Introduction

"It is covered by OHIP." "Please seek this assessment through the public system first." "Provide documentation that this service is not available under OHIP funding."

If your clinic submits MVA assessment plans, you have seen some version of that denial. It is not an attack on the clinical merits of your plan. It is the availability defence under section 47(2) of the SABS, which says an insurer does not have to pay for any portion of an expense for which payment is "reasonably available" to the insured under another insurance plan or law. For imaging and examinations, the same argument runs through section 42(7).

The 2026 decisions show the argument is beatable in both directions. One case from April 2026, 2026 CanLII 37047 (ON LAT), decided four assessments from the same clinic on the same defence: two were approved and two were denied. The line that divided them is the most useful thing your clinic can study this year.

The pattern fits the broader discipline from the 2026 LAT decisions on HCAI invoicing: vague or unsupported positions lose, and documented ones win. The OHIP argument is no different.

The Two Versions of the Argument

"OHIP will pay for it" is actually two arguments bundled together, and the Tribunal treats them differently.

The first is true availability under section 47(2): the same service can be obtained through the public system, so the insurer does not have to fund a private version. The second is duplication: the OHIP service has already been delivered or is ongoing, so the proposed plan is not reasonable and necessary.

Most insurer wins are the second argument wearing the first one's clothing. The successful denial almost always points to a concrete OHIP service the patient is already receiving, not a hypothetical one they could receive. That distinction decides the case.

What the Insurer Must Prove

The governing onus comes from G.T. v Unifund, quoted in 2026 CanLII 37047 (ON LAT) at paragraph 28:

> An insurer must advance some evidence or submission that, on balance, establishes that the benefit at issue, whether in whole or in part, was reasonably available to the insured from a collateral provider. If an insurer has satisfied that onus, the burden then shifts to the insured to prove that the benefit at issue was not in fact reasonably available.

In that case the insurer met its onus on the orthopaedic assessment with a specific evidentiary chain: the applicant had been assessed by an OHIP orthopaedic spine surgeon at a hospital fracture clinic, and his family doctor had referred him back to the same OHIP-funded specialist for follow-up months before the OCF-18 was submitted. The Tribunal found the assessment "reasonably available" through OHIP and denied it.

The same evidence pattern wins across the case law:

  • 2024 CanLII 123321 (ON LAT): the patient had already been seen by an OHIP neurologist, who discharged him back to his family doctor at no cost. A proposed private neurological assessment was denied as duplicative.
  • 2026 CanLII 37020 (ON LAT): the applicant had already been assessed by a neurosurgeon through OHIP, along with neurologists and an orthopaedic surgeon. The Tribunal found no evidence those assessors were unqualified or unavailable.
  • 2026 CanLII 56663 (ON LAT): chronic pain and orthopaedic assessments were denied because an OHIP-funded pain specialist was actively treating the patient.

> While the respondent asserts that they can be performed by GPs, the OHIP Schedule of Benefits codes it provided do not lead me to conclude that they would be performed by a GP without further specialization.

The lesson is clean: billing codes are not evidence. The defence needs a concrete service, already delivered or booked, not a fee-schedule citation. This is the same "prove it" standard the Tribunal applies to billing above guideline rates. An assertion is not proof in either context.

The Burden Shifts to You

Once the insurer points to a real OHIP service, the claimant must show the service is not reasonably available: unqualified, unavailable, inadequate, or blocked by a wait that would hurt recovery. Silence loses. So does the wrong kind of argument.

2024 CanLII 81210 (ON LAT) is the imaging cautionary tale. The applicant argued she could not wait for an OHIP-covered MRI because of pain. The recommending doctor had not said the MRI was urgent, and no evidence of OHIP wait times was filed. The MRI was denied. The fix is mechanical: put the urgency and the wait-time evidence with OCF-18 at submission, not at the hearing.

And wait-time evidence does win. In 2023 CanLII 42675 (ON LAT), a physiatry assessment was approved over the same section 47(2) objection. The adjudicator was "not convinced that a physiatry assessment would have been reasonably available through OHIP, due to wait times that exist within the public system," pointing to the added pressure on the system during the pandemic. 2025 CanLII 49192 (ON LAT) confirms the framework in writing: once the insurer clears its threshold, the claimant must show the service is not reasonably available "whether because of inaccessibility, lack of equivalent scope, long wait times, or other limitations."

