Citation: Cunningham v. Certas Home and Auto Insurance Company, 2025 ONLAT 24-012392/AABS

Licence Appeal Tribunal File Number: 24-012392/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:

Julie Cunningham

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Caley Howard

APPEARANCES:

For the Applicant: Julie Cunningham, Applicant (self-represented)

For the Respondent: Brittanny K Tinslay, Counsel

Hearing Reporter: Leigh Masse

Heard by Videoconference: September 16 and 17, 2025

OVERVIEW

1Julie Cunningham, the applicant, was involved in an automobile accident on December 25, 2017, 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, Certas Home and Auto Insurance, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

Procedural issue

2The respondent filed a motion dated July 18, 2025 seeking a further case conference to address the issue of whether the Tribunal had the jurisdiction to determine whether the applicant falls within the Minor Injury Guideline (MIG) in the absence of a related underlying dispute. By order dated July 29, 2025, Adjudicator Christopher Yan denied the request for a further case conference to deal with the jurisdiction issue, finding that the issue could be addressed at the hearing.

3The respondent requested at the outset of the hearing that I consider its submissions with respect to this issue. I have done so as set out below.

ISSUES

4The issues in dispute are:

i. 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 MIG limit?

ii. Is the applicant entitled to an income replacement benefit (IRB) in the amount of 400.00 per week from January 1, 2018 to date and ongoing?

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?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5With respect to the remaining substantive issues, I find that:

i. The Tribunal does not have the jurisdiction to determine MIG as a standalone issue;

ii. The applicant is not entitled to an IRB;

iii. The respondent is not liable to pay an award under s. 10 of Reg. 664; and

iv. As there are no overdue benefits, the applicant is not entitled to interest.

ANALYSIS

Tribunal’s jurisdiction to determine MIG in the absence of a related underlying dispute

6I find that the Tribunal does not have the jurisdiction to determine MIG in the circumstances of this application, as there is no related underlying dispute.

7The respond submits that the Tribunal does not have the jurisdiction to determine MIG as the application does not include a dispute involving the applicant’s entitlement to a statutory accident benefit, or the amount of a statutory accident benefit to which the applicant is entitled, that is related to a MIG determination, such as a medical and rehabilitation benefit. The respondent submits that the claim for IRB does not require a MIG determination and therefore the MIG determination has no related underlying dispute in this application. The respondent relies on the decisions of Bobak v. Travelers Insurance, 2022 CanLII 146 (ON LAT) (“Bobak”) and Rogh v. Aviva Insurance Canada, 2023 CanLII 40141 (ON LAT) (“Rogh”) in support of its position.

8The applicant made no submissions on the issue.

9In Bobak, Adjudicator Lester found that the Tribunal did not have jurisdiction to hear the issue of the MIG unless it was tied to a benefit that required a determination of the MIG. This decision was based on s. 280(1) and (2) of the Insurance Act, which limit the Tribunal’s jurisdiction to the “resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.” Adjudicator Lester found that an individual whose injuries have been classified as minor can apply for benefits up to the MIG limits, but this does not entitle to person to a benefit or grant them an amount of a benefit. As a result, she concluded that MIG determination was not a dispute as contemplated under s. 280 of the Insurance Act and so it could not be determined as a standalone issue.

10In Rogh, Vice-Chair Todd determined that in order for the Tribunal to have jurisdiction over a MIG determination, the MIG application must be accompanied by a related dispute for an entitlement to statutory accident benefits that require a MIG determination. In that case, an application for IRB was not considered to be a related issue because a MIG determination would not have any effect on the applicant’s claim for an IRB. The MIG determination was a standalone issue, despite the application for an IRB, and the Tribunal therefore lacked the jurisdiction to determine the MIG.

11While I am not bound by Tribunal decisions, I find the reasoning in Bobak and Rogh both persuasive and relevant to the issue at hand. Section 280 of the Insurance Act is clear that applications to the Tribunal may only be made to resolve a dispute in respect of a person’s entitlement to a statutory accident benefit or the amount of a benefit. The MIG is not a statutory accident benefit, but a guideline. The Schedule does not provide for an insured person to apply for a MIG determination on its own without a related underlying dispute.

12The Tribunal has no jurisdiction to make a MIG determination in this case.

