Mohamed Babiker v. Security National Insurance Company, 2025 CanLII 111699

Citation: Babiker v. Security National Insurance Company, 2025 ONLAT 23-014453/AABS

Licence Appeal Tribunal File Number: 23-014453/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:

Mohamed Babiker

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kathleen Wells

APPEARANCES:

For the Applicant:

Nidhi Vinayak, Counsel

For the Respondent:

James Kolumbus, Counsel

HEARD:

By way of written hearing

OVERVIEW

1Mohamed Babiker, the applicant, was involved in an automobile accident on October 18, 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, Security National Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

Preliminary Issues

2The preliminary issues in dispute are:

1. Is the applicant barred from proceeding to a hearing for the income replacement benefit (IRB) because the applicant failed to dispute their denial within the 2-year limitation period?
2. Is the applicant barred from proceeding to a hearing for the treatment plans for chiropractic services and a chronic pain assessment, both submitted on February 17, 2023, due to a conflict of interest?

Substantive Issues

3The substantive issues in dispute are:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?
2. Is the applicant entitled to an income replacement benefit of $400.00 per week from November 26, 2021 to date and ongoing?
3. Is the applicant entitled to $2,859.16 ($4,141.35 less $1,282.19 approved)for physiotherapy services proposed by Vincenzo De Luca, Andrea Reis and Roja Rohani in an OCF-18/treatment plan (“treatment plan”) submitted November 19, 2021?
4. Is the applicant entitled to $3,065.00 for physiotherapy services proposed by Oscar Manias in a treatment plan submitted January 3, 2022?
5. Is the applicant entitled to $2,507.89 for a psychological assessment proposed by Mandeep Singh in a treatment plan submitted January 12, 2022?
6. Is the applicant entitled to $8,117.72 for chiropractic services proposed by Tobias Chung, Lixia Li, Yingling Lin and Spinocare in a treatment plan submitted February 17, 2023?
7. Is the applicant entitled to $4,373.10 for a chronic pain assessment proposed by Tobias Chung, Joseph Kwok and Meditecs in a treatment plan submitted February 17, 2023?
8. Is the applicant entitled to $200.00 for the completion of an OCF-3 in an OCF-21 B submitted January 7, 2022?
9. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
10. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that:

1. The applicant is barred from bringing an application for an IRB pursuant to s.55 of the Schedule.
2. The applicant’s injuries are predominantly minor, and he is subject to the MIG, and its $3,500.00 spending limit.
3. The remaining amount of $2,859.16 in the treatment plan submitted on November 19, 2021 is payable in accordance with s. 38(11).
4. The treatment plan for physiotherapy services submitted on January 3, 2022 is not payable.
5. The treatment plan for a psychological assessment submitted on January 12, 2022 is not payable.
6. The treatment plan for chiropractic services submitted on February 17, 2023 is payable in accordance with s.38 (11).
7. The treatment plan for a chronic pain assessment submitted on February 17, 2023 is payable in accordance with s. 38 (11).
8. The applicant is not entitled to $200.00 for the completion of an OCF-3 in an OCF-21 B dated January 7, 2022.
9. The applicant is entitled to interest on any outstanding payments in accordance with s.51.
10. The applicant is not entitled to an award.

ANALYSIS

Preliminary Issues

Is the applicant barred from bringing an application for an IRB?

5I find that the applicant is barred from bringing an application for an IRB because he failed to bring an application within the two-year limitation period in accordance with s.55(1).

6An 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.

7If the respondent’s denial satisfies these requirements, then the onus is on the applicant to establish reasonable grounds for an extension under Section 7 of the Licence Appeal Tribunal Act, 1999 (“LAT Act”).

8The respondent submits that the applicant is statute-barred from bringing an application for an IRB because the respondent provided a valid denial notice to the applicant on November 26, 2021, and the application was filed on November 29, 2023, outside of the two-year limitation period.

