Licence Appeal Tribunal File Number: 23-015124/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:
Nazeefa Omar
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR: Harouna Saley Sidibé
APPEARANCES:
For the Applicant: Joshua Gautreau, Counsel
For the Respondent: Kristofer B Angle, Counsel
HEARD: By way of written submissions
OVERVIEW
1Nazeefa Omar, the applicant, was involved in an automobile accident on February 21, 2020, 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, Aviva General Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
[2] The issues in dispute are: i. Is the applicant entitled to the assessments proposed by Hydro Health, for $2,803.52 for a chronic pain assessment, in a treatment plan/OCF-18 (“plan”) submitted on February 10, 2022? ii. Is the applicant entitled to interest on any overdue payment of benefits? iii. Is the respondent entitled to costs? iv. Is the applicant entitled to costs?
3In her written submissions, the applicant withdrew the issues related to the Neurological Assessment for $2,923.30, dated January 18, 2024, and the EMGs for $2,923.30, dated February 6, 2024.
4In the submissions, both the respondent and the applicant requested costs, which have been added to the issues in dispute as set out above.
RESULT
[5] For the reason below, I find that:
- The applicant is entitled to the disputed treatment plan, plus interest.
- The applicant is not entitled to costs.
- The respondent is not entitled to costs.
PROCEDURAL ISSUES
6A case conference was held on May 24, 2024, and the Case Conference Report and Order (“CCRO”) was issued on May 27, 2024. The matter was scheduled to proceed by written hearing on February 14, 2025. Prior to the hearing, both parties brought motions concerning the admissibility of late insurer examination (“IE”) reports and related expert documentation.
Respondent’s Notice of Motion
7On December 18, 2024, the respondent filed a Notice of Motion (“NoM”) seeking leave to file and rely on a Section 44 multidisciplinary IE report dated November 1, 2024, and an addendum dated November 8, 2024. The respondent acknowledged that the applicant opposed this request.
8The respondent argues that the late insurer examination reports should be admitted despite non-compliance with the Tribunal’s disclosure order, claiming the delay was not its fault. It states that reasonable steps were taken to arrange assessments before the case conference, with notification on January 23, 2024, and reschedulings mainly due to the applicant’s illnesses. The assessments were completed on November 1, 2024, and reports were served on November 7 and 11. The respondent contends that late evidence can be admitted if it is relevant, the parties are notified, and prejudice can be remedied. It argues that the reports are relevant to the disputed benefits, and the applicant had notice since September 3, 2024. The reports were received before the hearing, preventing prejudice. Rule 3.1 of the Licence Appeal Tribunal Rules, 2023 (“LAT Rules”) emphasizes fairness and efficiency and asserts that excluding the reports would be unfair, thereby preventing reliance on important medical opinions.
9The applicant opposes the respondent’s motion to admit late IE reports, arguing that the applicant did not cause the delays. The original assessments, scheduled for February and March 2024, would have been timely if done as booked. The respondent rescheduled for unrelated reasons, and the applicant missed the rescheduled dates due to illness but attended once recovered. The reports were served months after the disclosure deadline, and admitting them without allowing late filing would cause prejudice. The applicant agreed to consent if both parties could submit their filings late, but the respondent declined, which the applicant argues breaches the fair consumer-protection purpose of the Schedule.
10I decline to grant the respondent’s motion to admit the late insurer examination reports. Rule 3.1 of the LAT Rules requires that proceedings be conducted in a fair, open, and efficient manner. While the Tribunal may exercise discretion to admit late evidence where prejudice can be addressed, I am not satisfied that the respondent has demonstrated that the prejudice to the applicant can be adequately remedied in this case. The reports were served months after the disclosure deadline and shortly before the applicant’s submissions were due, leaving insufficient time for the applicant to respond meaningfully. The applicant offered a reasonable solution on November 17, 2024, to allow both parties to file late evidence to mitigate prejudice. The respondent refused this offer and instead sought unilateral relief. Permitting the respondent to rely on late reports while denying the applicant the same opportunity would undermine procedural fairness and the consumer-protection principles underlying the Schedule.
