Genua v. Aviva Insurance Company of Canada
RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 24-005954/AABS
Case Name: Mario Genua v. Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant: Joshua Gautreau, Counsel
For the Respondent: Sophia Chaudri, Counsel
OVERVIEW
1On January 20, 2026, the applicant requested reconsideration of the Tribunal’s decision released December 30, 2025 (“decision”).
2Stemming from an accident on August 15, 2018, and a request for benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”), the parties participated in a written hearing. In the decision, the Tribunal found the applicant was only entitled to one of the six treatment plans in dispute, i.e., the outstanding amount of $637.07, plus interest, from a plan for psychological treatment, dated August 26, 2022. This finding was based on the Tribunal’s determination that the respondent breached s. 38(8) of the Schedule in its denial of this plan.
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.
4Though he only checked off Rule 18.2(b) on his Request for Reconsideration form, the applicant included an argument about procedural fairness in his supporting submissions. As such, I have considered both Rule 18.2(a) and Rule 18.2(b) in this reconsideration decision.
5The applicant is asking the Tribunal to find he is entitled to the denied treatment plans, plus interest.
6The respondent asks the Tribunal to dismiss the applicant’s request for reconsideration.
RESULT
7The applicant’s request for reconsideration is dismissed.
ANALYSIS
8The test for reconsideration under Rule 18.2 involves a high threshold, and the requesting party must show how or why the decision falls into one of the categories in Rule 18.2. 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.
Rule 18.2(b) – Errors of Fact or Law
9The applicant raises several alleged errors with the decision:
a. The Tribunal’s interpretation of the Professional Services Guideline, Superintendent’s Guideline No. 03/14 (“PSG”) is incorrect.
b. The Tribunal incorrectly found he was barred by the limitations period under s. 56 of the Schedule from proceeding with his claims for the chiropractic services treatment plan (dated July 31, 2020) and the treatment plan for psychological treatment (dated November 11, 2021).
c. The Tribunal incorrectly stated that the applicant “did not provide any reason why a Psychotherapist should be paid at the same rate as a Psychologist”.
d. The Tribunal overlooked evidence in its denial of the treatment plan for psychological treatment (dated December 28, 2022), including evidence from Dr. Peter Waxer, psychologist, and Dr. Marco Chiodo, psychologist.
e. The Tribunal incorrectly found the respondent’s denial letter (dated January 25, 2023) is compliant with s. 38(8) of the Schedule, namely:
i. The respondent’s denial letter relied on an opinion from its own assessor, Dr. Chiodo, that supported the treatment regime from the applicant’s psychologist, Dr. Waxer; and
ii. The denial letter overlooked the well-established principle that temporary pain relief is a valid treatment goal.
10Starting with the applicant’s concerns about the interpretation of the PSG, the applicant takes issue with the following words from paragraph 10 of the decision (emphasis added): “While I accept that Psychotherapists are a regulated profession in the Province, I do not accept that the PSG provides clear guidance on the issue of Psychotherapists.” According to the applicant, this comment is contradictory to a finding the Tribunal later made about several of the respondent’s denial letters at paragraph 15 (emphasis added):
I have reviewed the Explanation of Benefits letters dated June 13, 2022 and November 13, 2022. I find the letter of June 13, 2022 compliant with s. 38(8) of the Schedule. The respondent clearly identifies the treatment plan in question, and outlines what it will pay for, versus what it will not agree to pay for. In this case the respondent clearly agrees to pay a Psychologist $149.61, and to pay Psychotherapists $58.19 per hour. I find this explanation is compliant with s. 38(8) of the Schedule, as it offers a clear reason for what the insurer agrees to pay for and does not agree to pay for.
11I do not find these comments are contradictory. The initial use of the term “clear guidance” refers to how psychotherapists are not listed as one of the regulated professions within the PSG. The term “clear reason” is then used in paragraph 15 to explain why the Tribunal found the respondent had met its obligations under s. 38(8). These are two different, yet permissible uses of the word “clear”, and the applicant has not established why they amount to an error under Rule 18.2(b).
