F.S. v. The Dominion of Canada General Insurance Company, 2020 CanLII 45521

F.S. v. The Dominion of Canada General Insurance Company ("Travelers")

Citation: F.S. vs. The Dominion of Canada General Insurance Company (“Travelers”), 2020 ONLAT 19-007563/AABS Released Date: June 19, 2020

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

F.S. Applicant

And

The Dominion of Canada General Insurance Company (“Travelers”) Respondent

REASONS FOR DECISION AND ORDER

Adjudicator: Sandeep Johal

APPEARANCES: Counsel for the Applicant: Aurora Mancuso Counsel for the Respondent: Sara Baum

Heard: By way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on June 6, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was the passenger of vehicle which was rear-ended by a third-party vehicle. As a result of the accident, the applicant submits she sustained injuries to her neck, right shoulder, upper back as well as psychological impairments and chronic pain.

3The applicant applied for medical benefits and cost of examinations that the respondent denied on the basis that she failed to dispute the denials within the two-year limitation period under s. 56 of the Schedule and on the basis that her injuries fell under the Minor Injury Guideline (the “MIG”). The applicant disagreed with this decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

ISSUES TO BE DECIDED

4The following are the issues to be decided:

Preliminary issue:

i. Is the applicant time barred from proceeding with the claims/ treatment plans noted at iii, iv, and v, below, on the basis that the claims were disputed outside of the two-year limitation period?

Substantive issues:

ii. Are the applicant’s injuries predominantly minor as defined in the Schedule and subject to a $3,500 treatment limit under the MIG?

iii. Is the applicant entitled to receive medical benefits in the amount of $389.46 for physiotherapy services recommended by Active Body Rehabilitation Centre – David Eshraghi in a treatment plan submitted October 17, 2016, and denied by the respondent on November 21, 2016?

iv. Is the applicant entitled to receive medical benefits in the amount of $2,569.40 for physiotherapy services recommended by Mackenzie Medical Rehabilitation Centre Inc.– Salar Sardari in a treatment plan submitted November 21, 2016, and denied by the respondent on December 1, 2016?

v. Is the applicant entitled to receive the cost of examination in the amount of $2,268.88 for psychological assessment recommended by All Health Medical Centre – Betty Kershner in a treatment plan submitted October 18, 2016, and denied by the respondent on October 26, 2016?

vi. Is the applicant entitled to receive the cost of examination in the amount of $2,260 for chronic pain assessment recommended by All Health Medical Centre – Dr. Inese Robertusin a treatment plan submitted November 21, 2017, and denied by the respondent on February 22, 2018?

vii. Is the applicant entitled to receive interest on any overdue payment of benefits?

RESULT

5Based on the totality of the evidence before me, I find:

i. The applicant is statute-barred from disputing the following medical benefits: a. Physiotherapy services in the amount of $389.46 b. Physiotherapy services in the amount of $2,569.40; and, c. Psychological assessment in the amount of $2,258.88

ii. The applicant’s injuries are predominantly minor injuries as defined under the Schedule. As a result of the monetary limit of the MIG being exhausted, there is no need to determine the reasonableness and necessity of the chronic pain cost of examination in dispute; and

iii. As there are no benefits outstanding, there is no interest that is payable.

ANALYSIS

6I will begin by discussing the preliminary issue and whether the applicant filed her Tribunal application beyond the two-year limitation period and then I will move on to discuss whether the applicant’s injuries fall within the MIG or whether she has a psychological impairment or chronic pain.

Is the applicant barred by virtue of s.56 of the Schedule to dispute issues iii, iv, and v in paragraph 4 above?

7I find that the applicant is statute-barred and unable to dispute the denials for the three treatment plans and I further find that the justice of the case does not warrant an extension of the limitation period under s. 7 of the Licence Appeal Tribunal Act, 1999² for the following reasons.

[8] The treatment plans in dispute for the preliminary issue were as follows: a. Physiotherapy services with a remaining balance of $389.46 which was denied on October 26, 2016. b. Psychological assessment in the amount of $2,258.88 which was denied on October 26, 2016; and c. Physiotherapy in the amount of $2,569.40 which was denied on November 21, 2016.

9The applicant filed her appeal of those denials with the Tribunal on July 16, 2019 which is more than two years since the denials.

