RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 23-001106/AABS
Case Name: Mark Khnano v. Unifund Assurance Company
Written Submissions by:
For the Applicant: Maka Metreveli, Paralegal
For the Respondent: Michael Courneyea, Counsel
OVERVIEW
1On May 2, 2025, the applicant requested reconsideration of the Tribunal’s decision released April 11, 2025 (“decision”).
2Stemming from an accident on November 12, 2020 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 resulting decision, the adjudicator found the applicant remained within the Minor Injury Guideline (“MIG”). As such, she determined that it was not necessary to consider whether the eight treatment plans in dispute are reasonable and necessary. No interest was payable.
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 relies on Rule 18.2(b) to support his request for reconsideration. He is seeking an order to “reverse” the decision about the MIG and the treatment plans. Or, in the alternative, he is seeking a new written hearing.
5The respondent is asking to have the request dismissed.
RESULT
6The applicant’s request for reconsideration is granted, in part.
7The decision is confirmed, pursuant to Rule 18.4.
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.
Rule 18.2(b) – Errors of Law or Fact
9The applicant’s arguments under Rule 18.2(b) can be divided into two categories: i.e., arguments about the adjudicator’s interpretation of the medical evidence and those about s. 38(8) of the Schedule. I will address these arguments in turn.
Interpretation of the Medical Evidence
10I find the applicant has not established that the adjudicator interpreted the medical evidence in a manner that triggers Rule 18.2(b).
11The applicant raises multiple alleged errors with the adjudicator’s interpretation of the medical evidence, including:
a. The adjudicator acknowledged the recommendations made by Dr. Mansour Alvi for physical therapy, but then found the physiotherapy services treatment plans were not payable;
b. The adjudicator’s assessment of s. 18(2) of the Schedule;
c. The adjudicator’s decision not to comment on the respondent’s choice “not to have arranged for the addendum report by Dr. Alvi to address the MRI findings”; and,
d. The adjudicator’s description of Dr. Grigory Karmy’s evidence and credentials.
12The applicant also highlights an MRI from October 11, 2022 that showed a “small right protrusion”. He cites 16-002126 v. Royal and Sun Alliance Insurance, 2017 CanLII 59509 (ON LAT) (“Royal and Sun Alliance”) in support of this comment.
13First, I do not accept the applicant’s argument concerning the physiotherapy services plans and the recommendations made by Dr. Alvi. Aside from the fact that the reconsideration process is not a venue for re-weighing evidence considered at first instance, the applicant has not shown how the adjudicator’s assessment of this evidence constitutes an error. Further, as the adjudicator concluded that the applicant was held within the MIG, she found there was no need to assess the treatment plans on a reasonable and necessary basis. Therefore, even if he did show that this evidence was handled in an erroneous fashion, the same conclusion would have been reached—no analysis of the treatment plans is needed on a reasonable and necessary basis.
14Second, I find the applicant has not shown how the adjudicator erred in her assessment of s. 18(2) of the Schedule. Section 18(2) states that an insured person will be removed from the MIG if the following requirements are met:
Despite subsection (1), the limit in that subsection does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the [MIG].
15The applicant claims the adjudicator erred by requiring his medical professionals to make specific reference to whether his injuries would prevent him from reaching maximal medical recovery within the MIG. In reviewing the adjudicator’s reasons, I see no error in her s. 18(2) analysis. Section 18(2) requires “compelling evidence” of both a pre-existing condition and the impacts of this condition on the insured person’s recovery. From paragraphs 9 – 16 of the decision, the adjudicator weighed the medical evidence provided by the applicant (including treatment recommendations from Dr. Benjamin), and she concluded that it did not meet the standard of “compelling evidence”. Disagreement alone with the Tribunal’s factual findings is not sufficient to engage Rule 18.2(b).
16Third, I find the applicant has not demonstrated why the adjudicator erred by not commenting on the respondent’s choice “not to have arranged for the addendum report by Dr. Alvi to address the MRI findings”. There is no requirement under the Schedule for an insurer to arrange an insurer’s examination. Rather, s. 44(1) is a permissive provision, with the authority to assess an insured person being at the discretion of the insurer. Considering this discretion, I find the applicant has not shown how the adjudicator erred by not commenting on the lack of an addendum report.
17Next, the applicant argues that the Tribunal erred by stating that Dr. Karmy was a chiropractor and that he had produced a chronic pain assessment. The applicant asserts that Dr. Karmy is a physician, and he had only prepared a treatment plan seeking access to funding for a chronic pain assessment.
18In reviewing paragraph 10 of the decision alongside the OCF-18 for the chronic pain assessment, I accept that the adjudicator incorrectly labelled Dr. Karmy as a chiropractor. I further accept that the applicant did not provide any chronic pain assessment report with his submissions. However, it is not enough to show that there is an error of fact, as Rule 18.2(b) also requires the requesting party to show that “the Tribunal would likely have reached a different result had the error not been made”. There is no compelling explanation provided to show how these factual errors impacted the conclusions reached by the adjudicator, especially as this erroneous statement was made when the adjudicator was listing documents in the applicant’s submissions. There does not appear to have been any reliance on this misstatement in the adjudicator’s analysis.
