Licence Appeal Tribunal File Number: 24-015161/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:
Tameika Givans
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
VICE-CHAIR: Henry Harris
APPEARANCES:
For the Applicant: Manisa Kafai, Counsel
For the Respondent: Paul Barnes, Counsel
Court Reporter: Prashanth Thambipillai
Heard by Videoconference: August 19 and 20, 2025
OVERVIEW
1Tameika Givans (the “applicant”) was involved in an automobile accident on July 16, 2024, 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 Belair Insurance Company Inc. (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The preliminary issue in dispute was added by Motion Order dated July 29, 2025. The preliminary issue is as follows:
i. Is the applicant barred pursuant to section 55(1) of the Schedule from disputing the entitlement to the physiotherapy plan dated July 25, 2024, the psychological services plan dated November 4, 2024, and the psychological assessment plan dated September 10, 2024, due to her failure to attend an insurer’s examination (“IE”) under s.44 of the Schedule?
SUBSTANTIVE ISSUES
3The substantive 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 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from November 22, 2024 to date and ongoing?
iii. Is the applicant entitled to $2,786.96 for physiotherapy services, proposed by 101 Physio in a treatment plan/OCF-18 (“plan”) dated July 17, 2024 and submitted July 25, 2024?
iv. Is the applicant entitled to $3,790.70 for psychological services, proposed by 101 Assessments in a plan dated October 22, 2024 and submitted November 4, 2024?
v. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a plan dated August 23, 2024 and submitted September 10, 2024?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefit?
viii. Is the applicant entitled to costs pursuant to Rule 19 of the Licence Appeal Tribunal Rules, 2023 (“Rules”)?
4For issues iii, iv and v, based on the evidence presented, I have reflected both the date of the plan and the date submitted for each plan, as set out above.
5At end of the applicant’s closing submissions, she raised the issue of costs pursuant to Rule 19, which I have added as issue viii above.
RESULT
6On the preliminary issue, I find that the applicant is not barred from proceeding with her claims for the plans in dispute pursuant to s. 55(1) of the Schedule.
7On the substantive issues, I find that:
i. The applicant remains subject to the MIG;
ii. The applicant is not entitled to an IRB;
iii. The plans are not payable pursuant to s. 38 of the Schedule;
iv. As the applicant remains in the MIG, I have not considered if any of the disputed plans are reasonable and necessary;
v. The applicant is not entitled to interest, an award or costs; and
vi. The application is dismissed.
ANALYSIS
PRELIMINARY ISSUE
The applicant is not barred from proceeding to a hearing on the plans in dispute
8I find that the applicant is not barred from proceeding with her claims for the plans in dispute pursuant to s. 55(1) of the Schedule.
9Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.
10A proper notice under s. 44(5) must state the medical reason and any other reasons for the examination; whether the insured’s attendance is required at the IE; the name, title and designation of the person conducting the IE; and the date, time and location of the assessment. Section 44(9)2 provides that the insurer shall make reasonable efforts to schedule the IE for a day, time and location that are convenient for the insured.
11Section 55(1)2 provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under section 44, but the insured person has not complied.
12Section 55(2) states that the Tribunal may permit an insured person to apply to it, despite paragraphs 2 and 3 of section 55(1).
13The respondent bears the onus of establishing that the applicant is statute-barred for failing to comply with s. 44(9)2.
14The respondent seeks an order barring the applicant from proceeding to a hearing on the plans in dispute pursuant to s. 55(1)2 due to the applicant’s failure to comply with s. 44 due to not attending an IE for MIG.
15The parties do not dispute that the applicant did not attend the scheduled IE. On April 25, 2025, the respondent requested that the applicant attend a general practitioner IE scheduled for May 5, 2025 in order to determine the applicability of MIG and a plan in the amount of $2,786.96 for physiotherapy services dated July 17, 2024.
16In a letter dated May 1, 2025, the applicant’s representative advised the respondent that the applicant would not be attending the IE, asserting that it was not scheduled within a reasonable time period from when the plan was submitted in July 2024, and that she considered the timing of the scheduling to be an unfair and deceptive practice.
