Citation: Berberich v Aviva Insurance Company of Canada, 2025 ONLAT 24-000953/AABS
Licence Appeal Tribunal File Number: 24-000953/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:
Joseph Berberich
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Jeff Chatterton
APPEARANCES:
For the Applicant: Turel Hufriz, Paralegal
For the Respondent: Jessica Rogers, Counsel
HEARD: In Writing
OVERVIEW
1Joseph Berberich, the applicant, was involved in an automobile accident on August 15, 2021, 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 Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to the treatment plans / OCF-18’s proposed by Downsview Healthcare, as follows:
i. $1,937.92 ($6,040.08 less $4,102.16 approved) for psychological services dated January 14, 2022;
ii. $1,326.06 ($4,204.32 less $2,878.26 approved) for psychological services dated June 22, 2022; and
iii. $1,157.15 ($3,697.14 less $2,539.99 approved) for psychological services dated November 8, 2022?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The application is dismissed. The applicant has not met the onus to establish entitlement to the disputed amount on the treatment plans in dispute. No interest is payable.
ANALYSIS
Psychological Treatment Plan – Professional Rates
4The applicant has not met the onus to establish entitlement to the unapproved amount in the psychological treatment plans.
5To 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.
6The dispute for all three disputed treatment plans lies in the professional rate paid to the treatment provider. Neither party disputes the necessity of the treatment plans in general. The applicant is claiming $149.62, the rate for a psychologist. Meanwhile, the respondent is claiming that the services are being conducted by a psychotherapist, versus a psychologist. The respondent has agreed to pay $99.75 per hour for all sessions.
7The applicant submits the that the work is being conducted by a psychotherapist, which is a highly regulated profession. To support their argument that a psychotherapist should be paid the same as a psychologist, the applicant cites J.V. and Intact Insurance Company, 2019 CanLII 76995 (ON LAT). J.V. established that a psychotherapist doing essentially similar work to a psychologist was entitled to be paid at the same rate as a psychologist.
8The applicant also cites A.S and Aviva Insurance Company, 2019 CANLII 51335 (ON LAT), which determined that if psychotherapists and psychologists are doing the same behaviour therapy, they should be paid the same hourly rate.
9The respondent submits that unregulated psychological providers are entitled to $58.19 per hour, but that it has agreed to pay a higher rate of $99.75 per hour.
10To support its position, the respondent refers to the Professional Services Guideline No.03/14 (“Guideline”) from the Financial Services Commission of Ontario, submitting that the Guideline establishes the maximum hourly rate payable by automobile insurers under the Schedule related to services provided by health care professions, or health care providers listed within the Guideline. Insurers are not prohibited from paying above any maximum amount or hourly rate established in the Guideline.
11It is also noted within the Guideline that services provided by health care professionals/providers, unregulated providers and other occupations not listed within the Guideline are not covered by the