10The respondent submits and relies upon the following authorities in support of its position:

• The Supreme Court of Canada in Smith v. Co-operators stated that the two-year limitation period begins to run when an insurer provides an insured with clear and unequivocal denial of a benefit, along with notice of the two-year limitation period.³
• A clear and unequivocal denial must be straightforward and in clear language directed to an unsophisticated person. The denial must provide information about the dispute resolution process and the relevant time limits, as well as reasons for the denial.⁴
• There is no explicit language that must be followed in order for a denial to trigger the limitation clock. As stated by Executive Chair, Linda Lamoureux in GP v. Aviva,⁵ “[t]he requirement to provide proper notice of refusal to pay benefits is not dependant on including specific wording as “refusal” or “denial”.” A refusal can take various forms, and the denial is valid as long as it communicates that a benefit will not be payable.⁶
• Advising the applicant that an insurer examination (“IE”) is required does not detract from an insurer’s clear and unequivocal refusal to pay a medical benefit, and a subsequent denial of payment following completion of the IE’s does not reset the limitation clock.⁷
• In Sietzema v Economical,⁸ the Court of Appeal held that an insurer’s denial, which provided details of the dispute resolution process and the heading; “WARNING: TWO YEAR TIME LIMIT” provided the insured with sufficient notice of her right to dispute entitlement within the two-year limitation period.⁹ (emphasis in original)

11As a result of the above authorities, the respondent’s position is that it provided a clear and unequivocal denial of the treatment plans and the costs of examinations by its denial letters which advised the applicant of her right to file an Application with the Tribunal within two years of the date of the letter. The respondent’s denial further provided information and enclosed materials regarding the claimant’s Right to Dispute, which provided the information on how to bring an Application and how to contact the Tribunal. Furthermore, as in Sietzema, the respondent submits it stated in bold and capital letters, that the applicant had a two-year limit from the date of the insurer’s refusal to pay and to file the Application with the Tribunal.

12It is the respondent’s position that its denial letters included reasons for the denial, noting that the MIG applied and the treatment plan was not reasonable and necessary as the medical documentation provided did not demonstrate that the applicant’s injuries fell outside of the MIG.

13The applicant takes the position that the respondent did not provide a proper notice as its notices did not include the medical and all other reasons for its denials which is contrary to s. 38(8) and s. 38(9) of the Schedule. As a result, the limitation clock does not begin to run.

14Furthermore, the applicant submits the respondent requested IEs without clear reasons and relies upon the Financial Services Commission of Ontario (“FSCO”) case of Augustin v. Unifund Assurance Company,¹⁰ in support of her position that if an insurer’s notice does not comply with the Schedule, the insured person will not be barred by s. 55 (Restriction on Proceedings) from proceeding with disputing the benefit. The applicant submits the IE notice requirements in s. 44(5) must be strictly construed, given that the s. 55 remedy imposes serious consequences on an insured.

15In my view, the issue is a narrow one: were the notices provided by the respondent in denying the treatment and assessment plans sufficient so as to start the two-year limitation clock under s. 56 of the Schedule?

16Upon a review of the evidence, I find that the respondent’s notices were valid and in accordance with the requirements in the Schedule and as set out in Smith and Sietzema. The denial letters clearly set out that “we are unable to approve the services requested”¹¹ and in my view, this is straightforward and clear language directed towards an unsophisticated person that the benefit was being denied. These denials were also sent to the applicant’s counsel. The notices outlined the dispute resolution process (attached to the notices were the Applicant’s Right to Dispute) and the relevant time limits that govern the process (the two year limit is displayed prominently in bold and capitalized).

17Furthermore, I agree with the Adjudicator in K.K. that the IE notices which are permitted by s. 38(10) of the Schedule, do not detract from the clear and unequivocal refusal to pay.¹²

18As a result of the above, I find that that the respondent provided clear and unequivocal denials, which started the limitation clock and the applicant had two years from the date of those denials to commence an application with the Tribunal. As stated above, the applicant filed her appeal application on July 16, 2019 which was more than two-years after the denials and accordingly, the applicant is statute-barred.

19The applicant submits that I should grant an extension of time under s. 7 of the LAT Act based on the four factors as set out by the Divisional Court in Manuel v. Registrar, Motor Vehicle Dealers Act.¹³ Furthermore as a result of the Tribunal decision in Z.P. v. Guarantee Company of North America,¹⁴ wherein I held that s. 7 of the LAT Act applied and I granted an extension of the two-year limitation period on the basis that there was no prejudice to the respondent.

