Aviva won a do-over at Ontario's Licence Appeal Tribunal after adjudicators ignored its core statutory defense against a physiotherapy claim.
In a reconsideration decision released May 11, 2026, Vice-Chair Craig Mazerolle granted Aviva Insurance Company of Canada's request to revisit a portion of a February 5, 2026 ruling that had awarded Joseph Lera entitlement to a physiotherapy treatment plan plus interest.
The underlying dispute stemmed from an accident on March 6, 2023. Lera sought benefits under the Statutory Accident Benefits Schedule. After a videoconference hearing, the Tribunal originally found him entitled to one of the four treatment plans in dispute - a physiotherapy plan from We Care Rehabilitation Clinic, submitted March 29, 2023, valued at $3,651.22 - while denying his request for a non-earner benefit.
Aviva pushed back. Its position on reconsideration was that the Tribunal had misstated its closing submissions about the physiotherapy plan. Aviva argued it had not contested the plan on medical-evidence grounds. Instead, it had relied on s. 38(5) and s. 38(6) of the Schedule.
Those provisions matter for claims handlers. Section 38(5) allows an insurer to refuse a treatment and assessment plan if it describes goods or services to be received during a period when the insured is entitled to receive goods or services under the Minor Injury Guideline. Section 38(6) goes further: a refusal made under subsection (5) "is final and is not subject to review."
On reconsideration, Mazerolle reviewed the hearing transcript and found the original decision had not engaged with this defense. He concluded that Aviva's closing arguments had focused on its position that the plan was submitted during a period when Lera was entitled to benefits under the MIG. That defense, he wrote, formed the core of the respondent's position - not a minor or tertiary point.
The applicant had argued that the MIG was no longer an issue before the Tribunal, and that sufficient reasons had been given on reasonableness and necessity. Mazerolle disagreed. He found that whether or not the MIG itself was a live issue, the Tribunal still had to determine whether Aviva's denial was made in accordance with s. 38(5). By skipping that analysis, the Tribunal materially breached the insurer's right to procedural fairness under Rule 18.2(a) of the LAT Rules.
The remedy: that portion of the original decision is cancelled. A written rehearing before a different adjudicator will decide only whether Lera is entitled to the $3,651.22 physiotherapy plan and any interest. Aside from the hearing transcript, no new evidence (including affidavits) may be relied upon - only evidence that was exchanged between the parties in accordance with the deadlines set out in the case conference report and order, released June 16, 2025.
For insurers and claims professionals, the takeaway is procedural. Adjudicators are not required to address every argument a party raises, but where a statutory denial defense forms the core of an insurer's position, it must be expressly engaged with. The decision underscores the practical weight of s. 38(5) and s. 38(6) as standalone bars to recovery, separate from the medical merits.
The matter is not final. A rehearing on the physiotherapy plan and interest remains outstanding.