17The respondent argued that the applicant failed to comply with her obligation to attend a properly scheduled IE assessment and has failed to provide a reasonable explanation for failing to attend. The respondent argued that the IE was necessary to determine the applicant’s eligibility for benefits outside of the MIG. The respondent acknowledged that the scheduling of the IE was delayed but submitted that this was due to the applicant’s failure to provide various supporting medical documentation requested in denial notice letters dated August 15, 2024 and November 12, 2024, and in IE notices of examination (“NOEs”) dated April 25, 29 and 30, 2025. The respondent argued that as long as the IE is properly scheduled, even if there are delays, the applicant is required to attend the IE. The respondent takes the position that the timing of the IE request does not strip the respondent of its right to an IE. The applicant should thus be barred from proceeding, pursuant to s. 55(1)2.
18The applicant argued that any delays in the timing of IE were a direct result of the respondent’s handling of the claim and that the applicant should not be penalized for the respondent’s error. The applicant submitted that she already attended three separate IEs addressing IRB on October 16, 2024, and that none of these assessments covered MIG despite the respondent having denied two plans on the basis of MIG prior to these IEs. The applicant argued that there was duplication between the IRB IE and the proposed MIG IE, that both IEs could have been done at the same time, and that the respondent could have arranged for its assessor to conduct a paper review or other less intrusive measure for her.
19The applicant further argued that by the date of the Tribunal application, December 11, 2024, the respondent had the clinical notes and records (“CNRs”) of the family physician, Dr. Olugbenga Ojedokun, the Disability Certificate (“OCF-3”) and the October 14, 2024 s. 25 psychological assessment report of Dr. Konstantinous Papazoglou, psychologist. The applicant argued the request for a late IE scheduled after the application had commenced was a tactical move to strengthen the respondent’s case, rather than for the purpose of adjusting the claim.
20I find that s. 55(1)2 does not bar the applicant from proceeding with her claims because, based on a plain language reading of the provision, the IE must be scheduled before the applicant applies to the LAT in order to bar an application. The specific provision states that “an insured person shall not apply to the LAT”, which suggests that the subsequent restrictions apply only if the non-compliance occurred prior to the application.
21I find that the applicant applied to the LAT on December 11, 2024, while the respondent requested the IE on April 25, 2025, more than four months later. Further, the IE was requested nearly eight months after the August 15, 2024 denial of the first treatment plan on the basis of being subject to MIG. It is agreed that the respondent had received the CNRs of the family doctor by December 2024. No explanation was provided as to why the IE request took several months to request after receipt of the CNRs. Allowing an insurer to request an IE several months after a Tribunal application has been filed and then using non-attendance as a basis to bar the proceeding would create an unfair procedural hurdle for the applicant.
22The respondent cited J.F. vs. Aviva General Insurance, 2020 CanLII 12717 (ON LAT), in arguing that timing of the IE request does not disentitle the respondent of its right to an IE. I am not bound by this decision and I also find the circumstances of that case to be substantially different from the case before me. In that case, the single issue was non-earner benefits and the insured had not attended any IEs. As such, I do not find that decision to be helpful for my analysis.
23In addition, I find that the respondent has not demonstrated that the further IE was reasonably necessary. The insurer’s right to IE reports is based on principles of procedural fairness to ensure that it is able to respond to claims for benefits and adequately respond. While there is no explicit limit to the number of examinations an insurer can request, an insurer’s right to examinations must be balanced against the privacy rights of applicants. In this regard, the purpose and timing of the request needs to be considered.
24The respondent first denied one of the plans in August 2024, maintaining the injuries fall within the MIG. The applicant attended three separate IEs addressing IRB in October 2024, including a physician assessment by Dr. Ahmed Belfon, the same physician that the respondent was seeking to arrange a further IE for MIG in May 2025. While I acknowledge that the respondent did not have the requested CNRs at the time of the October IEs, no explanation was provided as to whether anything found in its review of the CNRs in December 2024 warranted a further IE for MIG. Nor was it explained why it took until April 2025 to make such request for the further IE, or why it could not be conducted as a paper review, given that it was the same examiner, Dr. Belfon. As such, given the information already available to the respondent and no indication of a change in circumstances, I do not find the timing of the IE request to be reasonable.
25Accordingly, for these reasons, on the preliminary issue, I find that the applicant is not barred from proceeding with her claims for the plans in dispute pursuant to s. 55(1) of the Schedule.