20In my view, the applicant has not persuaded me on a balance of probabilities that the justice of the case requires an extension under s. 7 of LAT Act and I decline to grant an extension of the limitation period for the following reasons.

Section 7 of the LAT Act

21In determining whether to grant an extension of time under s. 7 of the LAT Act, the Tribunal generally weighs the following four factors in order to determine whether the justice of the case requires that the extension be granted:

1. The existence of a bona fide intention to appeal within the appeal period;
2. The length of the delay;
3. Prejudice to the other party; and,
4. The merits of the appeal.

22The four factors are not strict elements that must each be met in order to grant an extension of time. Rather, they are a guide to assist in determining the justice of the case. Whether to grant an extension of time depends on the specific facts of each case.

23The applicant submits the third and fourth factors (prejudice to the other party and the merits of the appeal) are applicable as there is no prejudice to the respondent and the treatments plans are reasonable based on the documented injuries and impairments.

24It is the respondent’s position that the applicant applied to appeal the denials between 8 and 9 months after the expiry of the two-year limitation period which is excessive and relies upon the Tribunal case of N.V. in support of its position that the applicant has not offered any compelling excuse for the delay, particularly given the fact that the applicant was represented by counsel when the denial letters were received and throughout the limitation period. Furthermore, the applicant’s claim for treatment outside of the MIG has little merit.

25I agree with the respondent. The onus is on the applicant and she must provide submissions and evidence that discuss each of the four factors. The applicant has not done so. Other than to submit that the respondent is not prejudiced and the treatment plans are reasonable, she has not provided submissions or evidence of a bone fide intention to appeal within the time period and has not offered an explanation for the delay.

26Although all four factors do not need to be met in order to show that the justice of the case requires granting of the extension, in my view, the longer the length of the delay the more imperative it is for the applicant to show a bona fide intention to appeal and to provide an explanation for the delay.

27In the present case, the applicant does not provide any submissions on the first two factors. The applicant relies upon Z.P. wherein I found in favour of the applicant to extend the limitation period because there was no prejudice to the respondent. However, the facts in Z.P. are distinguishable to the present case. In Z.P. the length of the delay was 19 days and the applicant’s injuries were not within the MIG and there was some merit in the applicant’s appeal. In the present case, the delay is 8 to 9 months.

28In the present case, I find only one factor (prejudice to the respondent) that may be in support of the applicant, however there is more prejudice to the respondent in the present case with an 8-9 month delay as opposed to a 19-day delay as in Z.P. Considering all four factors, I find three factors do not support the applicant as she has not provided any submissions or evidence to show a bona fide intention to appeal within the appeal period, she has not provided any submissions on the reason for the delay and her claim of her injuries being outside the MIG has little merit (discussed further below). Upon considering all four factors, I find that the justice of the case does not support the applicant in granting an extension of the limitation period.

29I will now turn to discuss whether the applicant has a psychological impairment or chronic pain to be removed from the MIG.

Applicability of the Minor Injury Guideline

30The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 3(1) of the Schedule as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in s. 3(1). Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.

31The applicant bears the onus to establish her entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities.¹⁵

32The applicant submits she should be removed from the MIG as a result of pre-existing back pain and anxiety and because of the passage of time, the applicant’s pain and impairments have now become chronic in nature.

33I will proceed to discuss the impairments the applicant has and whether they would be under the definition of the MIG and then I will proceed to discuss whether the applicant may have a psychological impairment or any pre-existing injury that may remove her from the MIG.

The Applicant’s Physical Impairments are within the MIG

34After a review of the evidence, I find the applicant to have impairments that fall within the definition of the MIG for the following reasons.

35The applicant’s chiropractor, Dr. Sardari, submitted a Disability Certificate (OCF-3)¹⁶ which noted the applicant to have a muscle and tendon injury of the neck, a sprain and strain of the thoracic spine, lumbar spine and sacroiliac joint. Dr. Sardari also notes sleep disorders, headaches, stress and nervousness.

36The respondent submits that Dr. Sardari is a chiropractor and it would be beyond the scope of practice for a chiropractor to opine on neurological or psychological impairments.

37Furthermore, the respondent relies upon its IE assessor, Dr. Ballard, Physiatrist, who opined that the applicant had a whiplash associated disorder (WAD II) and thoracolumbar sprain and strain which are injuries that fall within the MIG.¹⁷

38I agree with the respondent. The applicant’s injuries listed in the OCF-3 and her diagnosis from the IE assessor, Dr. Ballard, are sprain and strain type injuries that would fall within the definition of the MIG.