12The applicant then challenges the Tribunal’s findings regarding the chiropractic services treatment plan (dated July 31, 2020) and the treatment plan for psychological treatment (dated November 11, 2021). The applicant was barred from disputing both plans due to breaches of s. 56. He challenges this finding as follows (at paragraph 16 of the applicant’s reconsideration submissions):
In paragraph 22 of the Decision, [the Tribunal] incorrectly states that the applicant did not make “a submission as to why the denial letters are non-compliant, or what details have been omitted or should have been included” as the relevant submissions regarding these denial letters were made under disputed issues 1 and 4 in paragraphs 19 and 30 of the Submissions of the Applicant, and as such the limitation period issue is mute [sic]. The Applicant submits that these are “reasonable grounds” for granting an extension of the limitation period. Given same, the Applicant does not need to further engage in conducting a holistic analysis of the [Manuel v. Registrar, 2012 ONSC 1492 (“Manuel”)] factors as per paragraphs 24 to 26 of the Decision.
13This argument is a bit unclear, but the applicant appears to take issue with the following comments made at paragraph 26 of the decision:
In the absence of submissions providing reasonable grounds why the limitation period should be extended or engaging with the Manuel factors above, I agree with the respondent that this is not appropriate situation to exercise my discretion to extend the limitation period.
14The applicant has not challenged these findings, aside from claiming that this issue is moot and that there was no “need to further engage in conducting a holistic analysis of the Manuel factors”. Though the applicant may disagree with the Tribunal’s s. 56 findings, these alleged errors are best understood as a disagreement with the weighing of the evidence. Unless a requesting party can show that an aspect of the Tribunal’s evidentiary analysis is incorrect or legally impermissible, these assessments will not be disrupted on reconsideration. The applicant has not met his onus for this ground, pursuant to Rule 18.2(b).
15Next, turning to the applicant’s concerns about the Tribunal’s handling of his arguments regarding the hourly rate for a psychotherapist, the focus of this submission is on paragraph 11 of the decision (emphasis added):
The applicant did not provide any submissions as to the nature of the work performed by the Psychotherapists in question, their credentials, or whether they were under close supervision by a Psychologist. I further find that the applicant has not provided a reason why a Psychotherapist should be paid at the same rate as a Psychologist.
16The applicant challenges this finding about a lack of submissions by pointing to the OCF-18 (dated November 11, 2021), which he claims is “evidence to substantiate the nature of work performed by a regulated psychotherapist, Vera Sukhoveyeva, who worked under the supervision of a regulated psychologist, [Dr.] Peter Waxer.”
17I do not see how citing the relationship between these two professionals would have likely impacted the outcome of the decision. The Tribunal determined that the applicant was barred from pursuing this issue based on his breach of s. 56. He has not established any grounds for reconsideration based on s. 56, so I further find the applicant has not established any error that would likely impact the outcome of this treatment plan. The applicant has not triggered Rule 18.2(b).
18Moving to the treatment plan for psychological treatment (dated December 28, 2022), the applicant claims the Tribunal overlooked medical evidence from Drs. Waxer and Chiodo when it denied this plan. Specifically, the applicant takes issue with the Tribunal’s statement at paragraph 33 of the decision:
Although the onus is on the applicant to establish that a treatment plan is reasonable and necessary, I note that the applicant has chosen not to submit evidence to indicate whether further treatment is necessary.
19I have two issues with this argument. First, as is apparent from paragraphs 31, 32, 35, and 36 of the decision, the Tribunal did conduct a comprehensive assessment of Dr. Chiodo’s evidence as it related to this plan. In fact, at paragraph 36, the Tribunal recognized that the applicant cited Dr. Chiodo’s evidence, but, ultimately, this assessor did not agree with the necessity of ongoing treatment:
… Both parties are relying on the expert opinion of Dr. Chiodo. Dr. Chiodo has identified a psychological condition, but importantly, has also stated that the applicant has achieved maximal medical recovery. As a Psychologist, Dr. Chiodo is welcome to provide expert medical opinion on topics such as treatments, and when a patient has achieved maximal recovery.
20The applicant may disagree with the Tribunal’s weighing of this expert evidence, but, again, disagreement alone will not trigger Rule 18.2(b).
21Second, though the applicant correctly notes that Dr. Waxer’s assessment report and progress report (dated January 24, 2019 and June 14, 2021, respectively) were cited in his written submissions, yet not mentioned in this part of the decision, I do not find this absence is an error that triggers Rule 18.2(b). The applicant’s references to these reports in his written hearing submissions were all focused on his psychological condition, not the need for additional treatment. For instance, when describing the results of the June 2021 progress report, there is no mention of psychological treatment (at paragraph 17 of the applicant’s initial written hearing submissions):
On June 14, 2021, a Psychological Progress Report indicated that [the applicant] continued to experience symptoms of depressed mood, irritability, anxiety, and embarrassment in reaction to his diminished circumstances. He ruminated over his accident-related physical limitations and their impact on his professional and personal life. He continued to experience difficulties with his emotional regulation. His low stress resilience and low frustration tolerance continued to impact his mental health and slowed down his physical recovery. He had severe anxiety and moderate depression.