SUBSTANTIVE ISSUES
The applicant is not entitled to an IRB
26I find that the applicant has not established entitlement to an IRB.
27To 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. If the applicant was not employed at the time of the accident, to be eligible for an IRB under s. 5(1)(ii), the applicant must have been employed for at least 26 weeks during the 52 weeks before the accident or was receiving benefits under the Employment Insurance Act (Canada). 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.
28The applicant submitted that from February 6, 2024 until she resigned on July 7, 2014, nine days prior to the accident, she worked as a customer service representative at TEKsystems Canada Corp. Prior to that, she worked from July 20, 2022 to February 25, 2025, as a customer service representative at Usolve Financial (2473614 Ontario Inc.). Although not employed at the time of the accident, there is no dispute that the applicant was employed for at least 26 weeks during the 52 weeks before the accident, thus satisfying the condition under s. 5(1)(ii).
29The applicant testified that her position at TEKsystems was a home-based role acting as a credit card advisor for RBC. She chose to leave her job as she hated it and wanted to do something else that she was passionate about.
30At the time of the accident, the applicant was enrolled as a full-time student at Marca College in a 10 month diploma program in hairstyling. She commenced the program on July 8, 2024. She successfully completed the 1,500 hour program with a 91% average mark on April 25, 2025. The applicant testified that the program carried a full-time class load, 8 hours a day, 5 days per week. The program involved a combination of in-class instruction and hands-on practical training in a salon environment. The applicant explained that in order for her to become licensed as a hairstylist in Ontario, she must complete a further 2,000 hours of apprenticeship work training at a salon.
31The applicant submitted that at the time of the accident, hairdressing was her true vocational trajectory and that entitlement to an IRB should be based on whether she suffers a substantial inability to perform the essential tasks of a hairstylist apprentice. She argued that anchoring the analysis to her prior customer service job is artificial, as she had resigned at the time of the accident and had no intention of returning.
32I do not agree with the applicant. The test for an IRB under s. 5 is clear. It is based on the insured person’s employment at the time of the accident or, if not employed at the time of the accident, as is the case here, a substantial inability to perform the essential tasks of the employment in which the insured person spent the most time during the 52 weeks before the accident (s. 5(1)(ii)C). In either case, it is based on the person’s employment at or prior to the accident. Future career goals do not form any part of the statutory test for an IRB under s. 5.
33In support of her argument, the applicant focussed her submissions on the essential tasks of hairdressing, and submitted that she suffers a substantial inability to perform such tasks, including prolonged standing, sweeping, mopping and repetitive use of scissors and blow drying of hair. I do not find such identification of tasks of a hairdresser to be relevant to an analysis of whether the applicant has a substantial inability as required by s. 5.
34While the applicant’s focus was on her preferred vocation in hairdressing, in her testimony she provided a limited description of her position at TEKsystems. She described the position as a full-time, home-based role acting as a credit card advisor for RBC. The role involved interacting with a large volume of customers by phone to assist with their credit card inquiries, sitting for prolonged periods and typing. She received three breaks per day. She explained that she disliked the job and quit to pursue other work that she would be passionate about. The applicant testified that hairdressing is more of a physical job where you have to be on your feet, as compared to her customer service job at TEKsystems, although she felt she would not be able to go back to such a job as it involved being seated for long periods of time.
35The applicant relies on a June 9, 2025 s. 25 functional abilities evaluation report of Dr. Roya Salehoun, chiropractor. Dr. Salehoun was of the opinion that the applicant was unable to return to work as a hairdresser. In her testimony, Dr. Salehoun indicated that she based her report on the position of hairdresser as the applicant had advised her that she had already quit her job as a credit card advisor, which Dr. Salehoun stated was a more sedentary position than a hairdresser. I do not find Dr. Salehoun’s report to be persuasive as it did not address the applicant’s ability to perform pre-accident tasks as a customer service representative.
36I find that the applicant has not satisfied the onus of proving on a balance of probabilities that she meets the test for an IRB. Her evidence focussed on her preferred vocation in hairdressing. There was a lack of evidence presented to identify the essential tasks of employment with TEKsystems, in the role that she referred to as a credit card advisor, and which tasks she is unable to perform and to what extent.