39I will now turn to discuss the applicant’s psychological impairments and whether they are sufficient to remove the applicant from the MIG.

Does the applicant have a psychological injury to remove her from the MIG?

40For the following reasons, I find that the applicant has not proven on a balance of probabilities that she has a psychological injury that would take her out of the MIG.

41The applicant submits that as a result of her family doctor’s clinical notes and records of phobia to driving and sleep disorders and based on the applicant’s self-reports to the IE assessor, Dr. Talebizadeh, she should be removed from the MIG as a result of psychological impairments.

42However, upon review of the clinical notes and records of her family doctor, Dr. Shaikh, there was a notation on October 14, 2016 of the applicant having a phobia to driving and Dr. Shaikh was supportive of counselling; however, it is not clear if that was done. There does not appear to be any referral to a specialist. Other than the one notation, there are no other notations of any psychological impairments that would warrant a referral to a specialist and there does not appear to be any medication that was prescribed.¹⁸

43A notation on January 18, 2017 by Dr. Shaikh stated the applicant having a sleep disorder, however it would appear to be a result of back pain and the applicant was advised to continue her pain medications.

44The applicant further relies upon her self-reports to the IE assessor, Dr. Talebizadeh, wherein she stated that she is only able to fall asleep with medication and then wakes up approximately two hours later. She further reported to Dr. Talebizadeh that she is worried about the future and that she has sadness and anxiety as a passenger.

45Upon review of the report, the applicant self-reported that she is worried about the future with regards to her finances and she further reported that she is not engaged in socializing as much any more as everyone is busy with their own lives. She also reported that she feels some anxiety as a passenger but that she has not refused transportation due to her anxiety and she also takes public transportation without any issues as necessary.¹⁹

46Dr. Talebizadeh completed clinical testing and as a result of the tests and her current assessment, she opines that the applicant does not meet any diagnostic criteria for any psychological disorders.²⁰

47The respondent submits that the IE assessor Dr. Talebizadeh concluded that the applicant did not meet the criteria for any DSM-V (Diagnostic and Statistical Manual of Mental Disorders) disorder and that her psychological complaints fell within the definition of “clinically associated sequelae” as defined in the MIG. Furthermore, the respondent submits that the applicant’s family doctor, Dr. Shaikh, has not diagnosed her with a psychological injury and also has not referred her for any psychological intervention.

48The applicant’s chiropractor notes psychological impairments in the OCF-3, however, in my view, it would be beyond the scope of practice for a chiropractor to opine on or provide a diagnosis of psychological impairments of an applicant and as a result, I do not place any weight on the OCF-3 in support of a psychological impairment.²¹

49A formal psychological diagnosis is not required to be removed from the MIG; however, in order for the applicant to prove on a balance of probabilities that she suffers from a psychological impairment that may remove her from the MIG, there must be compelling evidence, and a single notation in the clinical notes and records of the family physician noting a driving phobia would not be compelling evidence on its own.

50As a result of the above, I find that the applicant has not persuaded me on a balance of probabilities that she suffers from psychological impairments as a result of the subject accident that would take her out of the MIG.

51I will now turn to discuss whether the applicant has chronic pain and whether that is sufficient to remove her from the MIG.

Chronic Pain

52For the following reasons I find that the applicant has not persuaded me on a balance of probabilities that she suffers from chronic pain.

53The applicant submits that she has complained of pain since the date of the accident and she continues to make complaints to date. The applicant’s position is that, given the passage of time, her pain complaints have become chronic in nature. The applicant relies upon the medical evidence including the clinical notes and records of the family doctor, Dr. Shaikh, who has made notations of pain in six separate occasions from September 14, 2016 to January 10, 2019.

54The applicant further submits and relies upon her self-reports to the IE assessors Dr. Ballard, Physiatrist where she reported that there has been no improvement in her accident-related complaints and that she continues to experience neck and back pain and is still taking pain medication.

55The applicant relies upon the Supreme Court of Canada’s decision in Nova Scotia (Workers’ Compensation Board) v. Martin,²² in support of her position that chronic pain is a condition that lasts three to six months after an initial trigger or injury (emphasis in original), and the Alberta Queen’s Bench decision of McLean v. Parmar and Calgary (City of),²³ which refers to the Scientific Monograph of the Quebec Task Force on Whiplash Associated Disorders, which states that pain lasting longer than 6 months is classified as “chronic” pain and held that chronic pain is not a “minor injury”.

