Licence Appeal Tribunal File Number: 23-013798/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:
Song Qiao Feng
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Kathleen Wells
APPEARANCES:
For the Applicant:
Anil Hampole, Counsel
For the Respondent:
Anthony M Naples, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Song Qiao Feng, the applicant, was involved in an automobile accident on September 5, 2020, 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, Aviva General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
Preliminary Issue:
2The preliminary issue in dispute is:
- Is the applicant barred from proceeding to a hearing for issue number 3 below, regarding a claim for an attendant care assessment in the amount of $2,200.00, because the applicant failed to dispute their denial within the 2-year limitation period, pursuant to s.56(1) of the Schedule?
Substantive Issues:
5The substantive issues in dispute are:
Is the applicant entitled to $360.00 ($4,150.72 less $3,790.72 approved) for psychological services, proposed by Somatic Assessments & Treatment Clinic in a treatment plan/OCF-18 (“treatment plan”) dated November 19, 2021?
Is the applicant entitled to $1,257.39 ($4,150.72 less $2,893.33 approved) for psychological services, proposed by Somatic Assessments & Treatment Clinic in a treatment plan dated September 15, 2023?
Is the applicant entitled to $2,200.00 for an attendant care assessment proposed by Somatic Assessments & Treatment Clinic in a treatment plan dated September 14, 2021?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant is barred from bringing an application for the treatment plan for a psychological assessment dated September 14, 2021.
ii. The applicant is not entitled to the remaining $360.00 in the treatment plan for psychological services dated November 19, 2021.
iii. The applicant is not entitled to the remaining $1,257.39 in the treatment plan for psychological services dated September 15, 2021.
iv. The respondent is not liable to pay an award.
v. As no payments are owing, no interest is due.
vi. The application is dismissed.
ANALYSIS
Preliminary Issue
4I find that the applicant is barred from bringing her application for the treatment plan for an attendant care assessment, because she did not dispute the respondent’s denial within the two -year limitation period, pursuant to s.56 of the Schedule.
5S.56 sets out that an application under s. 280(2) of the Insurance Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed. To trigger the running of the limitation period, the insurer must provide clear and unequivocal notice of a refusal to pay benefits. In Smith v. Co-Operators Gen. Ins. Co., the Supreme Court of Canada articulated the requirements that an insurer must satisfy for there to be a proper denial of benefits: straightforward and clear language to inform a person of the dispute resolution process; language directed towards an unsophisticated person; identification of the person’s rights to dispute the denial; and the relevant time limits that govern that process.
6The respondent argues that the applicant was issued a valid denial of the treatment plan on October 14, 2021, and her application was not filed until November 14, 2023, which is outside the two-year limitation period.
7The applicant makes no submissions with respect to the preliminary issue.
8I find that the respondent’s October 14, 2021 notice of examination (“NOE”) triggers the limitation period, because it complies with s. 38(8) and s. 44.(5), It is a clear and unequivocal denial, and provides information with respect to the applicant’s right to dispute the denial and the relevant timeframes, including the two-year limitation period. As such, I find the NOE is sufficiently clear and detailed for an unsophisticated person to make an informed decision whether to dispute the denial.
9Therefore, the application was filed outside of the limitation period, and the applicant is barred from proceeding on the treatment plan for an attendant care assessment, pursuant to s.56.
10To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
Is the applicant entitled to the remaining $360.00 ($4,150.72 less $3,790.72 approved) for psychological services in a treatment plan dated November 19, 2021?
11I find that the applicant is not entitled to the remaining $360.00 in the treatment plan dated November 19, 2021.
12The applicant has made no submissions and led no evidence with respect to the treatment plan for psychological services dated November 19, 2021. As such I find that the applicant has not met her onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary.
13Accordingly, the applicant is not entitled to the remaining $360.00 for psychological services in a treatment plan dated November 19, 2021.
Is the applicant entitled to $1,257.39 ($4,150.72 less $2,893.33 approved) for psychological services in a treatment plan dated September 15, 2023?
14I find that the applicant is not entitled to the remaining $1,257.39 in the treatment plan dated September 15, 2023.
15The goals of the treatment plan, dated September 15, 2023, and prepared by Raymond Wong, occupational therapist, are “to challenge and reduce negative thought patterns by utilizing cognitive restructuring techniques to deal with anxiety and depressive feelings and cognitions” and a return to activities of normal living.
16The treatment plan sets out 16 one-and-a-half hour treatment sessions at a rate of $149.61 per hour, $360.00 for a progress report, and $200.00 in documentation and support fees for the preparation of the OCF-18. The respondent partially approved the plan, agreeing to pay for 16 therapy sessions, but at the reduced the rate of $99.75 per hour for psychotherapy treatments.
17The applicant argues that the proposed services will be provided by a registered psychotherapist, Jeff Pang, and therefore he should be entitled to the same rate as a psychologist who performs the same services.
18The respondent argues that the Professional Services Guideline (“Guideline”) sets out the $149.61 hourly rate for psychologists, and does not assign a rate to psychotherapists. In these circumstances, the Guideline provides that the parties may agree on an hourly rate themselves, or as a default, rely on hourly rate for unregulated professionals of $58.19 per hour, which is significantly lower than the hourly rate of $99.75 proposed by the respondent.
19The applicant relies on Tribunal decisions A.S. vs. Aviva Insurance Company, 2020 CanLII 12787 (ON LAT) (“A.S.”) and J.V. v. Intact Insurance Company, 2019 CanLII 76995 (ON LAT) (“J.V.”) where the Tribunal held that the psychotherapists in those cases were eligible for the same rate as a psychologist. I am not bound by Tribunal decisions, and I disagree with the finding in A.S., because the adjudicator based his decision on the specific services provided, while the rates set out in the Guideline are based on the professional designation of the provider.
20I find J.V. to be distinguishable from the present case because in J.V., the adjudicator found that the applicant had specialized training in the provision of the specific service. In the present case, as the respondent notes, the applicant has not made submissions or directed me to any evidence of the Mr. Pang’s credentials or specialized training.
21For these reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that the hourly rate of $149.61 is reasonable and necessary. Accordingly, the applicant is not entitled to the remaining $1,257.39 in the treatment plan for psychological services dated September 15, 2023.
Interest
22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.
Award
23The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
24The applicant has not made any submissions or led any evidence with respect to an award. As such, I find that the applicant has not met her onus to prove on a balance of probabilities that the respondent unreasonably withheld or delayed the payment of any benefits.
ORDER
25I find that:
The applicant is barred from bringing an application for the treatment plan for a psychological assessment dated September 14, 2021.
The applicant is not entitled to the remaining $360.00 in the treatment plan for psychological services dated November 19, 2021.
The applicant is not entitled to the remaining $1,257.39 in the treatment plan for psychological services dated September 15, 2023.
The respondent is not liable to pay an award.
As no payments are owing, no interest is due.
The application is dismissed.
Released: October 17, 2025
Kathleen Wells
Adjudicator