An Ontario tribunal handed Aviva a substance win but signaled that claimants can return for a second crack at exiting the Minor Injury Guideline.
In Misiti v Aviva General Insurance Company, 2026 CanLII 45586 (ON LAT), released May 12, 2026, the License Appeal Tribunal ruled that Felicia Misiti was not barred from a fresh hearing despite losing an earlier dispute over the same Minor Injury Guideline (MIG) question - then dismissed her claim on the medical evidence.
Misiti was injured in a car crash on September 23, 2020. After Aviva denied benefits, she applied to the Tribunal. An August 8, 2024 decision placed her injuries within the $3,500 MIG limit, and a November 8, 2024 reconsideration upheld that result. On October 28, 2024, she filed again - this time arguing chronic pain and psychological impairment, rather than a pre-existing condition, should pull her out of the MIG.
Aviva pressed res judicata, saying the MIG question had already been settled. Adjudicator Nadia Mauro disagreed. Citing Danyluk v. Ainsworth Technologies Inc., she found the earlier ruling addressed only s. 18(2) of the Statutory Accident Benefits Schedule, the pre-existing condition route. Misiti's new application turned on s. 18(1) - chronic pain with functional impairment and psychological impairment - which required a different analysis. Mauro added that barring the second application would conflict with the Schedule's consumer protection mandate.
That procedural opening matters for insurers. A prior MIG loss does not necessarily close the door when a claimant returns with a different statutory exit.
Aviva's substantive defence held firm. On chronic pain, Mauro accepted the documented neck pain and headaches but found them not accident-related. A clinical note from Dr. Campos Bustamante dated January 28, 2022 recorded chronic headaches and neck pain since August 2019, nearly a year before the crash. A rheumatology note from Dr. Kim Legault dated January 12, 2021 traced the pain to 2019. A section 44 report by Dr. Allan Kopyto referenced an April 28, 2020 specialist visit for the same complaints, also pre-dating the accident.
The psychological claim fared no better. Mauro discounted the section 25 assessment of Dr. Sean Shahrokhnia, dated January 21, 2025, noting it relied largely on self-reported pain symptoms tied to the same neck pain and headaches the adjudicator had already found pre-dated the accident. The section 44 assessment by Dr. Joel Goldberg, dated August 5, 2025, drew significant weight. Goldberg concluded there was "no evidence of accident-related psychological injuries."
With Misiti remaining inside the MIG, the disputed $2,200 treatment plan from Psychological Health Solutions did not require further analysis. Mauro declined interest under section 51 and rejected the section 10 award request under Regulation 664, since no benefits were owing.
The takeaway for claims teams: pre-accident medical records remain the strongest defence against chronic pain MIG exits, and a thorough section 44 assessment that reviews the full file can outweigh a self-report-driven section 25 report.