56The Martin case was about the constitutionality of the Functional Restoration Program (“FRP”) in Nova Scotia which specifically excludes workers who suffer from chronic pain from receiving earning replacement benefits. In that case, Martin was lifting a tow dolly and towed it backward 15 feet and then he experienced a sudden and severe pain in his lumbar spine. He was diagnosed with lumbar sprain and he attempted to return to work several times but recurring pain required him to stop. He attended a work conditioning and hardening program and his claim for compensation was denied on the basis that there was no pathology to support his complaints of pain and he was developing the early signs of chronic pain, however under the FRP regulations chronic pain is generally excluded.

57The FRP defined chronic pain as follows:

“chronic pain” means pain (a) Continuing beyond the normal recovery time for the type of personal injury that precipitated, triggered or otherwise pre-dated the pain, or (b) Disproportionate to the type of personal injury that precipitated, triggered or otherwise predated the pain. and includes chronic pain syndrome, fibromyalgia, myofascial pain syndrome and all other like or related conditions but does not include pain supported by significant, objective physical findings at the site of the injury which indicate that the injury has not healed.²⁴

58In Martin, it was held the FRP, which excludes compensation for chronic pain, was discriminatory and violated the Charter of Rights and Freedoms.

59The Supreme Court did not define chronic pain as a condition that lasts three to six months as submitted by the applicant. The Supreme Court in Martin noted chronic pain to be “generally considered to be pain that persists beyond the normal healing time for the underlying injury and is disproportionate to such injury.”²⁵

60The McLean case is not binding upon the Tribunal, however in that case the applicant had medical evidence by a doctor which found the applicant to have chronic pain.²⁶ Furthermore, the court found that the applicant was unable to perform many of her activities of daily living, housekeeping and vigorous sports which she played regularly at the time of the accident and the applicant was not expected to improve substantially. She was also found to have serious impairments to her employment opportunities and unable to return to the essential tasks of her employment as a server and not able to pursue her usual recreational activities.

61In my view the present case is distinguishable from the Martin and McLean cases. In those cases there was medical evidence in support of the applicant’s claim of chronic pain by medical practitioners. That is not the situation from the facts of this case.

62The respondent’s position is that the applicant has not provided any medical documentation or a diagnosis of chronic pain that corroborates or demonstrates her allegation that she suffers from chronic pain. Furthermore, the respondent submits that the last mention of accident-related pain from Dr. Shaikh’s clinical notes and records is from January 2017. The respondent also notes that the applicant was assessed by Drs. Ballard and Talebizadeh who both opined that the chronic pain assessment was neither reasonable nor necessary.

63The respondent further relies upon the Tribunal case of M.V. v. Aviva Insurance Company of Canada ²⁷ where it held that “the mere mention of chronic pain in one clinical note is not sufficient medical evidence to support the applicant’s removal from the MIG limits.”²⁸ The respondent’s position is that in the present case there is not even a “mere mention” of chronic pain as there is no evidence of chronic pain or a chronic pain diagnosis.

64In my view, even by applying the Supreme Court’s reference to chronic pain as generally considered to be pain that persists beyond the normal healing time for the underlying injury and is disproportionate to such injury, I find that the applicant has not provided evidence in support that her pain has persisted beyond the normal healing time and is disproportionate to such an injury.

65I agree with the respondent: the onus is on the applicant to adduce compelling evidence of chronic pain and that has not been done. I have not been directed to any evidence of the normal healing time of her injuries and whether her pain is disproportionate to such an injury. There is no suggestion of chronic pain in any of the medical evidence. The applicant submits I should infer she has chronic pain based on the length of time she has complained about pain, however, in my view the applicant’s medical practitioner must provide compelling evidence that her pain is persisting beyond the normal healing time for the underlying injury and her pain is disproportionate to such an injury. It is not something that can be inferred.

66As a result of the above, I find that the applicant does not have chronic pain that would remove her from the MIG. I will now turn to discuss whether the applicant has a pre-existing condition that would remove her from the MIG.