37Further, I acknowledge that the applicant testified that she believed she would not be able to go back to such a job as it involved being seated for long periods of time, and that she sometimes gets headaches from loud noise, and sometimes has tingling that runs down into her arm and leg. The CNRs of her family doctor, Dr. Olugbenga Ojedokun, document a visit on July 17, 2024, one day after the accident, in which the applicant complained of neck pain radiating down her arms and a mild headache. Dr. Ojedokun noted that she looked well and did not appear to be in any form of distress. The doctor explained to the applicant that the symptoms were consistent with cervical strain. There was no indication of back pain and Dr. Ojedokun does not comment on her ability to do the essential tasks of her prior employment. I do not find that this clinical note establishes that she was substantially unable to perform the essential tasks of her prior employment.
38In addition to the applicant not satisfying the onus for an IRB, I note that the respondent relies on the multidisciplinary set of three s. 44 reports dated October 30, 2024, the physician assessment report of Dr. Ahmed Belfon, and two reports of Mr. Michael Drinkwater, physiotherapist, being the job site evaluation report and the functional abilities evaluation report.
39Dr. Belfon conducted an in-person physical examination of the applicant, and reviewed documents as listed in his report including the concurrent job site evaluation report and the functional abilities evaluation report of Mr. Drinkwater. Dr. Belfon was of the opinion that the accident-related musculoskeletal injuries she sustained are most consistent with sprain/strain to the cervical spine (WADI/II), shoulder girdle bilaterally, soft tissues of the thoracic spine and lumbosacral spine, as well as intermittent right-hand paresthesia and post-accident headaches. Dr. Belfon found that there were no objective impairments that would render the applicant unable to perform the essential tasks of her employment as a credit card advisor, from a musculoskeletal perspective.
40While not necessary to my finding that the applicant has not satisfied the onus for proving entitlement to IRB, I find Dr. Belfon’s report to be persuasive as it involved both a physical examination and consideration of multidisciplinary reports of Mr. Drinkwater and other documents available at the time as set out in his report. In her closing submissions, the applicant argued that the multidisciplinary s. 44 reports contained deficiencies, including the concurrent job site evaluation report identifying her pre-accident occupation as a credit card advisor when it should have been customer service representative. I do not agree with that argument, as she specifically testified that her role at TEKsystems was that of a credit card advisor.
41Accordingly, for these reasons, I find the applicant has not established entitlement to an IRB. I note although the issue framed in the CCRO provides that the IRB is to date and ongoing, the parties did not address the post-104 period or lead any evidence on the test.
The applicant remains within the Minor Injury Guideline (MIG)
42I find that the applicant has not established on a balance of probabilities that she suffers from an accident-related injury or condition that warrants removal from the MIG.
43Section 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.”
44An 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 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.
45In all cases, the burden of proof lies with the applicant.
46The applicant submitted that she should be removed from the MIG because she:
a) suffers from chronic pain with functional impairment as a result of the accident; and
b) sustained an accident-related psychological condition.
a) The applicant is not removed from the MIG on the basis of chronic pain
47I find that the applicant has not proven on a balance of probabilities that she has accident-related chronic pain with functional impairment.
48The applicant submitted that she should be removed from the MIG due to her accident-related chronic pain. The applicant testified that she initially felt some pain after the accident, but in the weeks and months after, it became more severe and constant. She described it as always being in the background. She indicated she has pain in her neck, shoulder and back. The applicant described the neck pain as sometimes feeling like it is grabbing, shooting or tingling, and that it sometimes runs down into her arm. She described her back pain as sometimes tingling and running down her leg with a feeling of numbness. The applicant indicated that she had some back pain before the accident, which she described as more of an occasional ache, and that she had complained of back pain to her family doctor as recently as one month before the accident. She also testified that sometimes she gets headaches from loud noise.
49In support of her position, the applicant submitted that by December 11, 2024, the respondent had documentation of persistent neck, shoulder and back pain, as well as radiating radiculopathy.
50However, the applicant did not direct me to what specific documentation supports accident-related chronic pain. As previously noted, the CNRs of the family doctor document the applicant complaining of neck pain radiating down her arms and a mild headache the day after the accident. Dr. Ojedokun noted that she looked well and did not appear to be in any form of distress, and explained that the symptoms were consistent with cervical strain.