9The applicant submits that the respondent’s November 26, 2021 denial letter was not a valid notice because the respondent did not provide clear evidence of fraud or intentional misrepresentation by the applicant. The applicant relies on 23-001028 v. Aviva Insurance Canada, CanLII 34612 (ON LAT) (“23-001028 v. Aviva”), in which the Tribunal held that the applicant was entitled to respondent had not provided clear evidence that the applicant had failed to notify the insurer of a material change in risk to the contract. I am not bound by Tribunal decisions and I find that 23-001028 v. Aviva is distinguishable from the present case because 23-001028 v. Aviva was a decision with respect to whether the applicant was excluded from entitlement to IRBs, and in the present case, the question before me is whether the denial notice was sufficient and triggers the limitation period. I find that the provision of evidence is not a requirement for a proper denial as set out in Smith v. Cooperators, and as such, I find 23-001028 v. Aviva is not helpful to my analysis.

10I find that the denial letter, dated November 26, 2021, which references both the OCF-1 and the OCF-3, is compliant with s.36(4) of the Schedule, and starts the limitation clock, because it is a clear and unequivocal denial. The denial letter refers the applicant to the November 18, 2021 Explanation of Benefits (“EOB”) that the respondent sent in response to the OCF-1. The EOB sets out that the accident is subject to an ongoing investigation because the applicant provided information to the respondent that the vehicle was being used for commercial purposes, and the applicant is not eligible for an IRB and other specified benefits in accordance with s. 31(1)(b) of the Schedule, and included the text of s.31(1)(b):

“As per SABS S.31 (1) The Insurer is not required to pay an income replacement benefit, a non-earner benefits or a benefit under section 21(Lost educational expenses), 22(Expenses of visitors) or23(Housekeeping and home maintenance),

(b) in respect of any person who has made, or who knows of, a material misrepresentation that induced the insurer to enter into the contract of automobile insurance or who intentionally failed to notify the insurer of a change in a risk material to the contract;”

11The November 26, 2026 denial letter explains that the investigation into the accident is ongoing, and that the applicant is not eligible for an IRB and other specified benefits in accordance with s. 31(1)(b), and sets out the text of s. 31(1)(b). The letter also provided information with respect to the applicant’s right to dispute the denial, and the process and timelines to do so. As such, I find that the November 26, 2021 denial letter is valid, and triggers the limitation period.

12The applicant filed the application on November 29, 2023, which is outside of the two-year limitation period. The applicant did not make any submissions with respect to Section 7 of the LAT Act, or request an extension of time.

13For these reasons, I find that the applicant is barred from bringing his application for an IRB.

Is the applicant barred from proceeding to a hearing for the treatment plans for chiropractic services and a chronic pain assessment submitted on February 17, 2023?

14The applicant is not barred from proceeding to a hearing for the treatment plans for chiropractic services and a chronic pain assessment both submitted on February 17, 2023.

15The respondent submits that the applicant should be barred from bringing the application because the owner of Masgras Professional Corporation, which is the law firm of the applicant’s counsel, has a conflict of interest a spousal relationship with the owner of Meditecs and Spinotec, which are the applicant’s treatment providers and the proposers of the treatment plans in question.

16The respondent relies on the Divisional Court Decision Ashrafian v Kavarana, 2023 (“Ashrafian”) which found a conflict of interest between Masgras Professional services and Meditecs and Spinotec. I find that the cases are distinguishable because in Ashrafian the dispute related to the admissibility of evidence with the assessment of costs in a tort matter, while the present case relates to the applicant’s entitlement to medical and rehabilitation benefits.

17The applicant submits that the respondent has not provided any evidence to support the existence of a conflict of interest. I agree with the applicant. The respondent has not provided any evidence related to the circumstances of the present case. Further, the respondent has not identified the legislative authority that permits me to bar the applicant from proceeding to a hearing for treatment plans based on a conflict on interest.

