What happened: Ontario's Divisional Court threw out TD General Insurance Company's appeal over a massage therapy rate.
Who's involved: TD General Insurance Company, a claimant seeking accident benefits after a 2020 crash, and Ontario's Licence Appeal Tribunal.
What's at stake: Twelve massage sessions, and whether $87.29 broke the $58.19 hourly cap for non-catastrophic claimants.
Why it matters: A fee objection skipped at the first tribunal hearing may not get a second chance.
Where it stands: Appeal dismissed October 8, 2026; TD pays the claimant $6,000 in agreed costs.
To TD General Insurance Company, the tribunal's figure looked like $87.29 an hour for massage therapy. The cap is $58.19.
The adjudicator behind the ruling had a simple answer: that is not what she decided.
Ontario's Divisional Court dismissed TD's appeal on October 8, 2026. The insurer had raised the hourly rate for the first time on reconsideration, and the tribunal was entitled to say no.
The file goes back to a crash on January 16, 2020. The claimant asked TD for accident benefits to cover a range of treatments and expenses, and the dispute ended up at Ontario's Licence Appeal Tribunal.
On January 27, 2025, the tribunal gave her some of what she claimed and turned down the rest. It also ruled out a separate award under section 10 of the province's auto insurance regulation.
Round two came on May 13, 2025, when the tribunal reconsidered. It reversed course on some expenses incurred before the treatment plans were submitted, and adjusted its findings on others.
By the time TD got to court, the fight was down to one issue: 12 massage therapy sessions. The Professional Services Guideline, which is built into the Statutory Accident Benefits Schedule (SABS), caps the hourly rate at $58.19 for claimants who are not catastrophically impaired.
TD argued the reconsideration decision approved massage at $87.29 an hour. It also said the tribunal should have looked at what TD described as evidence of the Guideline rates.
The adjudicator saw it differently. She noted she had never found that massage could be ordered at $87.29 an hour. Her finding that the treatment plan was reasonable was based on $87.29 per procedure.
Per procedure. Not per hour.
Timing was the bigger hurdle. In the reconsideration decision, the adjudicator wrote that she had reviewed the written hearing submissions and found “that neither party made any submissions relating to the hourly rate attributed to the proposed massage therapy services.”
If TD wanted to argue the rate was too high, the tribunal said, “it was incumbent on it to do so in its written hearing submissions.”
TD knew about the treatment plan at the first hearing and argued it was unreasonable and unnecessary. “The insurer could have, but did not, raise any argument about the rate charged for massage therapy,” the court wrote.
Appeals from the tribunal can only be about questions of law, under the Licence Appeal Tribunal Act, 1999. So TD had to show a legal mistake. The court found none.
Reconsideration “is not an appeal or new hearing,” the court said. Under the tribunal's own case law, new arguments at that stage get in only in exceptional circumstances, and whether to hear one is the tribunal's call.
The court saw no legal error in the adjudicator leaving the Guideline question unanswered when it was never argued at the first hearing, and no basis to second-guess her discretion.
The appeal was dismissed. TD will pay the claimant $6,000 in costs, all-inclusive, an amount the parties agreed on.
A fee-cap objection that stays out of the first round of tribunal submissions may not get a hearing on reconsideration - and the courts may let that stand.
This article is based on the Divisional Court's endorsement released October 8, 2026, and its account of the tribunal's earlier decisions.