51While there was no indication of back pain reported at the visit with the family doctor on July 17, 2024, the August 27, 2024 CNRs of Dr. Ojedokun document complaints by the applicant of persistent back and shoulder pain unresponsive to physiotherapy. CNRs of Dr. Ojedokun on Oct 23, 2024 document a telephone consultation to discuss imaging results. Dr. Ojedokun informed the applicant of a slight disc disease L5-S1, that the other discs and joints were normal, alignment was within normal limits and no fracture was observed. No context was provided as to what led to requesting this imaging or regarding the pre-accident back pain that the applicant testified having. There was no suggestion that this diagnosis was accident-related or that the applicant has accident-related chronic pain.
52As such, I do not find the medical evidence presented supports accident-related chronic pain that warrants removal from the MIG.
53Accordingly, I find that the applicant has not established on a balance of probabilities that she has accident-related chronic pain or any functional impairment caused by accident-related chronic pain. Therefore, the applicant is not removed from the MIG on this basis.
b) The applicant has not sustained a psychological impairment
54I find that the applicant has not proven on a balance of probabilities that she sustained a psychological impairment due to the accident.
55The applicant submitted that she suffers from a psychological impairment as a result of the accident and, as such, should be removed from the MIG. The applicant testified that she is sad because she feels she is not getting better. When asked what emotional symptoms the applicant is experiencing, she described sometimes have a feeling of helplessness, and trouble with concentrating and sleeping. She indicated that pre-accident she had no emotional impairments.
56In support of his position, the applicant relies on the October 11, 2024 s. 25 psychological assessment report of Dr. Konstantinous Papazoglou, psychologist. This report diagnosed the applicant with Adjustment Disorder, with mixed anxiety and depressed mood, and recommended a course of psychological treatment sessions for pain management strategies and anxiety coping strategies.
57The respondent submitted that the applicant has not proven, on a balance of probabilities, that she has sustained a psychological impairment as a result of the accident. The respondent argued that Dr. Papazoglou did not review any medical records of the applicant in preparing his report, other than the referral request from the family doctor, and thus did not have a record of the applicant’s medical history to consider in assessing the applicant. The respondent further argued that there were problems with Dr. Papazoglou’s report that became apparent during his testimony. In particular, in cross-examination, Dr. Papazoglou acknowledged that he did not himself perform the validity testing referred to in his report, but rather delegated the task to a psychometrist. The report did not disclose this process nor did it identify the name of the psychometrist who administered the tests. As such, the respondent argued that it did not have the opportunity to summons the psychometrist as a witness and that the validity testing should be given little or no weight.
58I find that the applicant has not proven on a balance of probabilities that she sustained a psychological impairment due to the accident for the following reasons.
59Firstly, I find the CNRs of Dr. Ojedokun to be of limited assistance as there was only one entry six weeks post-accident which identified psychological complaints. The CNR of August 27, 2024 notes the applicant looks well and stable, and does not appear to be in any form of distress. The doctor notes the applicant complaining of mood swings and depressive symptoms, and that she feels overwhelmed by insurance and car rental issues post-accident are contributing to her stress. Dr. Ojedokun notes that the applicant is encouraged to seek psychotherapy to address post-traumatic stress disorder (PTSD) symptoms, and references differential diagnoses of adjustment disorder, generalized anxiety disorder and major depressive disorder. Beyond this entry, the applicant did not point me to any other CNRs regarding follow up with Dr. Ojedokun on psychological complaints. I find that as the applicant only reported these complaints once, within six weeks of the accident, this suggests that her symptoms were sequelae or symptoms arising from soft tissue injuries.
60Secondly, I do not find the s. 25 assessment report to be persuasive as Dr. Papazoglou did not review any medical records of the applicant in completing his assessment, other than the consultation request of the family doctor. Dr. Papazoglou acknowledged in his testimony that it is helpful to review the medical records and history in coming to a psychological diagnosis. I find the lack of such review of the medical records to limit the reliability of his report, as his diagnosis was based solely on the reporting by the applicant. The assessment was conducted virtually, the length of which was not documented in the report. As well, I agree with the respondent that the report did not describe the process in which the validity testing was performed, nor did Dr. Papazoglou explain that he did not administer the testing himself. I find that failing to identify this process and the name of the psychometrist who administered the tests created unfairness to the respondent, as it did not have an opportunity to directly challenge the validity testing with the psychometrist or summons the individual as a witness. As a result, I assign little weight to the validity testing in the report and correspondingly the psychological testing which is based on self-reporting by the applicant.