2026 CanLII 10371 (ON LAT) shows what the insurer will ask for. The denial letter requested documentation that the family doctor's referral to an OHIP orthopaedic surgeon had actually been made and refused. The applicant produced nothing, and the denial letter was upheld as compliant with section 38(8).

Where the Argument Falls Flat

The insurer's version of the defence loses in three recurring ways, and each one is worth knowing.

Regulatory and billing-jurisdiction theories. In a June 18, 2026 ONLAT decision, the Tribunal rejected an insurer's challenge to a medical cannabis plan that asked whether the cost "belonged" to OHIP. The holding: regulatory compliance disputes between a physician and their governing body are not a route for an insurer to avoid liability, and the insurer produced no evidence the prescription was payable by OHIP. An insurer has to attack the plan's clinical merit, not the prescriber's billing jurisdiction. The full breakdown of that case and the cannabis framework is in our post on when the LAT pays for medical cannabis.

No proof of the other coverage. 2026 CanLII 42178 (ON LAT) applied the mirror-image onus for extended health plans. Where the insurer pleads another plan's coverage as a bar, the insurer bears the burden of proving that coverage exists. It produced no proof, and the prescriptions were payable.

An investigative purpose. 2026 CanLII 71331 (ON LAT) approved a chronic pain assessment over both the OHIP and duplication objections because the OCF-18 stated the assessment was investigative and meant to develop and propose a treatment plan. The stated purpose of the plan is a drafting lever your clinic controls. That means even if a Chronic Pain OHIP doctor is involved and providing medication and injections, non-OHIP funded Chronic Pain treatment and assessment may still be considered for complimentary physical and psychological treatment.

One more fairness rule came out of the April split decision. The psychological assessment in 2026 CanLII 37047 (ON LAT) was approved even though the insurer's own psychologist called it unnecessary. Note what the insurer's assessor actually found: not an absence of psychological symptoms, but a mild adjustment disorder with depressed mood, which supported further investigation. The fairness point, drawn from Z.E.A.R. v Gore Mutual, was the closer: an insurer that commissions its own section 44 psychological examination cannot use it to deny the claimant an assessor of his choosing. The rule is not a veto over a genuine no-impairment finding. It kicks in when the file supports investigation and the insurer's own exam is part of that support. If your clinic is facing a psych assessment denial, pair the principle with evidence of psychological sequelae and the validity testing standards the Tribunal applies to psychological evidence in the same submission.

The Clinic Playbook

For Physicians and Assessors

1. Check the OHIP trail before you propose the assessment. If the patient already sees a neurologist, orthopaedic surgeon, or pain specialist through the public system, the plan must explain why that care is insufficient. State it in the OCF-18. 2. Document urgency and wait times for imaging. "Required on an urgent basis" in the referring report, plus evidence of OHIP wait times, is what survives the section 42(7) attack. It has worked: a 2023 decision approved a physiatry assessment on public-system wait times alone. 3. State the investigative purpose. An assessment meant to investigate and build a treatment plan resists the duplication argument. One meant to confirm an existing diagnosis invites it. 4. Distinguish overlapping assessments. In the April split decision, the physiatry assessment died because its goals were essentially identical to the chronic pain assessment from the same clinic. If two plans share goals, explain the material difference in each plan.

For Clinic Directors and Billing Administrators

1. Keep the referral receipts. Denial letters will ask for proof that an OHIP referral was made and refused. Have the referral letter and the refusal response on file before the insurer asks. 2. Answer the EOB question, not a different one. The insurer asked for availability documentation. A restatement of symptoms does not respond to it. 3. Flag the billing-code-only denial. If the denial cites OHIP codes but no actual service, that is the weak form of the defence. It is the version the Tribunal has rejected.

Conclusion

"OHIP will pay for it" is a serious argument, but only when the insurer proves the public system is actually delivering the same service. A concrete OHIP consult with a follow-up booked wins. Billing codes, regulatory theories, and bare assertions lose.

For your clinic, the response is symmetrical. Before submitting, check the patient's OHIP trail and explain why the private assessment is still needed. After a denial, test whether the insurer proved availability or just asserted it. An unproven denial position is exactly the kind of conduct the Tribunal has punished elsewhere, as the s. 10 special awards cases show.

The availability defence is beatable. It just has to be answered with evidence, not with another form letter.