Licence Appeal Tribunal File Number: 24-000218/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:
Shamsheen Shiwprashad
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Jeff Chatterton
APPEARANCES:
For the Applicant:
Michael Rotondo, Counsel
For the Respondent:
Catherine H Zingg, Counsel
HEARD:
In Writing
OVERVIEW
1Shamsheen Shiwprashad, the applicant, was involved in an automobile accident on May 1, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Aviva General Insurance Company, 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 a non-earner benefit of $185.00 per week from November 1, 2015 to date and ongoing?
ii. Is the respondent liable to pay an award under s.10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
3The respondent originally raised an issue related to whether the applicant is barred from proceeding to a hearing because they failed to dispute their denial within the 2-year limitation period per s.56 of the Schedule. The respondent subsequently withdrew this issue in dispute.
RESULT
4The applicant has not, on the balance of probabilities, established entitlement to a non-earner benefit. Neither an award nor interest are payable. The application is dismissed.
PROCEDURAL ISSUES
5The applicant raised a challenge under Rule 10.4 of the Licence Appeal Tribunal Rules, 2023, opposing the respondent introducing and relying upon four expert reports which were conducted on the applicant at the time of the initial claim. These four expert reports are:
a. Functional Abilities Evaluation – John Duong, Occupational Therapist, dated Oct. 28, 2015,
b. Work Demands Analysis – John Duong, Occupational Therapist, dated Oct. 28, 2015,
c. Medical Physician Assessment – Dr. Ijaz Chaudhry, Family Physician, dated Oct. 28, 2015, and
d. Orthopaedic Surgeon Assessment – Dr. Ato Sekyi-Otu, Orthopaedic Surgeon, dated Feb. 18, 2016.
6The applicant submits that these reports were conducted to determine eligibility for income replacement benefits or eligibility for the Minor Injury Guideline, versus non-earner benefits. The applicant argues the reports are not relevant to the issues in dispute and should be withdrawn.
7The respondent submits the Tribunal has the statutory authority to admit the reports as evidence, as per s.15(1)(b) of the Statutory Powers and Procedures Act.
8I note that although the applicant refers to Rule 10.4, as set out in Rule 10.1, this Rule applies to expert witnesses. In summary, I see no reasons to exclude the reports or prevent the respondent from relying on them. The reports were filed in compliance with the Case Conference Report and Order dated May 31, 2024 and the applicant had notice of them. Further, in my opinion, the expert reports are relevant because they provide insight into the applicant’s condition at the time of the claim.
9For this reason, I have denied the applicant’s request to bar the respondent from relying on these expert reports as evidence.
ANALYSIS
Context and History of the claim
10The applicant was injured in a motor vehicle accident on May 1, 2015, and was unable to return to her employer. She completed an OCF-1 on June 19, 2015.
11On June 23, 2015, the respondent acknowledged receipt of the OCF-1 and OCF-2, but requested an OCF-3 and a statement from Employment Insurance to determine eligibility.
12On August 25, 2015, the applicant’s chiropractor, Dr. Bhalesar, provided the respondent with a completed OCF-3. This OCF-3 endorsed entitlement to the specified benefits of both Non-Earner Benefits (“NEBs”) and Income Replacement Benefits (“IRBs”).
13On September 4, 2015, the respondent issued an Explanation of Benefits which stated that based upon the paperwork submitted, the applicant was eligible for IRBs, while also requesting s.44 assessments.
14The applicant received IRBs from May 3, 2015 until she returned to work September 9, 2015, in the amount of $6,800.00.
Did the respondent issue a proper denial for NEBs?
15The applicant is not entitled to NEBs.
16The applicant submits that when she applied for statutory benefits, she submitted an OCF-3 stating that she was eligible for both IRBs and NEBs. Subsequently, the respondent only responded to the issue of IRBs, and they did not issue a proper denial for NEBs.
17The applicant relies on the Ontario Court of Appeal decision in Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508 (“Galdamez”), which held that an insured person is not precluded from receiving NEBs unless the person satisfies both prongs of the IRB test – employment status and disability status.
18The applicant argues that accordingly, the applicant became eligible for NEBs once the respondent determined that she was no longer eligible for IRBs because she returned to work and no longer met the IRBs disability threshold.
19Furthermore, the applicant submits that according to s.36(4) of the Schedule, the respondent is now in a ‘must pay’ situation because it did not issue a proper denial for NEBs within ten business days.