61Although the Schedule’s definition of a minor injury does not include psychological impairment, the definition does capture the “clinically associated sequelae” of minor, soft tissue injuries. The MIG adopts a “functional restoration” framework for the treatment of minor injuries. This contemplates “interventions that help the insured person to reduce or manage his/her pain and associated psycho-social symptoms”. The MIG is clear that some psychosocial issues can be expected as the clinical consequences of minor, soft tissue injuries.
62It is not in dispute that the applicant sustained soft tissue sprains and strains in the accident. While I note the psychological symptoms documented in the CNRs of the family doctor six weeks post-accident, given the proximity to the accident while the applicant was still recovering from minor injuries, I find that the applicant’s symptoms are clinically associated consequences of the applicant’s minor, soft tissue injuries, and should therefore be treated under the MIG. In reaching this conclusion, I note that I do not find Dr. Papazoglou’s diagnosis persuasive for the reasons set out above.
63Accordingly, for these reasons, I find that the applicant has not proven on a balance of probabilities that she sustained a psychological impairment due to the accident. Therefore, I find that the applicant is subject to the MIG.
64As I have found that the applicant is not removed from the MIG, it is not necessary to engage in an analysis of whether the disputed plans are reasonable and necessary as a result of the accident.
65The applicant also argued that the plans is dispute are payable under s. 38 of the Schedule due to deficiencies with the denials. I will now consider this argument.
The applicant has not established that the denials were non-complaint
66I find that the applicant has not established on a balance of probabilities that any of the respondent’s denials for the plans in dispute were non-compliant with s. 38(8) of the Schedule.
67Sections 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 10 business days after it receives a plan which goods, services, assessments and examinations that the insurer does and does not agree to pay for. The insurer must also provide medical and other reasons why it considers any of the goods and services to not be reasonable and necessary.
68If an insurer fails to comply with its obligations under s. 38(8) in connection with a treatment and assessment plan, the following consequences set out in s. 38(11) of the Schedule are triggered:
i. The insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies; and
ii. 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 s. 38(8).
Plan dated July 17, 2024 is not payable pursuant to s. 38 of the Schedule
69I find that the applicant has not established that the plan is payable pursuant to s. 38(8).
70The plan dated July 17, 2024 in the amount of $2,786.96 for physiotherapy services was submitted by the applicant on July 25, 2024. The respondent denied the plan by way of a denial notice dated August 15, 2024. The applicant raises two arguments in support of her claim that the notice is non-compliant with s. 38 of the Schedule. She submitted that the notice does not provide sufficient medical and any other reasons for the denial, and that it was not provided within the 10 business day timeline stipulated by s. 38(8).
71While the applicant focussed her submissions on the timing of the notice, she also argued that the notice was vague and generic, only citing MIG and requesting CNRs from any relevant treating facility.
72I find the denial notice dated August 15, 2024 was compliant with s. 38(8). The notice identified the benefit the respondent did not agree to pay for, and indicated that based on the information on file, the applicant’s injuries fall under the MIG. The reasons went further, indicating that the injuries appear to be soft tissue in nature without any direct confirmation indicating otherwise, and noting that the chiropractor who completed the plan made mental health diagnoses that are outside of the scope of a chiropractor. As such, the notice requested CNRs from any treating facilities that will assist in clarifying the injuries and whether treatment beyond MIG is necessary. The notice advised of the deadline for providing this information and that failure to do so will result in continued denial of the plan and that the applicant will remain in the MIG. As such, I do not agree with the applicant that the denial was vague and generic and find the denial was clear and unequivocal and provided sufficient medical and other reasons.
73Addressing the timing of the denial notice, the applicant argued that her representative never received the notice. Further, even if the notice was received, she argued it is dated outside the 10 business day time limit in s. 38(8) and as a consequence the respondent is required to pay for the plan under s. 38(11).
74I find that applicant has not demonstrated that the notice was not received by her. Testimony was given by Tina Lubman of the applicant’s representative firm as to non-receipt of such notice by the applicant’s representative, as well as rebuttal testimony by Fabio DiBona, ADR Specialist of the respondent, as to such notice having been sent by regular mail to the applicant’s representative within a few days after several fax attempts failed. In addition, the log notes also show that the notice was mailed to the applicant on August 15, 2024.