18As such, I find that the applicant is not barred from proceeding to a hearing for the treatment plans submitted on February 17, 2023.

Substantive Issues

The applicant remains within the MIG

19I find that the applicant’s injuries are predominantly minor, therefore he is subject to the MIG and its $3,500.00 funding limit.

20Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” 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.”

21An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

22The applicant submits that he should be removed from the MIG because he suffers from serious physical injuries and a psychological impairment as a result of the accident. The applicant relies on the OCF-3 of Dr. Vincenzo De Luca, and the clinical notes and records(“CNRs”) of his family doctor, Dr. Alaa Alasadi.

23The applicant also submits that he should be removed from the MIG “by operation of s.38(11)”, because none of the denial letters for the treatment plans in dispute were compliant with s.38(8).

24The respondent argues that the applicant has not met his onus to prove that he sustained physical or psychological injuries that warrant his removal from the MIG. The respondent relies on the October 21, 2022 s.44 examination (“IE”) reports of Dr. Ahmad Belfon, physician, and Dr. Amena Syed, psychologist.

Physical injuries

25I find that the applicant has not established on a balance of probabilities that his accident-related injuries warrant his removal from the MIG.

26The applicant submits that his accident-related injuries are complex, have had an impact on his life, and fall outside of the MIG. The OCF-3 reveals that the applicant was diagnosed with whiplash disorder, neck pain, sprains and strains of the thoracic and lumbar spine, and bilateral knee contusions with myofascial quadricep pain. The OCF-3 is consistent with the CNRs of Dr. Alasadi, dated, who referred to the applicant’s accident-related injuries as “whiplash-like injuries” and “sprains,” on December 5, 2022. The OCF-3 was also consistent with Dr. Belfon’s October 21, 2022 IE report in which Dr. Belfon opined that the applicant suffered sprains and strains to the cervical spine, thoracic spine, and lumbar spine, which I find fall squarely within the s. 3 definition of a minor injury and therefore fall within the MIG.

27As the applicant has not directed me to any evidence that he sustained physical injuries which fall outside of the MIG, I find that the applicant has not met his onus to prove on a balance of probabilities that his accident-related physical injuries warrant his removal from the MIG.

Psychological Impairment

28I find that the applicant has not established on a balance of probabilities that he has a psychological impairment warranting removal from the MIG as a result of the accident.

29The applicant submits that he should be removed from the MIG because he is suffering from psychological symptoms as a result of the accident including anxiety and sleeping problems that are affecting his function. The respondent argues that the applicant has not met his onus to prove that he has a psychological impairment related to the accident.

30I agree with the respondent. In his OCF-3, Dr. De Luca identified that the applicant was experiencing non-organic sleep disorders, nightmares, and anxious distress as a result of the accident, however the OCF-3 is not corroborated by any contemporaneous evidence to support that these impairments are as a result of the accident. The applicant directed me to the applicant’s self-reports to Dr. Syed, his s. 44 assessor, but as the respondent notes, Dr. Syed opined in her October 21, 2022 IE report that there was no objective evidence to support the applicant’s “subjective self-report of psychological impairment” as a result of the accident.

31The respondent notes that the applicant first complained of psychological symptoms to his family doctor in September 2023, almost 2 years after the accident, when the applicant reported to Dr. Alasadi that he had been experiencing psychological symptoms including low mood since the accident. Dr. Alasadi diagnosed the applicant with depression, and referred the applicant to CAMH for an evaluation, and prescribed anti-depressants. However, the applicant has not directed me to any evidence of subsequent complaints, diagnoses, or treatment of the applicant’s psychological symptoms. Further, the applicant has not directed me to medical or other evidence to corroborate the applicant’s self-reports to Dr. Alasadi and Dr. Syed that his psychological symptoms were related to the accident.

32For the reasons above, I find that the applicant has not met his onus to prove on a balance of probabilities that he has a psychological impairment as a result of the accident.

33The applicant remains subject to the MIG and its $3,500.00 funding limit.

