Lin v. Aviva Insurance Company of Canada, 2025 CanLII 108597

Citation: Lin v. Aviva Insurance Company of Canada, 2025 ONLAT 23-014795/AABS

Licence Appeal Tribunal File Number: 23-014795/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:

YuHong Lin

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Aric Bhargava

APPEARANCES:

For the Applicant: Rakesh Sharma, Counsel

Submitted by: Lamisa Chaudhury, Counsel

HEARD: By way of written submissions

OVERVIEW

1YuHong Lin, the applicant, was involved in an automobile accident on May 16, 2022, 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

[2] The issues in dispute are: i. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from June 13, 2022 to ongoing? ii. Is the applicant entitled to interest on any overdue payment of benefits? iii. Is the respondent liable to pay an award under s. 10 of Reg 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3The applicant is not entitled to a non-earner benefit.

4The applicant is not entitled to interest in accordance with s. 51 of the Schedule.

5The respondent is not liable for an award.

ANALYSIS

The applicant is not entitled to non-earner benefits

6I find the applicant has not met his burden to prove entitlement to a non-earner benefit.

7Section 12(1) of the Schedule provides that an insurer shall pay NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) of the Schedule defines a complete inability to carry on a normal life as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which generally focuses on a comparison of the applicant’s pre- and post-accident activities.

8The applicant submits he has suffered a complete inability to carry on normal life and relies on the OCF-1 dated June 1, 2022, and the OCF-3 dated June 20, 2022. The applicant also submits s. 36(4) of the Schedule entitles him to NEBs when he submits a completed OCF-1 and OCF-3.

9The respondent submits the applicant does not suffer a complete inability to carry on a normal life as a result of the accident. The respondent relies on the section 44 multidisciplinary insurer’s examination assessment reports, dated November 29, 2022, completed by Nicholas Livadas, occupational therapist, Dr. Sarah Talebizadeh, psychologist, and Dr. Shafik Dharamshi, general practitioner.

10The applicant has not directed me to evidence depicting a change in his ability to engage in a normal life nor has ne offered submissions to support his entitlement to the benefit under Heath. The applicant’s evidence is limited to the OCF-3/Disability Certificate by Henry Chan, physiotherapist, which does not contain a comparison of his pre- and post-accident activities and his ability to participate in them, as required by Heath. I find that this document is outweighed by the respondent’s evidence because the s. 44 insurer examination report by Mr. Livadas includes a comparison of his pre and post-accident normal life activities. Mr. Livadas states the applicant demonstrated functional strength in all muscle groups, functional range of motion in the neck, shoulders, trunk, upper extremities below the shoulders and lower extremities, functional mobility for sitting, transferring, walking, dynamic standing, static standing, squatting, and kneeling.

11I am further persuaded by Mr. Livadas’ s. 44 report because the applicant’s disability certificate identifies no pre-accident activities that the applicant is unable to engage in or that he values. I find there are also inconsistencies in the applicant’s OCF-1 and OCF-3 that were not explained in the applicant’s submissions. For example, in the OCF-1 the applicant indicates he is a caregiver, however, the OCF-3 notes he is not a caregiver. The absence of a comparison of the applicant’s pre and post accident activities and an analysis into whether he is able to engage in them is fatal to the applicant’s claim for entitlement to an NEB.

12I further find Mr. Livadas’ s. 44 report is corroborated by Dr. Talebizadeh’s s. 44 psychology report and Dr. Dharamshi’s s. 44 physician report. While the s. 44 reports diagnose the applicant with major depressive disorder with anxious distress the reports also find the applicant does not suffer a complete inability to carry on a normal life and that he can participate in all his pre-accident activities of daily living, including his job duties, self-care, contributing to housekeeping duties, and childcare, albeit with some assistance from family. I agree with this because the applicant is independent and engaged in his self-care and, although it is to a lesser extent, he continues to contribute to child-care.

13Turning to the procedural requirements of s. 36(4) of the Schedule, I find the applicant has not established that they are entitled to an NEB on the basis that the respondent was non-compliant with s. 36(4).

14Section 36(4) provides that within ten business days after receiving an application and completed disability certificate, the respondent shall pay the benefit, give notice of the medical and any other reasons why it will not pay the benefit, or request additional information pursuant to s. 33(1) or 33(2) of the Schedule.

15If an insurer fails to comply with s. 36(4) within the ten business day time limit, s. 36(6) states that it must pay the specified benefit until a notice in accordance with s. 36(4)(b) is given. However, pursuant to s. 33(6) of the Schedule, the insurer is not liable to pay a benefit during any period in which the claimant fails to provide the insurer with the information requested pursuant to s. 33.

16The respondent submits it complied with s. 36(4) of the Schedule and it referred to the medical information it lacked to determine his entitlement to NEBs and it relies on the correspondence dated June 30, 2022 and December 5, 2022 in support. The applicant did not direct me to evidence to support when the OCFs were submitted.

17I find that the June 30, 2022 explanation of benefits fulfills the requirements of s. 36(4)(b), namely that the respondent requires an insurer’s examination for a medical opinion on the applicant’s entitlement to NEBs is valid reasoning and compliant with the requirements.

18In sum, I find the applicant has not met his onus pursuant to Heath and the evidence he relies on has inconsistencies that undermine his claim. Further, the applicant has not demonstrated that he has a complete inability to engage in a normal life because he is engaged in his self-care, contributes to child-care and housekeeping chores and he is deemed to be able to perform his job duties and his recreational activities. In my view, the applicant has not demonstrated that he suffers a complete inability to carry on a normal life or that he is prevented from engaging in substantially all of his normal activities from before the accident.

19I find the applicant is not entitled to NEBs.

Interest

20Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the applicant is not entitled to NEBs, there is no interest payable.

Award

21I find no award is payable.

22The applicant seeks 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

23The applicant submits the respondent unreasonably withheld the NEB payments. The applicant did not direct me to evidence of this and his reply submissions are silent on this issue.

24I find an award is not appropriate as I have found the applicant is not entitled to an NEB and therefore, it follows that the respondent did not unreasonably withhold or delay the payment of benefits. As a result, no award is payable.

ORDER

25I find the applicant is not entitled to a non-earner benefit.

26No interest is payable.

27The respondent is not liable for an award.

28The application is dismissed.