75Section 64(2)(d) of the Schedule provides that any document, including a notice in writing, may be delivered by ordinary mail. Further, s. 64(18) states that, in the absence of evidence to the contrary, a person is deemed to receive anything delivered by ordinary mail on the fifth business day after the day the document is mailed. While the applicant led evidence on the issue of whether her representative received the notice, there was no evidence presented to demonstrate that the applicant did not receive the notice directly by ordinary mail. In her cross-examination, the applicant confirmed that the majority of the correspondence she receives from the respondent is by regular mail. She also confirmed her home address, which I find is the address in which the notice was addressed. As such, I find the applicant is deemed under s. 64(18) to have received the notice.
76With respect to the applicant’s argument that the denial notice was provided outside the 10 business day time limit, I agree that the letter was provided late. However, I do not agree that this means that the plan is payable pursuant to s. 38(11). On this issue, I find that I am bound by the Divisional Court decision in Aviva General Insurance Company v. Catic, 2022 ONSC 6000 (“Catic”). Catic was cited in Aquino v. Novex Insurance Company, 2024 CanLII 10501 (ON LAT), which the respondent referred to. In that case, the insurer provided a denial letter outside of the 10-day period under s. 38(8) of the Schedule, and the insured did not incur any expenses up to the date the denial letter was delivered. The Court found that s. 38(11)2 compels the insurer to pay for all items in the treatment plan, but only if they are incurred and only for the period during which any denial notice remains outstanding. The facts in Catic mirror the facts before me.
77As the plan was submitted July 25, 2024, the applicant submitted the 10th business day thereafter would be August 8, 2024. As the applicant did not direct me to any evidence showing that expenses under the plan were incurred between August 9, 2024 and August 15, 2024, being the time the notice remained outstanding, I find that the applicant has not established that the plan is payable by virtue of s. 38(11).
78Accordingly, I find that the applicant has not proven on a balance of probabilities that the respondent’s denial of the plan was not compliant with s. 38(8).
Plan dated October 22, 2024 is not payable pursuant to s. 38 of the Schedule
79I find that the applicant has not established that the plan is payable pursuant to s. 38(8).
80The plan dated October 22, 2024 in the amount of $3,790.70 for psychological services was submitted by the applicant on November 4, 2024. The respondent denied the plan by way of a denial notice dated November 12, 2024. The applicant raises the same two arguments of non-compliance with s. 38 as was discussed above regarding the July 17, 2024 plan.
81I find the denial notice dated November 12, 2024 was compliant with s. 38(8). The notice identified the benefit the respondent did not agree to pay for, and indicated that based on the information on file, the applicant’s injuries fall under the MIG. The reasons went further, referring to the July 22, 2024 OCF-3 listing the injuries, and indicating that it has no CNRs from the family doctor or treating practitioners to support any pre-existing psychological conditions that would delay recovery, or any ongoing psychological impairments that would warrant treatment outside of the MIG. The notice requested such medical records to determine if the injuries are minor, and specifically requested a list of eight items, including CNRs, OHIP summary, hospital records, medical imaging, prescription history and particulars of involvement in any other automobile accidents. The notice advised of the deadline for providing this information and that failure to do so will result in continued denial of the plan and that the applicant will remain in the MIG. I find the denial was clear and unequivocal and provided sufficient medical and other reasons.
82Regarding the timing of the denial notice, similar to the July 17, 2024 plan, the applicant argued that her representative never received the notice. However, the parties agree that the denial notice dated November 12, 2024, was dated within the 10 business day time limit in s. 38(8) for the plan submitted November 4, 2024.
83I find that the applicant has not demonstrated that the notice was not received by her. The log notes also show that the notice was mailed to the applicant on November 12, 2024, and subsequently mailed to the applicant’s representative on November 14, 2024 as the fax failed. Again, the testimony of Ms. Lubman was that the applicant’s representative firm did not receive such notice by regular mail. A complicating factor was that Canada Post went on strike on November 15, 2024, suspending the delivery of regular mail. As a result, on December 2, 2024, the respondent sought and obtained consent from both the applicant and the applicant’s representative to correspond by email during the postal strike. On December 5, 2024, the respondent emailed the November 12, 2024 denial notice to the both the applicant and the applicant’s representative and the parties agree that such email correspondence was received.
