Citation: Sidiqi v. The Dominion of Canada General Insurance Company, 2025 ONLAT 24-008737/AABS

Licence Appeal Tribunal File Number: 24-008737/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:

Madina Sidiqi

Applicant

And

The Dominion of Canada General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Anne Jayatilake, Counsel

For the Respondent:

James Armstrong, Counsel

Michele Mainprize, Counsel

Interpreter:

Sefatullah Rahimi, Dari Language

Court Reporter:

Dayne Snell, Veritext

HEARD: by Videoconference:

September 29 and October 1, 2025

OVERVIEW

1Madina Sidiqi, the applicant, was involved in an automobile accident on May 7, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, The Dominion of Canada General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The matter proceeded to a two-day hearing. At the hearing I heard the testimony of the applicant and her father. Dr. Dharamshi, physiatrist, testified on behalf of the respondent.

ISSUES

3The issues in dispute are:

1. Is the applicant entitled to a non-earner benefit (“NEB”) in the amount of $185.00 per week from May 10, 2023 to date and ongoing?

2. Is the applicant entitled to $50,176.38 for School Clinic and Administration fee, St. Jude’s School (cost of learning), proposed by Tobias Chung of Meditecs in a treatment plan/OCF-18 dated April 1, 2023?

3. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

4I find the applicant has not established entitlement to the benefits claimed, interest or an award.

PROCEDURAL ISSUE

Testimony of Angela Bertolo

5The case conference report and order initially scheduled this matter for a two-day hearing. However, the Tribunal inadvertently scheduled a three-day hearing due to administrative error for September 28, October 1 and 2, 2025, with a one-day break in-between. On September 28th I heard from three of the four witnesses scheduled to testify. The respondent advised that Angela Bertolo, an occupational therapist, was unavailable to testify until the afternoon of October 2, 2025. I issued an oral ruling requesting that the respondent consult with its witness to see if they could make themselves available on October 1st so that we could ensure an efficient hearing. I advised that if the witness was not available that I would hear submissions from the parties on whether the testimony of this witness was reasonably required for a fair determination to be made in this matter.

6On October 1st, the respondent advised that Ms. Bertolo was not available to testify until the next day. It submits that while it is possible for it to rely on Ms. Bertolo’s report it would like to call this witness because her evidence is relevant to the issues in dispute. Counsel for the applicant advised that she was suddenly not available for the hearing on October 2, 2025, however, she argued that the applicant would be prejudiced if she was unable to cross-examine Ms. Bertolo on her report. I issued an oral ruling that Ms. Bertolo’s testimony was not required for a fair determination to be made in this matter and that the respondent could rely on the report. I advised the parties that they could make further submissions regarding the relevance of this report and weight it should be given in their closing submissions. Ultimately, I find this procedural ruling did not affect the outcome of this decision because the applicant did not meet her onus in establishing entitlement to the benefits which will be discussed further below.

BACKGROUND

7On May 17, 2013, the applicant (who was six-years old at the time) was involved in an accident when the vehicle she was a passenger in was rear-ended. The applicant initially reported neck pain to her family doctor and went on to develop a psychological impairment. In May 2019, she was deemed to be catastrophically impaired under Criterion 8, because the respondent agreed that she had a marked impairment in Adaptation. The applicant turned 16 on May 21, 2023, and she is now 18 years old.

ANALYSIS

The applicant is not entitled to a NEB in the amount of $185.00 per week from May 10, 2023, to date.

8Section 12(1) provides that an insurer shall pay a 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 12(4) supports that an insurer is not required to pay a NEB before the insured person is 16 years of age.

9Section 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 Mutual Insurance Company, 2009 ONCA 391 (“Heath”), which focuses on a comparison of the applicant’s pre-and post-accident activities. Some of the principles endorsed by Heath are:

i. A claimant who merely goes through the motions cannot be said to be engaging in an activity and the question is not whether a person can do the activity, but whether the impairment practically prevents them in engaging in activity.

ii. It is not enough to show changes from pre- to post-accident activities; the claimant must be continuously prevented from engaging in substantially all of their pre-accident activities.

iii. The manner in which an activity is performed, and the quality of performance post-accident must be considered. If the degree to which a claimant can perform the activity is sufficiently restricted, it cannot be said that he or she is engaging in the activity.

iv. Greater weight may be assigned to those activities which the claimant identifies as being more important to them in their pre-accident life.

