: November 28, 2025