An Ontario tribunal has upheld an insurer's right to apply the Minor Injury Guideline despite a flawed denial notice.
In a reconsideration decision released July 22, 2026, the Licence Appeal Tribunal dismissed a claimant's challenge to an earlier ruling that kept him within the MIG and denied his disputed treatment plans.
The case arose from an auto insurance dispute where the claimant sought reconsideration of the Tribunal's April 1, 2026 decision. That decision found the claimant subject to the MIG and not entitled to the treatment plans in dispute, interest, or an award. The claimant argued the Tribunal committed an error of law under Rule 18.2(b) of the Licence Appeal Tribunal Rules, 2023.
His central argument was that the insurer's November 30, 2023 notice - which the Tribunal itself found did not comply with s. 38(8) of the Statutory Accident Benefits Schedule - should have permanently prohibited the insurer from taking the position that the MIG applies. He contended this triggered the remedy in s. 38(11)1 and required payment for the disputed treatment plans in full, with interest.
Vice-Chair E. Louise Logan disagreed. Guided by the Divisional Court's decision in Zheng, Cai, v. Aviva, 2018 ONSC 5707, she found that a non-compliant s. 38(8) notice does not "irrevocably" bar MIG reliance. The prohibition is limited to the specific treatment plans for which the non-compliant notice was issued.
The Tribunal had also found that the insurer's subsequent notice dated June 5, 2024 cured the deficiency in the earlier notice. The claimant challenged this, arguing the June 2024 notice was itself non-compliant because it relied on an insurer's examination report obtained through a notice that did not comply with s. 44(5)(a) of the Schedule. He submitted this rendered the examination results void ab initio.
The Vice-Chair rejected this argument. She found no statutory connection between s. 38 and s. 44(5), noting that s. 38 does not mention s. 44(5) and that the s. 38(11) remedy is linked to notices under s. 38(8), not s. 44(5).
On the June 5, 2024 notice, the Vice-Chair found it satisfied s. 38(8) because it described the aspects of the examination opinion the insurer relied on, specified the claimant's injuries, and connected the opinion to the treatment plans in a manner that would enable the claimant to determine whether to accept or dispute the denial.
She also addressed whether the accuracy of reasons in a denial notice matters for s. 38(8) compliance. She found that even if the reasons provided are not correct, the notice can still comply with s. 38(8) if the insured person is able to understand why the insurer denied the claim.
On the burden of proof for MIG removal, the Vice-Chair found no error. The claimant had made no submissions and directed no evidence toward removal from the MIG under s. 18 of the Schedule. Even if this finding were an error, she found it would not likely have changed the outcome, as the claimant's substantive arguments for MIG removal rested entirely on the insurer's s. 38(8) non-compliance - which, following Zheng, does not establish removal from the MIG.
The reconsideration request was dismissed.