19Finally, the applicant did not clearly indicate what error he was alleging about the MRI from October 11, 2022. While it appears this argument is related to s. 18(2), I note that the adjudicator recognized that this MRI was produced after the accident. As such, the “small right protrusion” found in this report does not satisfy the test for establishing “a pre-existing medical condition that was documented… before the accident”. Also, aside from the fact that adjudicators are not bound by the decisions of our fellow members, I find Royal and Sun Alliance provides little assistance. Questions of how an adjudicator weighs the medical evidence at hand is a highly fact-specific analysis. As such, showing how a similar piece of evidence was assessed in a different case is of minimal assistance.
Section 38(8)
20I find that the applicant has demonstrated an error that would likely have impacted the results of the decision as it relates to the applicant’s submissions about s. 38(8) of the Schedule, pursuant to Rule 18.2(b).
21The applicant submits that, while he claimed that the denials for two of the eight treatment plans did not comply with s. 38(8), the adjudicator did not mention this argument in the decision. As such, the treatment plans for a psychological assessment and psychological counselling, dated November 26, 2020 and March 29, 2021, respectively, should be approved.
22In reviewing the applicant’s written hearing submissions, I note that there is a clear reference to this argument. However, the adjudicator does not address this submission in the decision. Rather, the analysis about the treatment plans is limited to the following statement at paragraph 34: “As the injuries fall within the MIG, I do not need to consider if the treatment plans proposed are reasonable and necessary.”
23I am satisfied that the adjudicator’s lack of analysis constitutes an error of law, and, as the applicant’s submissions about s. 38(8) have not been assessed by the Tribunal, I further find it would likely mean the Tribunal would have reached a “different result had the error not been made”.
24The respondent contends that the Tribunal is not required to address every argument put forward by the parties, a point established through both Tribunal and Supreme Court of Canada decisions. It also argues that the adjudicator’s “decision not to specifically discuss the alleged non-compliance is likely indicative that she found no merit” to this position. I do not accept these arguments.
25First, while it is well-settled that a decision-maker is not expected to address every argument—however minor and tertiary—the Supreme Court is clear that tribunals must address every key argument from the parties. As noted at paragraph 128 of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”), this responsibility to address all the parties’ “central arguments” is an important aspect of assessing the reasonableness of a decision [emphasis added, citations removed]:
Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis” or to “make an explicit finding on each constituent element, however subordinate, leading to its final conclusion”. To impose such expectations would have a paralyzing effect on the proper functioning of administrative bodies and would needlessly compromise important values such as efficiency and access to justice. However, a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it.
26In this matter, I am satisfied that the determination of whether two treatment plans were denied in accordance with s. 38(8) is not simply another “line of possible analysis”. Rather, when seen in the context of the Schedule and the Tribunal’s past adjudication of this provision, it is an accepted means for insured persons to access medical benefits if—as was the case here—they are held to the MIG. By not addressing this argument, the adjudicator foreclosed the possibility of the applicant accessing funding through this alternate means. I find this was a central argument in his case.
27Second, again relying on Vavilov, I do not accept the respondent’s assertion that the adjudicator’s “decision not to specifically discuss the alleged non-compliance is likely indicative that she found no merit”. A party is not expected to make assumptions about the merit that an adjudicator placed on their central arguments. Rather, a decision-maker has the responsibility to lay out the reasons for why an argument is or is not compelling.
28Expecting the applicant to accept the absence of reasons as an indication that his s. 38(8) argument lacks merit would invert the Tribunal’s responsibility to the public. Adjudicators have a responsibility to demonstrate to parties and the public alike that our delegated authority is being used in an appropriate manner. Ensuring our reasons are transparent, intelligible, and justified is a key means of meeting this promise. Or, as the Supreme Court stated at paragraph 79 of Vavilov [citations removed]:
Reasons explain how and why a decision was made. They help to show affected parties that their arguments have been considered and demonstrate that the decision was made in a fair and lawful manner. Reasons shield against arbitrariness as well as the perception of arbitrariness in the exercise of public power.
Rule 18.4 – Confirming the Decision
29Having found the applicant established a ground for reconsideration, I must now determine the appropriate remedy under Rule 18.4. I find it is appropriate for me to conduct the s. 38(8) analysis of the two disputed denials, as I have the parties’ original submissions, and this issue is a discrete matter that can be addressed effectively within this present reconsideration process.