10The applicant argues that she has sustained physical, psychological and cognitive impairments as a result of the accident which have persisted for over a decade. These impairments have resulted in a complete inability to carry on a normal life. She submits that at the time of the accident she was a happy, healthy and engaged child who did not have any behavioural issues. She enjoyed school, and playing with friends and socializing with family. Post-accident her impairments have continuously prevented her from regular attendance and poor performance at school. Further, her anxiety curtailed her ability to form friendships, and from pursuing further education and work like a normal 18-year- old.

11The respondent submits that the applicant is not entitled to NEBs because she did not submit a disability certificate (OCF-3) within the 104-week period that supports that she meets the disability test. It also submits that there is a lack of medical evidence to support that the applicant had ongoing accident-related impairments which resulted in a complete inability to carry on a normal life, within the 104-week mark. It asserts that this is a mandatory requirement to be entitled to a NEB. It also maintains that there is inadequate medical evidence to support that she has been continuously prevented from carrying on a normal life up until the age of 16 without a break or interruption.

12I find that the applicant has not met her onus in proving that she is entitled to a NEB for the following reasons.

13First, I find the applicant and her father’s testimony about her pre- and post-accident activities unreliable because it was vague and inconsistent with the school records and the medical evidence before me. The applicant testified that she was in Grade 1 when the accident occurred and because of her young age she did not have a clear recollection of what her pre-accident activities were. She testified that she enjoyed going to school, birthday parties and family events such as weddings. In addition, she probably played with toys with other kids and watched cartoons. Because of her age at the time of the accident she acknowledged that she relied on her parents for assistance with bathing, dressing, feeding, supervision and transportation. Her father testified that prior to the accident his daughter loved school so much she would ask him to take her there on weekends. She was also social and enjoyed playing with toys with her friends, riding her bike and was more independent in carrying out her self-care activities.

14The applicant testified that post-accident she suffered from headaches and neck, back and shoulder pain which resulted in difficulty sleeping. She maintains that this had an impact on school which resulted in problems in getting to school on time, regular attendance and completing her work because of issues with concentration. In addition, that because of her ongoing pain symptoms she developed anxiety which resulted in social withdrawal and depression. As a result, she became anti-social and refuses to leave the house. Since the accident she has never gained true independence in carrying out her personal care and relies on her mother for assistance with bathing, dressing, undressing, cleaning and making meals.

15The applicant’s father testified that post-accident his daughter stopped socializing with friends and would not leave the house, and that she does not independently bathe or carry out any housekeeping activities. Further, she developed problems with learning at school and required an Individual Education Plan (“IEP”) and tutor because of her accident-related impairments. She also developed very abnormal behaviours such as cutting her hair, clothes and curtains, which resulted in a referral to a psychiatrist.

16I find the applicant’s father’s testimony about the applicant’s pre-accident school activities and academic performance unreliable. I find that the pre-accident report cards from junior and senior kindergarten along with correspondence from the school establish that prior to the accident the applicant had issues with attendance and punctuality. For example, in 2012, the school sent the applicant’s parents two letters because she had been absent 49 times and late on several occasions. The school warned the parents that they could be charged under the Education Act and that they had an obligation to ensure the applicant’s attendance at school. The applicant’s issues with attendance continued in senior kindergarten. During cross-examination, the applicant confirmed that she was unaware of the extent of her absences at school prior to the accident.

17During cross-examination, the applicant’s father attributed the applicant’s pre-accident attendance issues to cold and flu illnesses. I do not find this explanation persuasive because there were no pre-accident medical records which documented any illnesses for these school years. Further, he acknowledged that he and his wife were diligent in bringing their children to the doctors when they were sick. In my view, I find the pre-accident school records at odds with the father’s testimony regarding the applicant’s pre-accident love for school. In addition, the start date of the IEP relied upon was from February 2017, which was almost four years post-accident. For these reasons, I do not find his testimony credible and have assigned it little weight. I also note that in 2017 the applicant was diagnosed with attention deficit hyperactivity disorder (“ADHD”). A consult note of Dr. Taveres, treating psychiatrist, dated April 18, 2016, stated that the ADHD may be the reason for the applicant’s dislike of school. I find the applicant’s ADHD diagnosis to be unrelated to the accident.

