Murray v. Aviva General Insurance Company, 2026 CanLII 56637

RECONSIDERATION DECISION

Before: Craig Mazerolle, Vice-Chair

Licence Appeal Tribunal File Number: 24-001920/AABS

Case Name: Natalie Murray v. Aviva General Insurance Company

Written Submissions by:

For the Applicant: Zoe Meditskos, Paralegal

For the Respondent: Geoffrey Keating, Counsel

OVERVIEW

1On March 27, 2026, the applicant requested reconsideration of the Tribunal’s decision released on March 9, 2026 (“decision”).

2Stemming from an accident on October 26, 2021 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 remained within the Minor Injury Guideline (“MIG”), and, accordingly, there was no need to assess the reasonable and necessary nature of the disputed treatment plans. It also denied an OCF-6 for massage services, as well as the applicant’s requests for an award and interest.

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 her request. She asks the Tribunal to either grant the issues in dispute, or, in the alternative, to set this matter down for a rehearing.

5The respondent argues the applicant has not met any criteria under Rule 18.2.

RESULT

6The applicant’s request for reconsideration is dismissed.

ANALYSIS

7The 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.

8The applicant raises several alleged errors with the decision. I will address them in turn.

Test for Causation

9First, the applicant claims the Tribunal misapplied the test for causation by relying “on references to prior low back complaints, degenerative findings, and post-partum findings to conclude that the Applicant has not established accident-related chronic pain”. I do not accept this ground for reconsideration.

10The Tribunal addressed the applicant’s claim of chronic pain at paragraphs 8 – 19 of the decision. In particular, at paragraphs 14 – 16, the Tribunal explained why these pre-accident complaints impacted its assessment of the applicant’s claim of chronic pain:

The evidence before me does not support the applicant’s submissions. First, while the applicant submits that she did not experience low back pain prior to the accident, her family doctor noted low back pain in July of 2017, reported as being the result of her work. Dr. Mazaheri notes indicate that weight control, proper posture and frequent exercise were discussed with the applicant at this appointment. In November of 2018, Dr. Mazaheri’s notes reference the applicant’s history of low back pain and musculoskeletal pain and recommend medication and physiotherapy. This evidence is contrary to the applicant’s initial submission that she did not suffer previous low back pain prior to the motor vehicle accident.

I also note that Dr. Mazaheri’s references to chronic pain in his clinical notes do not link this pain to the motor vehicle accident. Dr. Mazaheri’s notes refer to chronic pain pre-dating the accident, the motor vehicle accident, pain due to prolonged standing and working two jobs and post-partum pain.

I also place very little weight on Dr. Harris’ conclusion that the applicant suffers accident-related chronic low back pain. Dr. Harris’ conclusion was reached without reviewing the medication documentation of the applicant’s history and was based on the applicant’s self-report of a history of low back pain since the accident. Dr. Harris did not have the benefit of the applicant’s medical records evidencing chronic back pre-dating the accident. Based on the totally [sic] of the evidence, I find that the applicant has not established on a balance of probabilities that she suffers from accident-related chronic pain.

11Not only were the applicant’s pre-accident complaints only one part of the Tribunal’s larger analytical framework (e.g., there was a later discussion about functional limitations), but this submission appears to be a disagreement with the weighing of the evidence. The Tribunal considered the parties’ evidence and arguments about chronic pain, and it determined that, on a balance of probabilities, the applicant did not establish a causal link between her pain and the accident. As noted above, the reconsideration process is not a venue for asking the Tribunal to re-weigh evidence that was considered at first instance.

12In a similar vein, the applicant claims this conclusion overlooks the possibility that there may be several different causes for an impairment, such that the “presence of pre-existing conditions does not negate causation where the accident remains a contributing factor”. I agree, but the applicant has not shown where this alleged legal error took place in the decision. The Tribunal turned its mind to relevant evidence, and it reached a different conclusion than the one put forward by the applicant.