84The summary of the deemed notice provisions in s. 64 of the Schedule apply equally here. However, as Mr. DiBona testified that he was aware by November 14, 2024 that the postal strike was starting the next day, I find there was evidence presented that calls into question whether the applicant would have received the notice directly by ordinary mail prior to the postal strike. However, there was no evidence presented to demonstrate that the applicant did not receive the notice directly by ordinary mail.
85Even if the November 12, 2024 notice was deemed to not be received prior to the postal strike commencing on November 15, 2024 and was treated as being late and only received by email on December 5, 2024, I do not agree that this means that the plan is payable pursuant to s. 38(11). Following the principles in Catic, as the applicant did not direct me to any evidence showing that expenses under the plan were incurred during the time the notice remained outstanding, being November 19, 2024 (the 11th business day after the day the respondent received the plan) to December 5, 2024 (the date the denial notice was emailed to the applicant), I find that the applicant has not established that the plan is payable by virtue of s. 38(8).
86Accordingly, I find that the applicant has not proven on a balance of probabilities that the respondent’s denial of the plan was not compliant with s. 38(8).
Plan dated August 23, 2024 is not payable pursuant to s. 38 of the Schedule
87I find that the applicant has not established that the plan is payable pursuant to s. 38(8).
88The parties agree that timely notice was provided for the denial of the plan dated August 23, 2024 in the amount of $2,460.00 for a psychological assessment submitted by the applicant on September 10, 2024. The respondent denied the plan by way of a denial notice dated September 16, 2024. The applicant’s argument is limited to the reasons for the denial not being compliant with s. 38(8).
89I find the denial notice dated September 16, 2024 was compliant with s. 38(8). The notice identified the benefit the respondent did not agree to pay for, and indicated that based on the information on file, the applicant’s injuries fall under the MIG. The reasons went further, referring to the July 22, 2024 OCF-3 listing the injuries, and indicating that there is a lack of medical information to confirm the diagnosis and requests further documentation in order to confirm the diagnosis. Specifically, the notice requested a list of eight items, including CNRs, OHIP summary, hospital records, medical imaging, prescription history and particulars of involvement in any other automobile accidents. The notice advised of the deadline for providing this information and that failure to do so will result in continued denial of the plan and that the applicant will remain in the MIG.
90I find the denial was clear and unequivocal and provided sufficient medical and other reasons. Accordingly, I find that the applicant has not proven on a balance of probabilities that the respondent’s denial of the plan was not compliant with s. 38(8).
Interest
91Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest does not apply.
Award
92The 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.
93As the respondent did not unreasonably withhold or delay payment of benefits, no award is payable.
The applicant is not entitled to costs
94The applicant’s request for costs is denied.
95Pursuant to Rule 19.1, when a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct. This Rule sets a high bar for conduct to attract a cost award and is an exceptional remedy.
96At end of the applicant’s closing submissions, she raised the issue of costs, and submitted that the respondent acted unreasonably by not agreeing to a request by the applicant to convert this matter to a written hearing. The applicant submitted that this wasted the Tribunal’s resources and increased the applicant’s legal expenses, and that such conduct warrants a modest cost award.
97I find that the applicant has failed to establish that the respondent acted unreasonably, frivolously, vexatiously, or in bad faith during the proceedings. The matter had been ordered to be held as a videoconference hearing by the Tribunal at a case conference on April 4, 2025, and such orders are not intended to be changed by the Tribunal, regardless of whether the parties jointly seek such change of hearing format. Further, the applicant did not comply with Rule 19.3, which requires that a submission on costs specify the requested amount. No amount was included in the applicant’s submissions. For these reasons, the applicant’s request to order costs is denied.
ORDER
98For the reasons outlined above, I find that:
i. The applicant is not statute-barred from proceeding with her claims for the plans pursuant to s. 55(1) of the Schedule;
ii. The applicant is not entitled to an IRB;
iii. The applicant remains subject to the MIG;
iv. The applicant is not entitled to interest, an award or costs; and
v. The application is dismissed.
Released: November 10, 2025
Henry Harris
Vice-Chair
