Licence Appeal Tribunal File Number: 24-011376/AABS
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:
Brenna Bethune
Applicant
and
CAA Insurance Company
Respondent
DECISION
VICE-CHAIR:
Neil Levine
APPEARANCES:
For the Applicant:
Doug Wright, Counsel
For the Respondent:
Antony Drake, Counsel
Court Reporter:
Courtney Kelly
HEARD: by Videoconference:
June 3, 2025
OVERVIEW
1Brenna Bethune, the applicant, was involved in an automobile accident on March 1, 2024, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, CAA Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The parties participated in a case conference on December 18, 2024. One week prior to this hearing, the parties resolved all the substantive issues in dispute as set out in the case conference report and order dated December 18, 2024 but were unable to resolve the award. Accordingly, this hearing is limited to the consideration of the award under s. 10 of Reg. 664 only.
ISSUES
3The issue in dispute is:
i. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The respondent unreasonably delayed payments to the applicant. The applicant is entitled to an award in the amount of $21,114.47.
5The applicant is entitled to interest.
ANALYSIS
Parties’ positions
6The applicant was removed from the Minor Injury Guideline (MIG) limit one week before this hearing commenced, and all disputed attendant care invoices, medical and rehabilitation treatment plans were approved. The applicant submits that they are entitled to an award because the insurer unreasonably withheld and delayed these payments despite having evidence that should have removed her from the MIG.
7The applicant sought the amount of $26,940.93 (50 per cent of $53,881.86) which is the total amount of delayed treatment plans and attendant care benefits for 12 months.
8The respondent argues that new information and CNRs were received in early December of 2024, specifically from NeuPath Centre for Pain and Spine about the pain injections that the applicant had received. The applicant received a letter from the respondent dated December 13, 2024 which stated that these new CNRs would be reviewed. On that basis, a file review of the applicant was commenced and the applicant was removed from the MIG after additional information was received on March 26, 2025.
9The respondent’s adjuster also noted in their testimony that as of December 2024 the previous s. 44 examinations that it had relied upon to avoid removing the applicant from the MIG were no longer relied upon.
Legal Test
10Awards can be paid even if the insurer settled the benefits in dispute, otherwise it would allow the insurer to delay payments to the insured without consequence. This was confirmed recently by the Ontario Divisional Court in Vivekanantham v. Certas Direct Insurance Company (2024 ONSC 6198).
11Section 10 of Reg. 664 sets out that to be eligible for an award the respondent must have unreasonably withheld or delayed payments. In addition, the landmark Financial Services Commission of Ontario case Plowright v. Wellington Insurance Company case (FSCO A-003985, October 29, 1993) held that the definition of unreasonable was as follows: “Unreasonable behaviour by an insurer in withholding or delaying payments can be seen as behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” This is the standard that I adopt for the purposes of the adjudication and evaluation of this case.
12The applicant submits that she is entitled to an award based on various benefits which were unreasonably withheld and delayed. These benefits are:
Amount
Submitted or Dated
Not Approved
Approved
$3,000.00/mo.
(12 months)
March 25, 2024
June 11, 2024
May 15, 2025
$2,099.50
March 15, 2024
April 2, 2024
May 15, 2025
$2,200.00
May 15, 2024
May 30, 2024
May 15, 2025
$8,339.30
May 31, 2024
June 13, 2024
May 13, 2025
$2,652.88
March 12, 2024
April 9, 2024
May 15, 2025
$1,494.50
June 4, 2024
July 17, 2024
May 13, 2025
Total $52,786.18
This information is taken from the Applicant’s Supplementary Document Brief, Tabs 7 – 11 and the Respondent’s Evidence Brief.
13The applicant relies on clinical notes and records from June and July 2024, from NeuPath Centre for Pain and Spine that show a series of pain treatments that include nerve block injections; a report from psychologist Ms. Sarvin Sabet that states that the applicant should be removed from the MIG based on psychological factors; log notes from the respondent’s adjuster Ms. Natasha Fisher from March, April and August 2024; and correspondence from Dr. James Kim of NeuPath Centre for Pain and Spine dated July 11, 2024 to the applicant’s family physician which discussed the applicant’s myofascial pain and daily headaches and potential treatment options.
14I find that the respondent’s conduct in maintaining its position on the MIG until May 13, 2025 to be stubborn, unyielding, and unreasonable, for the following reasons.
15First, the respondent received an assessment for treatment dated May 29, 2024 from Ms. Sarvin Sabet, a psychologist acting for the applicant. This report concluded that the applicant suffered from a number of psychological issues and pain issues as a result of the accident, and the adjuster was told that psychological impairments of the applicant were significant and should not be considered minor as defined in the SABs. This was ignored.