The applicant is not entitled to an IRB

13I find that the applicant is not entitled to an IRB. I further find that an IRB is not payable pursuant to s. 36(4) of the Schedule.

Entitlement to an IRB

14To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

15The applicant submits that she is entitled to an IRB from the date of her disability certificate to date and ongoing, as she has been unable to work since the accident due to a concussion and post-concussion syndrome with chronic pain. She relies on her testimony, the OCF-3 disability certificate completed by Dr. Nilou Papini, dentist, dated December 6, 2022, a revised disability certificate dated December 20, 2022 and an OCF-3 disability certificate completed by Dr. Mark Dodds, physician, dated March 7, 2025. The applicant further relies on the records from Mackenzie Richmond Hill Hospital dated July 15, 2022, the Quinte Health Emergency Department record dated July 27, 2024, the clinical notes and records (CNRs) of Dr. Dodds and her income tax returns for the years 2016 to 2022.

16The respondent submits that the applicant has not proven that she meets the test for an IRB. The respondent submits that the applicant stopped working and applied for short term disability benefits several weeks before the accident. The respondent further submits that the applicant did not seek medical treatment for any accident-related injuries until July 15, 2022, which was four and a half years after the accident, well beyond the 104 weeks during which the applicant must suffer a substantial inability to perform the essential tasks of her employment. In support of its position, the respondent relies on the applicant’s Manulife short term disability file and the CNRs of Dr. Altin Reka, the applicant’s family doctor at the time of the accident.

17The applicant testified that at the time of the accident she was employed as a customer service representative at Canadian Tire. The essential tasks of her employment included answering incoming calls, directing those calls and addressing the complaints or requests of customers.

18The applicant further testified that during the accident she hit her head on the steering wheel and then hit her head again when she freed herself from the seatbelt, as the vehicle was upside down. She testified that she fractured a bone in her face and suffered a concussion and, subsequently, post-concussion syndrome. She testified that she continues to experience mild headaches on a daily basis and has been unable to return to work since the accident.

19I find that while the applicant was employed at the time of the accident, the employer’s records provided to Manulife for her short term disability application show that she was absent from work as of December 12, 2017, approximately two weeks prior to the December 25, 2017 accident.

20I further find that the CNRs of Dr. Reka show that the applicant attended Dr. Reka’s office on January 18, 2018 and asked him to complete some forms in support of her application for short term disability benefits. While she reported to Dr. Reka that she had been involved in an accident, she did not report any injuries as a result of the accident. Dr. Reka noted on the applicant’s short term disability application that her primary diagnosis was severe social stress and adjustment disorder (mother of three kids, dealing with custody issues). Under secondary diagnosis, Dr. Reka mentioned some unrelated health concerns and a “mild MVA.” The symptoms listed by Dr. Reka on the form were worry, stress, racing thoughts and inability to cope with social problems.

21The notes from a telephone conversation between a case manager at Manulife and the applicant on January 9, 2018, establish that the applicant advised Manulife that the reason for her absence from work was stress related to marital and parenting issues. The applicant did not mention the accident or any accident-related symptoms to the case manager on that date.

22The applicant confirmed in her testimony that she did not consult any other doctors about her accident-related injuries until July 2022, when she attended Mackenzie Richmond Hill Hospital. Beginning in July 2022, the applicant reported to several emergency room doctors, Dr. Reka and Dr. Dodds that she suffers from post-concussion syndrome as a result of the accident. However, I give less weight to these medical records because they are not contemporaneous with the period in dispute as they were not created within 104 weeks of the accident. The records are dependent on the applicant’s reports respecting the timing of her symptoms. I further find that the applicant’s reports respecting the weeks and months after the accident may no longer have been reliable after so many years had passed and I give these records less weight for this reason as well.

23The applicant testified that she was unable to obtain medical treatment before July 2022 because she did not have a family doctor, was unable to find a family doctor and whenever she asked a doctor to help her complete forms for the respondent, they refused. However, the applicant was able to attend Dr. Reka’s practice shortly after the accident and Dr. Reka completed forms for her short term disability application. I find that it was not until 2022 that Dr. Reka informed the applicant that she no longer qualified to be his patient, in part because she no longer resided in the region. The other attempts to have doctors complete forms for the respondent that the applicant testified about occurred in 2022 and later. As a result, I find that the applicant had access to a family doctor at the time of the accident. I therefore give little weight to her testimony that the lack of medical records relating to her accident-related injuries for four and a half years after the accident was due to her inability to find a family doctor.