22I further note that, even if these references were implicit arguments in support of ongoing treatment, I do not see how correcting this error would likely have impacted the outcome. The treatment plan at issue is dated December 28, 2022, so it is difficult to see how reports from January 2019 and June 2021 would likely have altered the Tribunal’s understanding of the need for treatment in late 2022.
23For this same plan, the applicant also takes issue with the Tribunal’s finding that the respondent’s January 25, 2023 denial was compliant with s. 38(8). The applicant challenges this denial by claiming that, even though Dr. Chiodo effectively “defers to Dr. Waxer’s treatment sessions”, the respondent still believed its assessor’s opinion could form the basis for a compliant denial.
24At paragraphs 38 – 42 of the decision, the Tribunal provided its reasons for finding the respondent’s January 25, 2023 denial did not breach s. 38(8). The applicant may disagree with this finding, but, once again, disagreement alone will not trigger Rule 18.2(b).
25The applicant also challenges this s. 38(8) finding by citing a series of cases where temporary pain relief was found to be a valid treatment goal. I do not accept this ground for reconsideration. The applicant may claim that the Tribunal’s ruling runs counter to established case law, but this submission is, in effect, a request to re-weigh the evidence. As noted above, the reconsideration process is not a venue for asking the Tribunal to re-weigh evidence that was considered at first instance. I see no error in the Tribunal’s s. 38(8) analysis.
26Taken together, I find the applicant has not established an error that meets the standard of Rule 18.2(b).
27Finally, the applicant added at the conclusion of this part of his reconsideration submissions that the one treatment plan the Tribunal found he was entitled to should be deemed incurred. I note that there were references to the deemed incurred provision in the applicant’s initial written submissions, yet there is no indication that the Tribunal turned its mind to the use of s. 3(8) in the decision. Despite this oversight, I do not see how remedying this error would likely lead to a different outcome.
28To trigger s. 3(8), an applicant has the onus to show that “an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense”. The applicant’s initial written submissions provided little detail about why this provision should be engaged, as he simply quoted the language of s. 3(8) and then stated that certain benefits were “unreasonably withheld”. Even if the Tribunal had explicitly turned its mind to s. 3(8), I do not see how the outcome would have likely been different, namely, the applicant would have likely been found to have not met his onus to engage this remedial provision.
Rule 18.2(a) – Material Breach of Procedural Fairness
29Turning to Rule 18.2(a), the applicant claims the Tribunal displayed a reasonable apprehension of bias in rendering the decision. These allegations are summarized at paragraph 29 of his reconsideration submissions:
The Tribunal’s conclusions are significant with respect to a reasonable apprehension of bias as it overlooked and failed to consider several parts of the Applicant’s original submissions with respect to both arguments and evidence and misinterpreted the PSG by making contradictory conclusion as submitted above.
30The test for a reasonable apprehension of bias is set out by the Supreme Court of Canada in the oft-cited case of Committee for Justice and Liberty v. Canada, 1976 CanLII 2 (SCC), at p. 394:
[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
31In Wewaykum Indian Band v. Canada, 2003 S.C.R. 45, at paragraph 59, the Supreme Court confirmed the existence of a strong presumption of judicial and quasi-judicial impartiality. To overcome this presumption, a party alleging actual bias or a reasonable apprehension of bias must establish the presence of serious and substantial grounds.
32I do not find the applicant has established the presence of “serious and substantial grounds” to support a finding of bias. Rather, the applicant’s submissions are a recitation of his positions above regarding Rule 18.2(b). Though he may disagree with the outcome of the decision, dissatisfaction with a decision-maker’s ruling will rarely, if ever, be sufficient to ground a claim of bias. Especially in light of the strong presumption of quasi-judicial impartiality, the applicant has not met the elevated standard necessary to show a reasonable apprehension of bias in this case.
33Taken together, I find the applicant has not established a material breach of procedural fairness, pursuant to Rule 18.2(a).
CONCLUSION & ORDER
34The applicant’s request for reconsideration is dismissed.
Craig Mazerolle Vice-Chair
Released: March 27, 2026