RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 24-001660/AABS
Case Name: Ali Amouei v. Allstate Insurance Company of Canada
Written Submissions by:
For the Applicant: Andrew Bergel, Counsel
For the Respondent: Duha Sikander, Counsel
OVERVIEW
1On December 5, 2025, the respondent requested reconsideration of the Tribunal’s decision released December 1, 2025 (“decision”).
2Stemming from an accident on October 13, 2022 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 is held to the Minor Injury Guideline (“MIG”). As such, it was not necessary to consider the “reasonable and necessary” nature of the two disputed treatment plans. However, the Tribunal further determined that the applicant was entitled to payment, plus interest, for one of the two plans, pursuant to s. 38(11) of the Schedule.
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 asking the Tribunal to vary the decision to find he is entitled to payment of the denied plan, i.e., the treatment plan for chiropractic services (dated August 4, 2023).
5The respondent asks the Tribunal to dismiss this request.
RESULT
6The applicant’s request for reconsideration is granted.
7Pursuant to Rule 18.4, the decision is varied to find the treatment plan for chiropractic services (dated August 4, 2023) is payable, pursuant to s. 38(11) of the Schedule, for any part of this plan incurred between August 25 and August 29, 2023.
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.
9I find the applicant has established the test for reconsideration under Rule 18.2(b).
10Section 38(8) of the Schedule requires an insurer to “give the insured person a notice” within ten business days after it receives a treatment plan. This notice must state the goods, services, assessments, and/or examinations the insurer agrees to pay for, and which it does not, as well as the “medical reasons and all of the other reasons” why it considered any of the goods and services to not be reasonable and necessary.
11If an insurer does not comply with s. 38(8), s. 38(11) is triggered:
The insurer is prohibited from taking the position that the insured person has an impairment to which the MIG 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).
12During the written hearing, the applicant asked for payment of the two disputed treatment plans based on s. 38. The Tribunal accepted this argument for one of the two plans, but it did not grant this relief for the chiropractic services plan. This analysis is found at paragraphs 23 and 25 of the decision (emphasis added):
The applicant submits that the Chiropractic Plan is payable because the respondent failed to provide a denial within 10 days of its receipt, contrary to the timeline imposed by s. 38(8)… Finally, the applicant asserts that to date, the respondent has not provided proper notice and so must pay the full amount incurred.
The applicant’s submissions as to the relevant dates are unclear and the only date they specifically reference is the date of the Chiropractic Plan. However, for the purposes of s. 38(8) and 38(11) the relevant dates are the date the insurer receives a treatment plan and the date an insurer responds to the treatment plan. The evidence shows that the Chiropractic Plan was submitted to the insurer on the Health Claims for Auto Insurance platform (“HCAI”) on August 9, 2023. The respondent submitted its denial of the Chiropractic Plan on HCAI on August 23, 2023. The time between receipt and response to the Chiropractic Plan was ten business days. The applicant’s submissions do not provide any arguments as to why the August 23, 2023 denial is not a proper notice other than allegedly being delivered late.
13The applicant challenges this reasoning, because he submits that HCAI is not meant to be a delivery service for insurers to send documents to insured persons. Rather, by pointing to entries from the HCAI website, the applicant argues that HCAI “enrolment is clearly for health care businesses or health care providers and insurance companies, not individual insureds”. To support this position, the applicant cites Kemp v. Aviva General Insurance, 2024 CanLII 28837 (ON LAT) (“Kemp”), where the Tribunal found a denial must be given to the insured person themselves, as opposed to posting a denial “to a system that the insured person is not able to directly access”: see paragraph 45 of Kemp.
14By relying on the HCAI denial date to find the respondent complied with s. 38(8), the applicant claims the Tribunal erred in denying payment of the chiropractic services plan. Instead, the applicant claims the proper denial date for the analysis was when his representative received an Explanation for Benefits (“EOB”) denying the plan on August 29, 2023. This denial date is 13 business days after the plan was delivered to the respondent on August 10, 2023 (not the August 9, 2023 submission date used by the Tribunal). The applicant further argues that, since s. 38(11)1 forbids insurers from relying on the MIG (and the MIG was the only reason provided to support this denial), there has never been a compliant denial.