16Second, Ms. Natasha Fisher, the respondent’s adjuster on this file, was unable to provide a clear and concise reason that the applicant was taken out of the MIG on or about May 13, 2025. The respondent states that records were reviewed, but offers no explanation about what exactly had changed prior to the receipt of the records. For example, the respondent cites that the new records they received included reference to nerve block treatments that the applicant had received, indicating chronic pain. Yet, pain and pain-related complaints were mentioned numerous times throughout the records of the applicant. For example, in the psychologist’s report dated May 29, 2024 and in CNRs from the same psychologist through 2024, and interdisciplinary pain management intervention was recommended. In addition, pain was mentioned frequently in the IE report of Dr. Donald Frey, psychologist from October 18, 2024. In addition, pain treatments were mentioned in the log notes of the respondent referencing the IE assessment report of Dr. Pankaj, MD, from August 6, 2024.
17Third, Ms. Fisher, the adjuster on the file, noted on September 18, 2024 in the log notes that “Given the serious nature of the client’s ongoing physical pain and psychological impairment as a direct result of the MVA, this client should NOT [sic] fall under the minor injury guidelines.” There is no explanation provided by the respondent why the applicant was not removed from the MIG soon after.
18Fourth, I note that the review of the applicant records provided and received in December, 2024 by the respondent took five months.
19Fifth, when the applicant provided new information that indicated the applicant’s injuries were out of the MIG, the respondent did not reevaluate the position based on the new information. For example, they did not make any new s. 33 requests for examinations of the applicant, and they did not request more information from the applicant when the applicant.
20Sixth, while the respondent testified that one of the reasons the applicant was denied some treatment is because the treatments would have been in excess of the MIG limit, the respondent’s adjuster, Ms. Fisher, testified that there was $2,115.00 remaining under the MIG limit of $3,500 as of May 15, 2025. The respondent offered no reason that treatment plans were not partially approved.
21Finally, I am persuaded by the applicant’s submissions and evidence that the information provided by the applicant in addition to the report of Ms. Sarbet provided the respondent with sufficient information and evidence to re-examine their MIG position much earlier than when they did. For example, there are log notes from March 13, 2024 that note the applicant’s pain and the need to adjust the strength of pain medicine to account for this. Accordingly, in my view, this is evidence of unyielding and immoderate behaviour that should lead to an award.
22The respondent argues that they only had sufficient and necessary information after March 26, 2025 to remove the applicant from the MIG and approve the disputed treatment plans and benefits in question. The respondent submits that these approvals were made in good faith based on the prior and the new information it possessed and then assessed accordingly.
23In my view, the records show that the respondent had enough information about the applicant’s physical and psychological conditions to remove the applicant from the MIG well before March 26, 2025 (indeed, probably before December 2024 in light of Ms. Fisher’s log note of August 21, 2024 mentioning that the applicant was attending a pain clinic and Ms. Fisher’s September 18, 2024 log note).
24In addition, the applicant possessed the notes and report of Ms. Sabet, the psychologist from May 29, 2024 who pointed out that the applicant was suffering from psychological issues, pain-related issues, potentially PTSD and somatic symptom disorder. Ms. Sabet pointed out that the psychological impairments should not have been considered minor. Aside from production requests for this dispute, there are no indications that the adjuster, Ms. Fisher, sought more information or tried to obtain more information (e.g., through s. 33 requests). The respondent in fact stuck to their position of MIG. I am therefore persuaded that the respondent showed stubbornness and an unwillingness to re-examine the applicants case in a more expeditious and good-faith manner as they were obligated to do.
25I am further persuaded that the applicant has shown these delays were not warranted and were questionable based on the submitted medical documentation and hence meet the definition of being inflexible and unyielding.
26The applicant requested an award of 50 per cent of the amount in dispute. While the applicant calculated the total amount in dispute as $53,881.86, I calculated the total amount in dispute to be $52,786.18 (see table above that outlines the amounts in dispute based on the submissions of the parties).
27I order an award of 40 per cent. The amount of 50 per cent is the maximum award, which should be awarded in the most egregious of cases. I do not find the circumstances here to be the most egregious but the respondent’s actions do fall significantly short of the standard based on the consumer protection nature of the Schedule. Most important to my order granting an award on the higher end of the spectrum is the length of time that has transpired since the treatment plans and benefits were submitted to when the respondent changed their belief that the applicant should be deemed to be out of the MIG. The delays ranged from 11 months to as long as 14 months.
28While the respondent eventually removed the applicant from the MIG and approved and paid for the benefits, it did so after a long delay, just prior to the hearing. This, in my view, was unreasonable and this type of conduct must be deterred. The respondent has an ongoing obligation to adjust its file in good faith even after an application has been commenced with the Tribunal. The mitigating factor is that the respondent has paid the benefits, which I have considered in awarding 40 per cent for each of the plans in question, which equals $21,114.47.
Interest
29Interest applies on the award in accordance with s. 10 of Reg 664
ORDER
30I order that:
i. The applicant is entitled to an award of $21,114.47.
ii. The applicant is entitled to interest.
Released: October 8, 2025
____________________
Neil Levine
Vice-Chair