Licence Appeal Tribunal
RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 23-012708/AABS
Case Name: Jessica Cunha v. Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant: Shahzad Ayub, Counsel
For the Respondent: Sophia Chaudri, Counsel
OVERVIEW
1On December 8, 2025, the respondent requested reconsideration of the Tribunal’s decision released November 17, 2025 (“decision”).
2Stemming from an accident on May 7, 2019 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 entitled to payment, with interest, for four of the five treatment plans in dispute, pursuant to s. 38(11) of the Schedule. The Tribunal further determined that no payment was owing for a treatment plan proposing an orthopaedic assessment, because it had been denied in compliance with s. 38(8). The Tribunal also dismissed the award claim.
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 reconsideration request. She is asking the Tribunal to find she is entitled to payment of the orthopaedic assessment treatment plan.
5The respondent asks the Tribunal to dismiss the applicant’s request for reconsideration.
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 core of the Tribunal’s analysis of the orthopaedic assessment treatment plan can be found at paragraph 32 of the decision:
The respondent issued a denial letter for the February 3, 2023 treatment plan on February 6, 2023. I find that the denial letter is compliant with s. 38(8) because the letter is a clear and unequivocal denial, identifies the treatment plan at issue, identifies the applicant’s injuries and explains that Dr. Silver opined in his January 23, 2023, IE report that he found no ongoing accident -related musculoskeletal impairment. The letter advises the applicant that there will be a s.44 paper review of Dr, Silver’s report, and that she is not required to attend the examination. The NOE advises the applicant of her rights to dispute the denial and the timelines in which to do so. For these reasons, I find that the denial letter is sufficiently clear and detailed for an unsophisticated person to make an informed decision whether or not to dispute the denial[.]
9Of specific import to this reconsideration request, the Tribunal made the following findings about the respondent’s IE reports, including the aforementioned report from Dr. Silver, at paragraphs 11 – 14:
Section 44(5)(a) [of the Schedule] states that, if an insurer requires an examination under this section, the insurer shall give the insured person a notice setting out the medical and any other reasons for the examination…
The applicant relies on the Tribunal decision of Taksali v. Aviva Insurance Company, 2024 CanLII 128 (ON LAT) (“Taksali”), which held that a non-compliant notice of an insurer’s examination (“IE”) caused the resulting IE report to be void ab initio. The applicant takes the position that a denial notice which relies on such an IE report, is in itself invalid as a result.
Taksali is a Tribunal decision and is not binding on me. I disagree with the conclusion in Taksali that a non-compliant notice of an IE renders the IE report void, because it failed to consider that the remedy for an insufficient IE notice is that the applicant is not obligated to attend the IE.
In the present case, the applicant attended and participated in the IEs without any protest, and as such, the applicant’s arguments on the admissibility of the IE reports, and the respondent’s reliance on them in denying treatment plans are moot.
10Relying on the importance the Court of Appeal placed on the consumer protection mandate in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 (“Tomec”), the applicant claims the Tribunal should not have allowed the respondent to rely on Dr. Silver’s IE report when it denied the orthopaedic assessment treatment plan. Instead, it should have followed the ruling in Taksali and found a breach of s. 38(8).
11To support her position, the applicant raises several issues with the Tribunal’s interpretation of the interaction between s. 38 and s. 44(5). First, the applicant claims the Tribunal’s interpretation of these provisions is premised on the “dubious notion” that an insured person can waive the procedural protections afforded under s. 44(5). Second, the applicant argues that any suggestion that an insured person can choose to protest a non-compliant IE notice by not attending the IE is divorced from reality. Accident victims are in a vulnerable situation, and the financial ramifications of missing an IE are high. Third, by accepting reports obtained through non-compliant notices, the applicant submits that the Tribunal will effectively remove any incentive for insurers to comply with s. 44(5).
12To start, while the applicant denies she is asking for this kind of relief, I find her reconsideration grounds are effectively an attempt to re-litigate arguments that were not successful during the hearing. As quoted above, the Tribunal dismissed the applicant’s position that an IE report obtained from a non-compliant notice cannot form the basis of a compliant denial under s. 38(8). The applicant has not shown how her present request is substantively different than the position she presented during the hearing.
13Additionally, I find her reconsideration request is premised on the Tribunal accepting that there is a connection between s. 38 and s. 44(5). Put another way, though the applicant raises a number of policy grounds in support of her position, the only way these arguments will have any bearing on the outcome of the decision (and, thus, trigger Rule 18.2[b]) is if I first find an IE report obtained through a deficient notice cannot form the basis of a compliant denial. This is the only argument that the applicant has put forward to challenge the key findings the Tribunal used to deny payment of the orthopaedic assessment treatment plan.
14I do not agree with the applicant’s proposed interpretation of the interaction between s. 38 and s. 44(5). First, the wording contained in s. 38 and s. 44(5) shows there is no connection between these provisions. At both the beginning and the end of s. 38(11), the availability of this “shall pay” remedy is linked to notices provided “in accordance with” s. 38(8), not s. 44(5) (emphasis added):
If the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:
The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline 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).
15There is also no mention of s. 38 in s. 44(5) of the Schedule.
16Second, beyond the plain language of these provisions, I find the applicant’s proposed interpretation does not align with the purpose underpinning s. 38(8). In short, by allowing an insured person to understand why their insurer is denying a claim, the insured person can determine what steps they might take in response.
17For instance, if an insurer says it is denying a benefit because it has not received any records from the family doctor, the insured person is presented with several options about how to proceed, e.g., obtain these records; apply to the Tribunal; accept the denial, etc. In other words, these reasons have allowed the insured person to understand the position of the insurer, and, by extension, they have allowed the insured person to determine what options are available to address the denial.
18Relatedly, the applicant’s arguments about s. 38(8) are premised on the position that the reasons included in a denial letter must be “correct”. Yet, even if reasons are not factually “correct”, the notice may still be compliant with s. 38(8) if the insured person is able to understand why the insurer denied the claim. Returning to the example above, if the insurer denied a medical benefit based on the belief that it never received the family doctor’s records—yet, it had, in fact, received these records a few weeks prior—the reasons for the denial would be factually “incorrect”. However, by explaining the thought process that the insurer used to deny the benefit, these reasons would still allow the insured person to determine what steps they needed to take to challenge the denial, namely, they needed to correct the error by telling the insurer it had received the family doctor’s records. Despite the reasons being factually “incorrect”, this hypothetical insured person is still able to respond.
19This same framework demonstrates why the applicant’s grounds for reconsideration do not meet the standard under Rule 18.2(b). Even if it was not permitted to rely on Dr. Silver’s IE report for any purpose due to its s. 44(5) non-compliance, mentioning this report in the denial letter still allowed the applicant to understand why the respondent decided not to approve the treatment plan. In other words, the respondent informed the applicant of its reasons for denying the plan, regardless of whether these reasons were “correct” or not. Taken together, the purpose of s. 38(8) is met.
20Finally, while the applicant places significant weight on the reasoning in Taksali, Tribunal case law is not binding. Instead, this case was addressed by the Tribunal in the decision, and reasons were given for why it did not find it was persuasive in this instance. I see no error in this approach.
21Taken together, I find the applicant has not established a ground for reconsideration based on Rule 18.2(b).
CONCLUSION & ORDER
22The applicant’s request for reconsideration is dismissed.
Craig Mazerolle
Vice-Chair
Released: February 5, 2026