RECONSIDERATION DECISION
Before:
Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number:
25-001867/AABS
Case Name:
Joseph Lera v. Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant:
Daniel D'Urzo, Counsel
For the Respondent:
Kevin H. Griffiths, Counsel
OVERVIEW
1On February 24, 2026, the respondent requested reconsideration of the Tribunal’s decision released February 5, 2026 (“decision”).
2Stemming from an accident on March 6, 2023 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 videoconference hearing. In the decision, the Tribunal found the applicant was entitled to one of the four treatment plans in dispute, i.e., a treatment plan for physiotherapy services, plus interest. The Tribunal denied the applicant’s request for a non-earner benefit.
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 respondent relies on Rule 18.2(a) and Rule 18.2(b) to support its request for reconsideration. It is asking the Tribunal to reconsider its decision to grant entitlement to the physiotherapy services treatment plan.
5The applicant asks the Tribunal to dismiss the request for reconsideration.
RESULT
6The respondent’s request for reconsideration is granted.
7Pursuant to Rule 18.4, the parties shall participate in a written rehearing before a different adjudicator. The only issues in dispute in the rehearing will be entitlement to the physiotherapy services treatment plan (and the related issue of interest).
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(a) – Material Breach of Procedural Fairness
9The respondent challenges the Tribunal’s finding that the applicant is entitled to the physiotherapy services treatment plan by claiming that it misstated its submissions about this plan. While the Tribunal noted in the decision that the respondent took issue with the applicant’s medical evidence, it claims it rather argued during closing submissions that it was entitled to deny the plan based on s. 38(5) and s. 38(6) of the Schedule. By not addressing its defense against this plan, the respondent submits the Tribunal did not provide sufficient reasons.
10Section 38(5) of the Schedule states that:
An insurer may refuse to accept a treatment and assessment plan if the plan describes goods or services to be received or an assessment or examination to be conducted in respect of any period during which the insured person is entitled to receive goods or services under the Minor Injury Guideline in respect of the impairment.
11Section 38(6) adds that a “refusal to accept a treatment and assessment plan under subsection (5) is final and is not subject to review”.
12The Tribunal addressed the physiotherapy services treatment plan at paragraphs 25 – 29 of the decision. It summarized the respondent’s position at paragraph 28:
The respondent asserts that Dr. Getahun’s report missed key issues including the fact that the applicant had pain before the accident, and the assessor missed the fact that the chronic pain did not affect the applicant’s activities significantly.
13After reviewing the relevant section of the hearing transcript, namely, the respondent’s arguments in closing submissions about this plan, it is clear that this summary is incorrect. The respondent’s defense focused on its position that this plan was submitted during a period when the applicant was entitled to benefits under the MIG. As such, s. 38(5) was not only a barrier to payment, but s. 38(6) now restricts any Tribunal review of this determination.
14Tribunals are not required to address every argument raised by the parties. However, the submissions about s. 38(5) and s. 38(6) were not a minor, tertiary position. They formed the core of the respondent’s defense against this plan. By not expressly addressing this key argument, I find the Tribunal materially breached the respondent’s right to procedural fairness.
15The applicant opposes this position by claiming that the Tribunal provided sufficient reasons to explain why it found this plan was reasonable and necessary. Moreover, since the parties had determined that the applicability of the MIG was no longer an issue in dispute before the Tribunal, the applicant claims:
It would be an absurd result to accept the Respondent’s submissions that the adjudicator ought to make a determination under Section 38 (5) and Section 38 (6) of the SABS to determine whether the MIG applied to the treatment plan in dispute, when the MIG was not an issue for the hearing…
16Aside from my finding that the lack of any express engagement with the respondent’s defense shows there were insufficient reasons, the fact that the MIG is no longer an issue before the Tribunal is irrelevant. As the wording of s. 38(5) and s. 38(6) establishes, it is open to an insurer to refuse to accept a treatment plan during a period when an insured person is “entitled to receive goods or services under the Minor Injury Guideline”. Further, if a refusal is made under this provision, there is no grounds for appeal. Regardless of whether the Tribunal was tasked with assessing the applicability of the MIG or not, the key question the Tribunal had to answer was whether the respondent’s denial was done in accordance with s. 38(5).
17The applicant also argues that the respondent is trying to re-argue its position from the hearing. I do not agree. The respondent is seeking to have its defense of this plan explicitly addressed by the Tribunal.
18Taken together, I find the respondent has established a ground for reconsideration, pursuant to Rule 18.2(a). In light of this conclusion, I further find I do not need to consider the respondent’s other grounds for reconsideration.
Rule 18.4 – Written Rehearing
19Having found the respondent established a ground for reconsideration, I will use my authority under Rule 18.4 to cancel this part of the decision and then order a rehearing focused solely on the applicant’s entitlement to the physiotherapy services treatment plan (and the related request for interest). The respondent has demonstrated that the decision was rendered without any express engagement with its s. 38(5) and s. 38(6) defense, so I am satisfied that the only appropriate remedy is to have the Tribunal render a fresh decision on this issue.
20Due to the limited scope of this rehearing, I am satisfied that it can proceed in writing. The need for an efficient conclusion to this proceeding leans in favour of allowing this remaining issue to be decided in a focused and expeditious manner. I am also satisfied that a single treatment plan can be adequately addressed through written submissions and documentary evidence. Taken together, I see no prejudice facing the parties from ordering a written hearing.
CONCLUSION & ORDER
21The respondent’s request for reconsideration is granted.
22Pursuant to Rule 18.4, the parties shall participate in a written rehearing before a different adjudicator. The only issues in dispute for the rehearing are:
i. Is the applicant entitled to $3,651.22 for physiotherapy services proposed by We Care Rehabilitation Clinic in a treatment plan/OCF-18 (“plan”) submitted March 29, 2023?
ii. Is the applicant entitled to interest on any overdue payment of benefits arising from this treatment plan?
23The parties shall file with the Tribunal and serve their written submissions, evidence, and authorities according to the following timetable:
Submissions:
Due Date:
Page Limit:
Applicant’s submissions, evidence and authorities:
30 calendar days following the release of the reconsideration decision
5 pages
Respondent’s submissions, evidence and authorities:
45 calendar days following the release of the reconsideration decision
5 pages
Applicant’s reply submissions or written notice that no reply submissions will be filed:
50 calendar days following the release of the reconsideration decision
2 pages
24Aside from the hearing transcript, no new evidence (including affidavits) may be relied upon by the parties. Only evidence that was exchanged between the parties in accordance with the deadlines set out in the case conference report and order (released June 16, 2025) may be relied upon by the parties in their written submissions for the rehearing.
25All submissions filed with the Tribunal must be double-spaced, 12-point, Arial or Times New Roman font with 1.5-inch margins and be indexed, bookmarked/tabbed and consecutively paragraph and page numbered. Submissions must make specific reference to the evidence and authorities by tab and page number.
26The page limits are exclusive of evidence and authorities. The rehearing adjudicator has the discretion to determine whether to consider submissions that do not comply with the filing requirements.
27If a party intends to rely upon the hearing transcript from the videoconference hearing as part of the rehearing, it must provide the Tribunal with a full copy of the entire hearing transcript with its submissions.
28Unless specifically modified in this reconsideration decision, all prior orders of the Tribunal remain in effect.
29I am not seized.
Craig Mazerolle
Vice-Chair
Released: May 11, 2026