15The respondent argues the applicant’s reconsideration is an improper attempt to have the Tribunal re-litigate arguments it did not accept at first instance. The respondent further submits that the applicant is introducing new arguments on reconsideration. Finally, it points to a fax confirmation (dated August 24, 2023) to challenge the applicant’s timeline, as well as to suggest that the facts in Kemp are significantly different from the matter at hand.
16In the alternative, the respondent argues that, even if the Tribunal accepts August 29, 2023 as the date when the applicant received its denial, he has not demonstrated that this plan was incurred during the relevant period under s. 38(11)2, i.e., between August 25 and 29, 2023. As such, no payment is owing.
17I find the applicant has established an error pursuant to Rule 18.2(b).
18Tribunal cases are not binding, but I find the reasoning in Kemp is convincing. The Tribunal determined that the clear intent of s. 38(8) was for the insurer to “give” the insured person the denial notice. It, therefore, found it was not reasonable to assume that uploading a denial to HCAI—a system that insured persons do not have access to—would meet the requirement to “give” this notice to the insured person under s. 38(8). Not only is this logic compelling, but I find the conclusion in Kemp is based on an in-depth analysis of the relevant wording from the Schedule. Also, by closely adhering to the specific wording in s. 38(8) (and by affording a liberal reading of this procedural safeguard), I find this interpretation is more in line with the consumer protection mandate.
19By applying this same logic to the case at hand, I find the applicant has shown that the Tribunal erred when it determined that the respondent met the deadline under s. 38(8) when it uploaded the denial to HCAI on August 23, 2023. I further find that, since the Tribunal erred in its determination of the denial date (a key fact for determining whether an insurer met its denial obligations), this error would likely have impacted the outcome of the decision.
20I then find the respondent’s arguments do not impact this conclusion. While some of the arguments are better addressed under the Rule 18.4 analysis below—as they deal with the substance of the parties’ s. 38 dispute—I will now address the argument that the applicant is raising this HCAI argument for the first time on reconsideration. While new arguments are generally not considered on reconsideration, parties are only expected to raise issues during a hearing if it is reasonable to do so to help them meet their onus. The applicant argued in his initial submissions that the denial of this plan was late. The respondent did not address this argument by relying on the denial it uploaded to HCAI. As such, I find there was no reason why the applicant had to demonstrate that a denial through HCAI could not form the basis of a compliant denial under s. 38(8).
21Further, I do not accept the respondent’s position that the applicant is seeking to have the Tribunal re-litigate a position that was not successful at first instance. Rather, I find the applicant has shown there was a factual error in the decision, and he has demonstrated how the error would likely have impacted the outcome.
Rule 18.4 – Varying the Decision
22Since the applicant has established a ground for reconsideration under Rule 18.2, I must now determine what the appropriate remedy is under Rule 18.4. Considering this argument has been extensively argued in the parties’ written hearing submissions (with additional arguments provided on reconsideration), I find I can adequately assess the applicant’s claim for payment within the confines of this reconsideration decision. I then see no prejudice facing the parties from this arrangement, especially as it will foster a timelier resolution of their dispute.
23Once again, the applicant claims the respondent’s denial of the treatment plan for chiropractic services was not denied in compliance with s. 38(8), namely, the respondent did not give him the denial notice within 10 business days of receiving the plan. The Tribunal erred by using the HCAI denial date to assess the respondent’s compliance, so I find I must first determine when the applicant received a compliant denial, if ever.
24In his initial submissions, the applicant argued that the respondent first denied the plan on August 29, 2023. The applicant appeared to shed this position on reply, going further to claim that there has never been a compliant denial:
Pursuant to s.38(11) of the [Schedule], the Respondent is prohibited from taking the position that the insured person has an impairment to which the MIG applies and must pay for all goods, services, assessments and examinations described in the Treatment Plan that were incurred until the Respondent gives a notice that complies with s.38(11). To date, the Respondent has not provided proper notice and so must pay the full amount incurred.
25He reiterated this latter position in his reconsideration submissions.