34As I have found that the applicant remains within the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.

35I will consider the applicant’s submissions that none of the respondent’s denials of the treatment plans in dispute are compliant with s.38(8).

S.38

36Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.

37If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
2. The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

38The applicant further submits that a non-compliant notice in accordance with s. 38(8) results in the applicant’s removal from the MIG, because one of the consequences set out in s. 38(11) is that an insurer is “prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.”

39However, I am bound by the Divisional Court decision in Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707, wherein the Court held that s. 38 refers to the specific treatment plan in question, and s. 38(11) does not impose a permanent prohibition on an insurer with regard to the MIG.

40Therefore, a finding that one or more of the treatment plans in dispute is non-compliant with s.38(8) does not trigger the applicant’s removal from the MIG, it only prevents the respondent from taking the position that the MIG applies to that treatment plan.

Is the applicant entitled to $2,859.16 ($4,141.35 less $1,282.19 approved) for physiotherapy services treatment plan submitted November 19, 2021?

41I find that the respondent’s December 3, 2021 partial denial letter is not compliant with s.38(8), and that the treatment plan is payable in accordance with s. 38(11).

42The respondent issued a letter on December 3, 2021 approving $1,282.19 and denying $2,859.16 for physiotherapy services in a treatment plan submitted November 19, 2021.

43The applicant submits that the denial letter does not comply with s.38(8) because it does not provide sufficient medical reasons. The respondent argues that the denial letter is valid.

44I agree with the applicant. The December 3, 2021 denial letter identifies the MIG limit as a reason for the partial denial, but does direct the applicant to a definition of the MIG or a minor injury in the Schedule. Additionally, the denial does not identify the applicant’s injuries or indicate that the respondent requires any further information about the applicant’s injuries, that the respondent requires. As such, I find it lacks the specificity required by s.38(8), and s. 38(11) is engaged.

45As neither party has directed me to a subsequent notice, I find the treatment plan is payable, once incurred and properly invoiced.

Is the applicant entitled to $3,065.00 for physiotherapy services in a treatment plan submitted January 3, 2022 and is the applicant entitled to $2,507.89 for a psychological assessment in a treatment plan submitted January 12, 2022?

46I find that the respondent’s January 18, 2022 denial letter is compliant with s.38(8), and the treatment plans are not payable.

47The respondent issued a letter on January 18, 2022 denying $3,065.00 for physiotherapy services in a treatment plan submitted on January 3, 2022 and $2,507.89 for a psychological assessment in a treatment plan submitted on January 12, 2022.

48The applicant submits that the denial letter is invalid because it does not contain sufficient medical reasons. The respondent argues that it is compliant with s. 38(8).

49The January 18, 2022 denial letter identifies the treatment plans, and identifies the MIG as a medical reason for the denial. While it does not identify the applicant’s injuries, it notes that the respondent has no compelling medical information on file to support the treatment plans, and requests specific medical records it requires under s.33 of the Schedule. I find that the denial letter is a clear and unequivocal denial, and it is sufficiently detailed and understandable for an unsophisticated person to decide whether to dispute the denial.

50As I have found that the January 18, 2022 denial letter is compliant with s. 38(8), s. 38(11) is not engaged. Therefore, the treatment plans are not payable.

Is the applicant entitled to $8,117.72 for chiropractic services in a treatment plan submitted February 17, 2023?

51I find that the respondent’s February 21, 2023 denial letter is not compliant with s. 38(8) and the treatment plan is payable under s. 38(11).

52The applicant issued a letter on February 21, 2023 denying $8,117.72 for chiropractic services in a treatment plan dated February 17, 2023.

53The applicant submits that the denial letter is not compliant with s. 38(8) because it does not contain sufficient medical reasons. The respondent counters that it is a valid denial because it relies on the IE reports of Dr. Belfon and Dr. Syed.