20Section 36(4) of the Schedule sets out that within 10 business days after the insurer receives the application and completed OCF-3, it shall pay the specified benefit; give the applicant a notice explaining the medical and any other reasons why it does not believe the applicant is entitled to the benefit and, if the insurer requires a s. 44 examination, advise the applicant of the requirement for an examination; or send a request to the applicant under s. 33(1) or (2).
21It is the respondent’s position that a NEB was properly denied because such a denial is implied when the applicant applied for, and was granted, IRBs.
22The respondent relies upon Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78, submitting that Varriano establishes the modern approach to statutory interpretation, and requires statutes to be read in their entire context.
23To wit, the respondent submits that we must read s.12 of the Schedule, which sets out the eligibility requirements for NEBs, along with the provisions of s.36, versus reading s.36 in isolation.
24The respondent submits that the applicant being employed at the time of the accident and reported an inability to perform the essential tasks of that employment, so she was clearly eligible for IRBs. The fact that the applicant received IRBs is not in dispute.
25In summary, they submit that the two benefits are mutually exclusive, and there was no entitlement to a NEB given she qualified for IRBs.
26I agree with the respondent. When the applicant checks a box asking for both IRBs and NEBs, they are, in effect, claiming anything they can. When the applicant received IRBs, this indicates to me that the insurer is adjusting the file in good faith and offering the more advantageous benefit to the applicant. The denial of NEBs is implied, with the understanding that the applicant has been accepted for higher quantum IRBs. This acceptance implies denial of NEBs.
27The applicant relies on Galdamezfor the proposition that an insured may qualify for IRBs but claim NEBs. I find Galdamez distinguishable as it dealt with the previous version of the Schedule, i.e. Statutory Accident Benefits Schedule — Accidents on or After November 1, 1996 O. Reg 403/96. In Galdamez, the insured applied for and was paid IRBs. She returned to work and her insurer stopped further IRB payments. She then elected NEBs. The insurer took the position that, since she had qualified for IRBs, she could not apply for NEBs. The Court of Appeal disagreed and held that could qualify for both IRBs and NEBs and apply for each serially.
28That version of the Schedule did not provide for an irrevocable election. By enacting a provision for an irrevocable election in the Schedule, as seen in s.35 and 35(3), the Legislature made clear its intention that receipt of an either of NEBs or IRBs were mutually exclusive.
29For this reason, and because both the applicant and the respondent agree the insured received IRBs before successfully returning to her place of employment, I find on the balance of probabilities the applicant has not met her onus to prove that the insurance company improperly denied her NEBs.
Is the applicant entitled to NEBs pursuant to s. 12(1)?
30The applicant has not met the onus to establish eligibility for a non-earner benefit.
31Section 12(1) provides that an insurer shall pay NEBs 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) 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, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
32In their submission, the applicant states that although it may be difficult for a person who was employed at the time of an accident to satisfy the NEBs disability test while failing to satisfy the IRBs disability test, on policy grounds this outcome supports the legislative purpose to “provide compensation to persons who have suffered a severe diminution in their overall quality of life, even though they may be able to continue to work.”
33To support their claim, the applicant relies upon the report of Dr. Franco Tavazzani, an orthopedic surgeon. In his report of March 7, 2019, Dr. Tavazzani outlines the applicant’s pre and post-accident condition, noting chronic pain, myofascial pain, a bilateral knee injury and an exacerbation of degenerative changes.
34The respondent argues that the applicant does not meet the legal test to warrant eligibility for NEBs, specifically, the ‘complete inability to carry on a normal life.’ To support their claim, they point to the fact that the applicant willingly returned to work, despite ongoing eligibility for IRBs.
35The respondent relies on an Occupational Therapy report by Occupational Therapist J. Duong, authored October 1, 2015. The report states that the applicant has resumed housekeeping around the house, drives herself to and from work for up to one to two hours at a time, and that she ‘demonstrated inconsistencies’ during the Insurers Examination, implying she may not accurately be demonstrating maximal recovery.
36I find that the applicant is not entitled to NEBs because the evidence shows she returned to work, was able to perform all self care, drove her own vehicle and participated in her own domestic housekeeping. In my view, the applicant has not demonstrated that she has an impairment that continuously prevents her from engaging in substantially all of the activities in which she ordinarily engaged before the accident.
37For these reasons, I find that on a balance of probabilities, the applicant has not met the onus to demonstrate entitlement to NEBs.
Interest
38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.
Award
39The 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. As no benefits were unreasonably withheld or delayed, no award is payable.
ORDER
40The application is dismissed.
41The applicant is not entitled to non-earner benefits.
42No interest or award are payable.
Released: October 24, 2025
Jeff Chatterton
Adjudicator