18I also find both the applicant and her father’s testimony about her pre-accident social and leisure activities vague and lacking in detail. Understandably the applicant was unable to recall details about her pre-accident life because of her age at the time of the accident. For example, she could not remember if she had any friends and speculated that she probably enjoyed playing with toys with friends. However, I find the applicant’s father was unable to fill in the gaps and provide a clear understanding regarding her pre-accident social life and leisure activities. For instance, he did not provide details about her friends or how often she played with them or whether she was involved in any extra curricular activities such as sports. Further, no evidence was provided about what activities were most important to her that she could no longer do post-accident as per the analysis in Heath. I find the pre-accident report cards from junior and senior kindergarten document that the applicant seemed to gravitate to solo versus group activities. She kept to herself and one of the goals on her last report card was to expand her social circle and make friends. For these reasons, I find it unclear to what extent the applicant’s social and leisure activities changed post-accident and especially during the first 104-week period.

19Second, I find that there is a lack of medical evidence before me to support that the applicant sustained an impairment within 104 weeks after the accident which resulted in a complete inability to carry on a normal life. For example, the only evidence I have before me between the date of the accident and the 104- week mark (May 7, 2015) was a clinical note and record (“CNR”) from the family doctor from the day after the accident in which the applicant reported neck pain. There was no information in this CNR about whether the applicant’s neck pain resulted in any functional limitations or interfered with any activities.

20The applicant also relies on a letter from her Grade 3 teacher to her family doctor, which stated that the applicant was experiencing challenges with learning and completing work, was having mood swings, and that the parents had mentioned that she may have sustained a concussion in an accident a few years ago. I find the letter from the teacher is of limited value because she is not a health practitioner. Nor was I directed to any other medical records between 2013 to May 2015 to support that the applicant had any ongoing accident-related impairments which had an impact on her ability to carry out her pre-accident activities during this time period. For this reason, I find that the applicant does not meet the disability test for entitlement to a NEB because there is insufficient evidence of an accident-related impairment which resulted in a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.

21Third, even if I am wrong in my finding that the applicant has not met the disability test within the 104-week period, I find there is inadequate evidence before me to support that any accident-related impairment continuously prevented her from engaging in substantially all of her pre-accident activities. For example, the only medical evidence the applicant relied upon in support of her entitlement to a NEB was a report of a psychiatrist from 2016 and the CAT assessment reports of her assessors from 2018. I find that these reports significantly pre-date the time-period she became eligible for payment of the NEB on May 21, 2023. Of significance, the respondent directed me to the report of Dr. Liu, psychiatrist (the applicant’s own assessor) dated February 14, 2023, who determined that she did not meet the test for entitlement to NEBs as a result of any accident-related psychological impairment.

22Fourth, the applicant testified that to date she stills requires her mother’s assistance with self-care tasks such as washing her hair because she cannot reach above her head because of ongoing physical pain, and she is unable to carry out any housekeeping and home maintenance tasks. She also testified that she rarely leaves the house and does not socialize. I find the applicant’s testimony about her past and current function inconsistent with her self-reports to various assessors. The following are some examples:

i. The insurer examination (IE) of Elke Sengmueller, registered dietician, dated March 10, 2020, notes that although there was a history of bullying and isolation, the applicant reported having a number of friends at school.

ii. The IE report of Hamidri Kaul dated July 22, 2022, indicated that the applicant had normal range of motion (“ROM”) in the upper and lower extremities. She demonstrated adequate functional abilities to carry out her self-care tasks and reported independence with bathing, dressing and grooming. She required prompting from her mother to carry out some of her activities of daily living, but the report noted that the children of the household were not involved in household tasks and the parents were primarily responsible for cooking, grocery shopping and cleaning.

iii. The IE report of Dr. Kumchy, neuropsychologist, dated November 11, 2022, states that her parents described her as not being interested in socializing or making friends. However, the applicant reported to the doctor that she sees her friends, talks to them and communicates with them via the internet.

iv. The IE report of Vanessa Dwyer, occupational therapist, dated December 9, 2024, notes that the applicant had the physical ability to reach above shoulder height and range of motion (“ROM”) to manage reaching tasks. She reported being independent with all personal care tasks including dressing, mobility and bathing. She is able to prepare simple meals such as grilled cheese and mac n cheese independently and makes her own breakfast. She will sometimes help with meal preparation, grocery shopping and washing the dishes and other household tasks. She sometimes goes to the park or beach with family and went to Canada’s Wonderland and Niagara Falls last summer. She has some friends from school that she does not see very often, however, she socializes with her sister and friends in the neighbourhood. She enjoys playing videogames, playing with her cat, reading, drawing and painting.