30Once again, the applicant challenges the respondent’s compliance with s. 38(8) as it relates to the denials of two disputed treatment plans, i.e., the treatment plans for a psychological assessment and psychological counselling, dated November 26, 2020 and March 29, 2021. The applicant contends that these denials fail to meet the standard under s. 38(8) in two ways. First, since the applicant is “an unsophisticated person” who is not aware of the MIG, simply referencing this Guideline is not compliant with s. 38(8). Second, the applicant contests the respondent’s reliance on “insufficient compelling medical evidence” to support its denials, because this statement does not take into account her evidence from a psychologist. As such, there are insufficient “medical and other reasons” to explain the denials. The applicant relies on 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) (“Peel Mutual”) to support his position.
31The respondent claims that it did not receive certain medical evidence until “in or about June 2022.” As such, the respondent submits it was accurate to say that there was no medical evidence available.
32Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they do not comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 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. Section 38(11) provides remedies if a breach of s. 38(8) is established.
33In this oft-quoted decision, Peel Mutual provides helpful guidance for how to apply s. 38(8) of the Schedule. Specifically, the former Executive Chair describes the purpose and standard for this provision at paragraph 21:
The ultimate purpose underlying s. 38(8) is to require an insurer to respond to a treatment plan not only quickly but also reasonably, in a manner that respects an insured’s ability, when entitled, to access timely treatment. To that end, an insurer’s “medical reasons” for denying a plan should engage the specific details about the insured’s condition forming the basis for the insurer’s decision. They should also be adequate enough to allow an unsophisticated person to understand them and make an informed decision in response. Those entitled to accident benefits should not have to wonder why they are denied treatment. Nor should they have to incur the temporal, emotional, and financial costs associated with engaging the Tribunal in order to obtain the treatment they should have received long before. If s. 38(8) is to achieve its purpose, it must require insurers to accompany any denial of benefits with meaningful and accurate reasons based on an insured’s medical condition as described in the file at hand.
34With this guidance in mind, I find both denials comply with s. 38(8).
35Starting with the psychological assessment, this treatment plan was denied by the respondent through a letter dated December 10, 2020. In this correspondence, the respondent identified the treatment plan, and it clearly stated that it found the “the treatment claimed is not reasonable or necessary”. Specifically, the letter states:
We have reviewed and compared all medical documentation that has been provided, and compared it further to the Minor Injury Guideline (MIG), and determined that there is insufficient compelling evidence of a documented pre-existing injury or condition and insufficient medical documentation to persuade us that your accident-related injuries fall outside of the Minor Injury Definition.
We believe the Minor Injury Guideline applies and the treatment claimed is not reasonable or necessary, as it does not conform to the Minor Injury Guideline treatment protocols. Coverage for a minor injury is capped at $3,500 for all treatment and assessments.
36Then, after providing the definition for a “minor injury”, as well as some details about the “treatment protocols” available under the MIG, the respondent concluded the letter by stating:
If you and your treatment provider believe your injuries do not fall within the definition of a Minor Injury, we would ask that you provide us with compelling evidence, including documentation, but not limited to clinical notes and records / hospital records showing any documented pre-existing condition or diagnosis.
37Though less detail is provided about the MIG and the definition of a “minor injury” in this later correspondence, similar reasons were provided in the denial letter for the psychological counselling treatment plan (dated March 31, 2021).
38In light of the guidance from Peel Mutual, I find both letters comply with s. 38(8), as they provide “medical and other reasons” that a layperson can understand. Specifically, the respondent points to the medical evidence (or lack thereof) to indicate that it believes the applicant’s injuries are “minor”, and can, therefore, be treated within the MIG. It also explains the applicability of this treatment regime to the applicant’s case, particularly in the December 2020 letter. I also note that there are suggestions of what the applicant can do to try and remedy the respondent’s concerns, namely, he can work with his treatment provider to submit further medical documentation to demonstrate the extent of his injuries. Taken together, I find the level of detail in these denial letters meets the standard under s. 38(8) for “medical and other reasons”.
39Turning to the applicant’s specific arguments, while the applicant may not be sophisticated in the intricacies of the accident benefits regime, I find the denials both adequately explain the application of the MIG to his case. Second, even though the applicant contends that certain psychological evidence should have been referenced in the letters, I find that this argument is not properly captured within the scope of s. 38(8). The parties may argue about the substantive merits of the medical evidence (something they did in the written hearing), but the standard under s. 38(8) only requires the respondent to indicate the reasons why it is denying the plans. Put another way, these reasons do not need to be a “correct” assessment of the evidence. Rather, they must allow the applicant to understand the respondent’s perspective on the disputed benefits. I find that the respondent has provided this perspective, even if the applicant disagrees with its assessment of the medical evidence.
40Taken together, I find the applicant has not established a breach of s. 38(8) for either treatment plan. As such, there are no payments owing under s. 38(11). Accordingly, the decision is confirmed, pursuant to Rule 18.4.
CONCLUSION & ORDER
41The applicant’s request for reconsideration is granted, in part.
42The decision is confirmed, pursuant to Rule 18.4.
Craig Mazerolle
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: July 24, 2025