Requirements to be removed from the MIG

67Even if the applicant’s injuries fall within the definition of minor injury, the applicant can still be taken out of the MIG in accordance with s. 18(2) of the Schedule. The applicant must prove, on a balance of probabilities, all three of the following requirements in order to be removed from the MIG under this section:

a) Have a pre-existing medical condition; b) The pre-existing medical condition was documented by a health practitioner before the accident; and c) The person’s treating health practitioner determines and provides compelling evidence that the pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit under the MIG.

68I find that the applicant has not satisfied her onus and has not provided any submissions or evidence of a pre-existing condition that satisfies all the criteria in s. 18(2) of the Schedule in order to be removed from the MIG.

69The applicant submits that she suffers from pre-existing back pain and anxiety, both of which would prevent her from achieving maximal recovery if she is subject to the limits imposed by the MIG. The applicant further submits that she had depression, as well as physical impairments of the neck, back and knees which were exacerbated by the accident.

70The applicant relies upon clinical notes and records dated September 29, 2015, November 9, 2015, December 8, 2015 and January 11, 2016,²⁹ that note the applicant had back pain and that she had anxiety which was noted on June 20, 2014.³⁰ All prior to the subject accident.

71In my view, evidence of a pre-existing condition on its own is not sufficient to remove an applicant from the MIG. As per s.18(2) of the Schedule, the applicant must provide compelling evidence from her treating medical practitioner that the pre-existing condition will prevent maximal recovery from the minor injury if she is subject to the $3,500 limit under the MIG.

72Other than the applicant’s submissions that her pre-existing injury will prevent maximal recovery under the MIG, I have not been directed to any evidence in support of these submissions.

73Without the last part of s.18(2), I find that the applicant has not satisfied the requirements under the Schedule to be removed from the MIG as a result of any pre-existing condition.

74After a review of the evidence and as a result of the above, I find that the applicant does not have a psychological impairment, chronic pain or a pre-existing injury that satisfies the requirements of s. 18(2) of the Schedule to be removed from the definition of the MIG. With the MIG limits being exhausted, there is no need to conduct an analysis on whether the remaining cost of examination is reasonable and necessary.

ORDER

75As a result of the above, I find that:

i. The applicant is statute-barred from disputing the following medical benefits: a. Physiotherapy services in the amount of $389.46 b. Physiotherapy services in the amount of $2,569.40; and, c. Psychological assessment in the amount of $2,258.88

ii. The applicant’s injuries are predominantly minor injuries as defined under the Schedule. As a result of the monetary limit of the MIG being exhausted, there is no need to determine the reasonableness and necessity of the chronic pain cost of examination in dispute; and

iii. As there are no benefits outstanding, there is no interest that is payable.

Released: June 19, 2020

___________________________ Sandeep Johal, Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2S.O. 1999, c. 12, Sched. G. (“LAT Act”)
3. 3Smith v. Co-operators General Insurance Co., 2002 SCC 30 at para. 14. (“Smith”)
4. 4Smith at para. 14 and N.V. v Allstate Insurance Company of Canada, 2020 CanLII 376 (ON LAT) at para. 4
5. 5G.P. and Aviva Insurance Company of Canada, 2017 CanLII 77379 (ON LAT)
6. 6Ibid at para. 27.
7. 7K.K. v. Coseco Insurance Company, 2020 CanLII 12713 at paras. 18 and 21. (“K.K.”)
8. 8Sietzema v Economical Mutual Insurance Company, 2014 ONCA 111
9. 9Ibid at paras 6 and 14.
10. 10[2013] O.F.S.C.D. No. 211, FSCO No. A12-000452
11. 11Written Submissions of the Respondent at Tabs 3 and 5.
12. 12Supra Note 7.
13. 132002 ONSC 1492
14. 142020 CanLII 12697 (ON LAT)
15. 15Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24.
16. 16Respondent’s Written Submissions at Tab 14 dated November 21, 2016.
17. 17Ibid at Tab 7.
18. 18Written Submissions of the Applicant at Tab 33.
19. 19Ibid at Tab 17, Dr. Talebizadeh Report dated December 21, 2016 at page 4.
20. 20Ibid at page 5.
21. 21Ibid at Tab 6.
22. 222003 SCC 54. (“Martin”)
23. 232015 ABQB 62. (“McLean”)
24. 24Martin at page 582.
25. 25Martin at para. 1
26. 26McLean at para. 23.
27. 272018 CanLII 141017 (ON LAT)
28. 28Ibid at para. 16.
29. 29Written Submissions of the Applicant at Tab 33.
30. 30Ibid at Tab 39.