23During cross-examination, the applicant acknowledged that when she transitioned into high school, she made friends and was doing better. However, she did not remember the details of many of the assessments or what she reported to assessors. I find the applicant’s testimony about her function inconsistent with what she reported to assessors. I find the above-noted reports establish that the applicant’s ability to carry out her daily activities has improved throughout the years. I find that she has not proven on a balance of probabilities that she has been continuously prevented from carrying out her pre-accident activities and has a complete inability to carry on a normal life as per the test for NEBs.

24Finally, the respondent relies on the IE report and testimony of Dr. Dharamshi dated May 9, 2023, who opined that the applicant did not have any functional limitations from a physical perspective which would result in a complete inability for her to carry on a normal life. I find the applicant has not provided sufficient evidence to refute Dr. Dharamshi’s opinion. I also note that Dr. Liu, the applicant’s own assessor, determined that she did not meet the test for NEBs from a psychological perspective.

25The respondent also relies on the IE occupational therapy report of Ms. Bertolo. I acknowledge that the applicant was not able to test the evidence of OT Bertolo and I have not considered the report because the applicant has not met her burden.

26Although I acknowledge that the applicant sustained a serious impairment as a result of the accident in that she was deemed to be catastrophically impaired, for the reasons noted above, she has not met her onus in proving entitlement to a NEB for the time period claimed.

The applicant is not entitled to the OCF-18 for tuition at St. Judes in the amount of $50,176.38.

27Section 16 of the Schedule states that the insurer will pay for rehabilitation benefits for all reasonable and necessary expenses incurred by or on behalf of the insured person…for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market.

28The OCF-18 dated April 1, 2023, was prepared by Tobias Chung, chiropractor, and recommended tuition for St. Judes at a cost of $38,950.00, plus $200 for form preparation and a 25% administration fee payable to Meditecs for a total cost of $50,179.38. The goal of the OCF-18 stated, “as discussed with case manager and adjuster.” The applicant did not make any further submissions about the goal of this OCF-18.

29The respondent sent the applicant an explanation of benefits dated April 12, 2023, which indicated that it was denying the OCF-18 on the basis that it was not reasonable and necessary. The notice stated that it had reviewed the medical documents and school records which support that the applicant was functioning at a passing grade level and that her academics had been improving since the accident. Further, there was no medical evidence on file that supported the need for private school.

30The applicant made no submissions in support of her position that this OCF-18 for tuition for St. Judes is reasonable and necessary. The applicant testified that she graduated from high school this year and that she is not interested in going back to St. Judes for another year of high school. She stated that St. Judes was recommended to her by her case manager because her high school was not doing a proper job in addressing her learning needs or disability.

31The respondent submits that the applicant has not met her onus in proving that the OCF-18 is reasonable and necessary as she has not produced any medical opinion in support of same. It also maintains that it is outside the scope of a chiropractor and case manager to make this recommendation. Finally, it also argues that the applicant is not entitled to payment of the OCF-18 because the OCF-18 was not signed, which was in non-compliance with s. 38(3)(a) of the Schedule.

32I find the applicant has not met her onus in proving that the OCF-18 for private school tuition is reasonable and necessary because I have no information about the goals of the OCF-18 or submissions that the cost is reasonable. I have insufficient evidence before me to understand why the OCF-18 was recommended in the first place. Moreover, the OCF-18 did not provide further information. Although I note that the applicant had some challenges with education post-accident in that she was on an IEP, I find that she was able to graduate from high school with the rest of her class. I also have no school records during the time period the OCF-18 was submitted to support that the applicant was struggling with her education or that her school was not meeting her learning needs.

33Finally, I note that s. 38(3)(a) of the Schedule supports that an insured must sign an OCF-18 unless the insurer waves the requirement, which it has not done in the present case. Consequently, even if I determined that it was reasonable and necessary the applicant would not be entitled to payment of same because the OCF-18 was not signed. The applicant did not address this argument at all in response.

34In conclusion, I find the applicant has not met her onus in proving that the OCF-18 in the amount of $50,179.38 for tuition at St. Judes is reasonable and necessary.

The applicant is not entitled to Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest because I have not determined that any benefits are overdue.

The applicant is not entitled to an award

36The 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. The applicant did not make any submissions in support of her position that the respondent is liable to pay an award. I conclude that she has not met her onus in proving that an award is warranted in this case.

ORDER

37For the above-noted reasons, I find the applicant is not entitled to the benefits claimed, interest or and award.