13I also do not accept the argument that, since there was no opinion connecting the pre-accident complaints to her post-accident pain, the Tribunal made an unsupported finding—an alleged contravention of the guidance from Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”). The Tribunal did not draw a definitive link between these two conditions, but it instead concluded that these pre-accident findings cast doubt on the claim of accident-related chronic pain.

Report from Dr. Meera Harris and Functional Limitations

14Second, the applicant argues the Tribunal erred in its understanding of the report from Dr. Meera Harris, chronic pain expert. According to the applicant, the Tribunal overlooked key aspects of this report, all the while discounting the value of this expert’s opinion based on legally impermissible grounds.

15The Tribunal discussed this report at paragraphs 11 and 16 of the decision. Paragraph 16 is already quoted above, but I will reproduce both paragraphs here for ease of reference:

The applicant was also assessed by Dr. Meera Harris, physician, at Releva Chronic Pain Centre, on April 18, 2023. In Dr. Harris’ report, the onset of low back pain was indicated a post-vehicle collision, as reported by the applicant. Dr. Harris performed a physical examination and interviewed the applicant, concluding with an “impression” of lumbar muscular strain and chronic mechanical low back pain. Dr. Harris’ report does not describe what specific findings lead to his diagnoses or make reference to any functional impairments suffered by the applicant.

I also place very little weight on Dr. Harris’ conclusion that the applicant suffers accident-related chronic low back pain. Dr. Harris’ conclusion was reached without reviewing the medication documentation of the applicant’s history and was based on the applicant’s self-report of a history of low back pain since the accident. Dr. Harris did not have the benefit of the applicant’s medical records evidencing chronic back pre-dating the accident. Based on the totally [sic] of the evidence, I find that the applicant has not established on a balance of probabilities that she suffers from accident-related chronic pain.

16Though the applicant may disagree with the considerations that the Tribunal used to reach its conclusions, this submission is another dispute with the Tribunal’s weighing of the evidence. Adjudicators are empowered to consider different aspects of an expert report when assessing its relative weight. Unless a party can show that a factor is legally impermissible or factually incorrect, these evidentiary assessments will not be disrupted.

17I also do not find the applicant has shown that the Tribunal disregarded her experience of pain. By claiming there is “no legal requirement that a medical opinion be based on a complete historical review”, the applicant suggests the Tribunal’s reasoning disregarded the subjective nature of her pain, a contravention of the holding from Fraser v. Persaud, 2023 ONSC 1449. As the quotation above makes clear, I find the Tribunal did not discount the report based on her subjective experience of pain, but it rather took issue with the breadth of this expert’s document review.

18Despite these findings though, I do accept that the applicant has made out an error regarding the Tribunal’s description of the findings contained in the report from Dr. Harris. However, I conclude that she has not met the second part of the Rule 18.2(b) test, i.e., showing this error would likely have impacted the outcome.

19First, I do not find the applicant has established any error with the Tribunal’s finding that there was no indication of what “specific findings lead to [Dr. Harris’s] diagnoses”. This finding is an interpretation of the report, not a statement of fact concerning its contents. Without any indication that this finding was legally impermissible or factually erroneous, the Tribunal is entitled to deference.

20However, I do find the Tribunal erred in its summary of the contents of the report at paragraph 11. At this part of the decision, the Tribunal noted the report “does not… make reference to any functional impairments suffered by the applicant”. I am satisfied that this summary is incorrect, because of the following notation in the report: “Functional Impact: negatively affects functional ability, daily house hold tasks, work function”. Yet, even though the Tribunal overlooked this notation, I am not satisfied that considering this brief section of the report would likely have impacted the outcome.

21The applicant argues the errors detailed in her request for reconsideration are material in nature by stating (at paragraph 41 of her initial submissions):

Had the correct legal principles been applied and the evidence properly considered, the outcome could reasonably have been different, including a finding that the Applicant’s impairment was accident-related and resulted in functional limitation sufficient to remove her from the Minor Injury Guideline.