24I give little weight to the disability certificate and revised disability certificate completed by Dr. Papini. Dr. Papini acknowledges in her letter to the respondent dated January 4, 2023, that she did not treat the patient during the 104 weeks following the accident. Dr. Papini’s letter also states that she did not check the boxes on the disability certificate that would endorse the applicant’s claims for a disability. The applicant testified that she did not check the boxes on the revised disability certificate and that she sent the revised disability certificate to the respondent exactly as she received it from Dr. Papini. I find that it does not matter who checked the boxes on the revised disability certificate. Even if Dr. Papini did endorse the applicant’s claims for a disability, I would give her opinion little weight, as she did not start treating the applicant until four and a half years after the accident.

25For similar reasons, I give little weight to the disability certificate completed by Dr. Dodds on March 7, 2025. The applicant first saw Dr. Dodds on December 6, 2024. The applicant testified that Dr. Dodds requested her hospital records prior to completing the disability certificate. However, even with access to those records, I find that Dr. Dodds did not treat the applicant within 104 weeks of her accident. I further find that he did not have access to any relevant medical records from the first 104 weeks after the accident because the applicant testified that she did not attend any hospitals or doctors between her January 2018 appointment with Dr. Reka and her July 2022 hospital visit.

26For the above reasons, I find that the applicant has not proven, on a balance of probabilities, that she suffered a substantial inability to perform the essential tasks of her employment as a result of, and within 104 weeks of, the accident. She is not entitled to an IRB.

Procedural requirements of s. 36(4) of the Schedule

27I find that the respondent met the procedural requirements of s. 36(4) of the Schedule.

28Section 36(4) provides that within ten business days after an insurer receives a completed application and disability certificate for an IRB, the insurer must do one of the following:

a) pay the IRB;

b) give the applicant notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination relating to the specified benefit, advise the applicant of the requirement for an examination; or

c) send the applicant a request for further information under s. 33(1) or s. 33(2).

29The applicant submits that she submitted a disability form completed by Dr. Papini on December 6, 2022, followed by a revised disability certificate dated December 20, 2022. She submits that she is entitled to receive an IRB as of ten days after December 20, 2022, because the notices that she received in response to the two disability certificates did not comply with s. 36(4). Specifically, she submits that the notices did not explain the medical and any other reasons why the respondent believed she was not eligible for an IRB.

30The respondent submits that it provided the required notice and relies on the letters that it sent to the applicant dated December 8, 2022 and January 6, 2023 as well as the two disability certificates completed by Dr. Papini and a letter from Dr. Papini to the respondent in which Dr. Papini confirmed that she did not check off any of the boxes on the disability certificates indicating that she supported the applicant’s disability claims.

31I find that the respondent’s letters to the applicant adequately explained the problem with the disability certificates that the applicant submitted in December 2022. Specifically, while Dr. Papini completed the forms, she was unable to comment on any disability related to the accident as she had only treated the applicant in a dental capacity as of July 18, 2022. While the revised form had certain boxes marked “yes”, Dr. Papini confirmed in her subsequent letter to the respondent that she did not check those boxes. I find that the respondent’s letters explain that, for the above reasons, Dr. Papini’s disability certificate does not confirm the applicant’s eligibility for an IRB. The respondent’s letters to the applicant dated December 8, 2022 and January 6, 2023 explain the medical and any other reasons for the respondent’s belief, as required under s. 36(4) of the Schedule.

32As the notices were compliant with s. 36(4), I find that the applicant has not proven that she is entitled to the IRB pursuant to this section of the Schedule.

Interest

33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. There are no overdue benefits, therefore the applicant is not entitled to interest.

Award

34The 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.

35As there are no benefits withheld or delayed, the respondent is not liable to pay an award.

ORDER

36I find that:

i. The Tribunal does not have the jurisdiction to determine MIG in the absence of any related underlying disputes;

ii. The applicant is not entitled to an IRB;

iii. The respondent is not liable to pay an award under s. 10 of Reg. 664; and

iv. As there are no overdue benefits, the applicant is not entitled to interest.