54I agree with the applicant. The denial letter does not identify the applicant’s injuries, or any additional information the applicant requires. While it relies on one-sentence summaries of the two IE reports, it does not differentiate between the psychological and physical IE reports or indicate that the correspondence or the IE reports are attached. Further, I find the denial letter confusing because it refers to a psychological condition, while the treatment plan is for chiropractic services.

55For these reasons, I find the notice lacks the specificity required for an unsophisticated person to decide whether to dispute the denial. As I have found that the denial letter is not compliant, s.38(11) is engaged. As neither party has directed me to a subsequent denial, the treatment plan is payable, once incurred and properly invoiced.

Is the applicant entitled to $4,373.10 for a chronic pain assessment in a treatment plan submitted February 17, 2023?

56I find that the respondent’s denial letter dated February 17, 2023 is not compliant with s.38(8) and the treatment plan for $4,373.10 for a chronic pain assessment dated February 11, 2023 and submitted on February 17, 2023 is payable in accordance with s.38(11).

57The applicant submits that the denial letter is not compliant with s. 38(8) because it does not contain sufficient medical reasons. The respondent counters that it is a valid denial because it relies on the IE reports of Dr. Belfon and Dr. Syed.

58The wording of the denial letter is identical to the February 21, 2023 notice which I found was not compliant with s. 38(8), because it lacked the specificity required for an unsophisticated person to decide whether to dispute the denial. As such, I find the February 17, 2023 denial letter does not comply with s.38(8), and s.38(11) is engaged.

59As neither party has directed me to a subsequent denial notice, I find the treatment plan is payable in accordance with s.38(11), once incurred and properly invoiced.

Is the applicant entitled to $200.00 for the completion of an OCF-3 in an OCF-21 submitted January 7, 2022?

60I find that the applicant has not established on a balance of probabilities that the $200.00 for the completion of an OCF-3 is reasonable and necessary.

61The applicant submits that respondent should pay for the completion of the OCF-3, because he needs it to assess his condition and support his claims, and it is essential to the applicant’s treatment and recovery plan.

62The respondent argues that the OCF-3 is not reasonable and necessary because it was not requested or approved by the respondent, and that the expense was incurred six weeks after the applicant’s initial OCF-3 was submitted on November 22, 2021 and within the period of disability set out therein.

63I agree with the respondent. The applicant has not explained why he needed a second OCF-3, particularly since only six weeks had lapsed since his first OCF-3. As a result, I find that the applicant has not met his onus to prove on a balance of probabilities that the payment for the preparation of the OCF-3 submitted on January 7 is reasonable and necessary.

64Accordingly, the applicant is not entitled to payment of the invoice for the preparation of the OCF-3 in an OCF-21 dated January 7, 2022.

Interest

65The applicant is entitled to interest on any outstanding payments in accordance with s.51 of the Schedule.

Award

66The 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.

67As the applicant has not provided particulars or any submissions with respect to an award, I find the applicant has not met her onus to prove that he is entitled to an award.

ORDER

68I find that:

1. The applicant is barred from bringing an application for an IRB pursuant to s.55 of the Schedule.
2. The applicant’s injuries are predominantly minor, and he is subject to the MIG, and its $3,500.00 spending limit.
3. The remaining amount of $2,859.16 in the treatment plan submitted on November 19, 2021 is payable in accordance with s. 38(11).
4. The treatment plan for physiotherapy services submitted on January 3, 2022 is not payable.
5. The treatment plan for a psychological assessment submitted on January 12, 2022 is not payable.
6. The treatment plan for chiropractic services submitted on February 17, 2023 is payable in accordance with s.38 (11).
7. The treatment plan for a chronic pain assessment submitted on February 17, 2023 is payable in accordance with s. 38 (11).
8. The applicant is not entitled to $200.00 for the completion of an OCF-3 in an OCF-21 B dated January 7, 2022.
9. The applicant is entitled to interest on any outstanding payments in accordance with s.51.
10. The applicant is not entitled to an award.