22I do not agree. The Tribunal addressed the applicant’s alleged functional limitations at paragraphs 17 and 18 (emphasis added):

Regarding functional limitations, the preponderance of evidence also shows that the applicant’s complaints and functional impairments were resolved within three-to-six-months of the accident. The evidence shows that the applicant returned to work approximately two months after the accident. The last time the applicant referenced the motor vehicle accident to Dr. Mazaheri, on March 22, 2022, she reported that felt better, had less low back pain and concurrently, was pregnant. The next time the applicant complained of pain, in August 2022, there was no reference to the accident and a report following MRI of the applicant’s lumbar spine in November 2022 listed a clinical indication of post partum low back pain on the right.

The evidence and submissions do not establish that the applicant suffers functional impairments as a result of chronic pain. The applicant’s submissions, supported by the March 2023 note from Releva, do not provide any insight into the level of impairment that the applicant suffers as a result of the chronic pain. The applicant’s submissions are only definitive on the fact that the applicant is not prevented from performing her daily activities. Without specific submissions and evidence describing the applicant’s level of functional impairment, the applicant has not established that she suffers chronic pain with a functional impairment warranting removal from the MIG.

23Considering the Tribunal’s concerns about the lack of specificity in the applicant’s evidence, it is unlikely that the minimal details provided in the report from Dr. Harris would have affected this analysis. Put another way, it is unlikely that a sparse reference about “daily house hold tasks, work function” would likely have impacted the Tribunal’s findings about functional impairments and chronic pain.

24Relatedly, the applicant challenges the Tribunal’s legal standard used to assess her functional limitations. Specifically, the applicant submits that, for a claim of chronic pain, the Tribunal does not require a “detailed quantification or a particular level of severity”. Instead, it is sufficient to show that an applicant’s condition “results in functional limitation”.

25I see no issue with the approach taken by the Tribunal to assess whether the applicant had established accident-related functional impairments. The Tribunal considered the evidence and positions put forward by the parties, and it found the applicant’s case was lacking. This assessment was done based on a review of the available evidence. The process for reaching this conclusion was also explained through comprehensive reasons.

26I further note that the applicant did not submit any legal authorities to support this interpretation of chronic pain, aside from a general reference to “the Schedule or governing jurisprudence”.

27The applicant does cite Brak v. Walsh, 2008 ONCA 221, to challenge the Tribunal’s reliance on her “return to work as a basis to discount impairment”. Not only does this argument run counter to her position that the Tribunal should not have conducted an in-depth assessment of the severity of her functional limits, but I find this reading of the decision is overly narrow. As the quotation above demonstrates, the Tribunal’s assessment of her functional limitations encompassed more than just her ability to work.

Sufficiency of Reasons

28Finally, the applicant claims the Tribunal did not provide “adequate reasons for key findings”, in particular, it did not explain “why objective clinical findings… were insufficient to support the diagnosis, nor why explicit evidence of functional impairment was rejected.” Overall, she argues the Tribunal’s decision does not meet the standard for sufficiency of reasons as set out in Vavilov.

29Decision-makers are not expected to address every piece of evidence, nor are they required to grapple with every argument made by the parties. To meet the standard set out by Vavilov, a decision-maker’s reasons must show they explicitly turned their mind to the key aspects of the parties’ cases. This chain of reasoning must also provide a clear and intelligible roadmap that shows how the evidence and arguments rationally led to the decision-maker’s conclusions.

30In the present matter, I am not satisfied that the applicant has shown how the Tribunal’s reasons failed to meet this standard. As detailed above, the applicant’s case was addressed in a comprehensive and clear manner, and the reasons for why the Tribunal reached its conclusions about the application are readily apparent.

31Taken together, I find the applicant has not established any error that meets the standard of Rule 18.2(b).

CONCLUSION & ORDER

32The applicant’s request for reconsideration is dismissed.

Craig Mazerolle

Vice-Chair