26Included with the applicant’s initial written hearing submissions, the EOB for this plan indicates that it was “RECEIVED AUG 29 2023”. This date is not within 10 business days of when the plan was received by the respondent, i.e., August 10, 2023. As such, I am satisfied that there is a breach of the deadline set out in s. 38(8).
27Where I disagree with the applicant is when he submits that there has never been a compliant denial notice. Even if I accepted the applicant’s submission that there is a connection between s. 38(11)1 and what constitutes a valid reason for denial under s. 38(8), I find the applicant’s reading of the respondent’s reasons for this denial is too narrow. Though the MIG clearly plays a role in this denial, there are also references to the findings from Dr. Julian Mathoo, physiatrist. For instance, the respondent detailed Dr. Mathoo’s assessment of the applicant’s accident-related injuries in its denial:
Dr. Mathoo diagnosed you with soft tissue sprain/strain type injuries of your neck and back areas with associated cervicogenic headaches all-inclusive within the WAD1 with Low Back Pain Classification. Dr. Mathoo also noted that you also sustained a contusive injury of his [sic] right forearm that has since resolved completely, which was based on the medical documentation that was provided and Dr. Mathoo’s assessment.
28Therefore, even if I accepted the applicant’s assertion that the respondent could not rely on the MIG as a reason to support its denial, several other considerations went into the denial aside from the MIG, e.g., the resolution of the contusive injury; the existence of soft tissue injuries, etc. These reasons are unaffected by the applicant’s reading of the interaction between s. 38(8) and s. 38(11)1.
29Turning to its defense of this claim, the respondent challenges the applicant’s submission that the plan was not denied until August 29, 2023. Pointing to a “fax confirmation” attached to the EOB, the respondent argues that the applicant received a compliant denial on August 24, 2023—a timeline that complies with s. 38(8). The respondent also briefly submits that this denial notice was mailed to the applicant as well, but there is no evidence to support this submission.
30In his reconsideration reply, the applicant disputes the respondent’s reliance on the “fax confirmation”. In addition to highlighting how it was first served on him during this reconsideration process, the applicant claims this document is not, in fact, a “fax confirmation”. Briefly, while fax confirmations are automatically generated when a document transmission is successful, the applicant argues the respondent is “attempting to pass… off” a cover page it added to the EOB as a “fax confirmation”.
31After reviewing the document in question, I am not satisfied that the respondent has established, on a balance of probabilities, that a fax transmission of the EOB was completed on August 24, 2023. Though this document is dated August 24, 2023 (and there is a copy of the EOB appended to it), there is no indication that this document and the EOB were faxed to the applicant on this date. For instance, there is no text in the header or footer of the “fax confirmation” to confirm when the transmission was completed. Also, the document indicates that there are a total of 14 pages being sent via fax, “including cover sheet”. With the entire fax transmission in question totalling 14 pages (i.e., the “fax confirmation” and the EOB), I find the document in question is a cover page, not a “fax confirmation”. As such, this document is not sufficient proof that the EOB was sent to the applicant on August 24, 2023.
32Taken together, I am satisfied that the applicant has shown the treatment plan was denied on August 29, 2023. This timeline constitutes a breach of s. 38(8), so the remedy under s. 38(11) has been triggered. In accordance with s. 38(11)2, the applicant is entitled to payment of any services incurred under this treatment plan between August 25 and 29, 2023.
33There is a dispute between the parties over whether anything was incurred during this period. Most notably, as part of his initial written hearing submissions, the applicant provided a statement of accounts from the plan’s service provider. Though this statement shows the plan has been incurred in full, there is no indication as to whether these services were incurred during the relevant period. However, if the applicant can demonstrate that any part of this plan was incurred between August 25 and August 29, 2023, he will be entitled to payment.
CONCLUSION & ORDER
34The applicant’s request for reconsideration is granted.
35Pursuant to Rule 18.4, the decision is varied at paragraph 32(iii) to read as follows:
The treatment plan for chiropractic services in the amount of $1,328.00 dated August 4, 2023 is payable, pursuant to s. 38(11) of the Schedule, for any part of this treatment plan incurred between August 25 and August 29, 2023;
Craig Mazerolle
Vice-Chair
Released: January 28, 2026