11Accordingly, the motion is dismissed.
The applicant’s Notice of Motion
12On February 5, 2025, the applicant filed a motion to strike an Acknowledgement of Expert’s Duty (“AoED”) form submitted by the respondent after the applicant’s initial submissions deadline. The applicant argued that the late filing constituted bad faith and amounted to new evidence intended to support the respondent’s case, contrary to the Tribunal’s disclosure rules. The applicant relied on the test for admitting new evidence set out in prior Tribunal decisions. However, in reply submissions dated February 7, 2025, and filed February 10, 2025, the applicant withdrew this motion, noting that both parties had introduced new material in response to each other’s submissions and that the motion was no longer necessary.
13Despite the withdrawal, on February 14, 2025, the respondent filed submissions addressing the withdrawn motion, asserting that the applicant’s reply contained new arguments, allegations, and evidence not raised in the initial submissions.
14With respect to the applicant’s withdrawn motion regarding the AoED form, no ruling is required as the motion is no longer before the Tribunal.
Leave to File a Sur-reply
15The respondent asserts that the applicant, for the first time in reply submissions, questioned the qualifications of Dr. Paul Stacey without adhering to the procedure outlined in Rule 10.4 of the Licence Appeal Tribunal Rules, 2023 (“LAT Rules”).
16The respondent also contends that the applicant introduced new, prejudicial arguments and evidence in reply submissions (paragraphs 4, 7, 12-15), including: false claims about Dr. Grigory Karmy’s report, bad faith in disputing active treatment, misrepresentation of treatment plans, reliance on a misaligned case, improper inference regarding treatment need, and misrepresentation of medical evidence.
17The respondent asserts that these circumstances justify a sur-reply to ensure procedural fairness. It relies on C.A. v. Intact Insurance Company, 2018 CanLII 130861 (ONLAT), where the Tribunal approved a sur-reply in a similar situation.
18The applicant argues that the respondent’s reply addresses a withdrawn motion that was made in response to the respondent’s request. The respondent’s reply improperly introduces new arguments. The applicant states that her reply was served on February 7, 2025, at 5:12 p.m., clearly indicating the motion was withdrawn. The respondent was aware of the withdrawal and cannot now rely on it to justify new arguments or procedural relief.
19Sur-reply submissions may only be necessary when a party has made additional legal arguments or introduced additional issues in reply, provided an inaccurate statement of the law, or an inaccurate statement of facts critical to the determination of the issues in dispute.
20I find that the applicant’s reply submissions expand upon arguments already raised in the initial submissions and directly respond to the respondent’s submissions. While the Tribunal generally discourages new material at the reply stage, the reply in this case remains within the scope of proper rebuttal. I also find that the February 5, 2025, motion was withdrawn, and the respondent was made aware of this. The respondent’s request for a sur-reply is based on a motion no longer before the Tribunal and seeks to address matters that are more appropriately dealt with during the substantive issues hearing. Moreover, Rule 10.4 does not apply in this context, as no testimony is being tendered.
21I also find that the case of C.A v. Intact Insurance Company, submitted by the respondent, is not applicable here because it involved clarifying a factually misleading argument in reply submissions, which is not the situation in this case.
22Accordingly, I decline to grant the respondent permission to file a sur-reply. The Tribunal will proceed to consider the parties’ submissions as they stand. No further procedural relief is warranted.
ANALYSIS
Is the applicant entitled to the disputed treatment plan for a Chronic Pain Assessment?
23I find that the chronic pain assessment dated February 10, 2022, is reasonable and necessary.
24Under sections 15 and 16 of the Schedule, the applicant bears the onus of establishing, on a balance of probabilities, that the proposed treatment or assessment plan is reasonable and necessary as a result of the accident. To meet this burden, the applicant must demonstrate that the plan's goals are clearly defined, that the proposed services are likely to achieve those goals to a reasonable degree, and that the associated costs are proportionate to the expected benefits.
25In assessments, the purpose is to determine whether a condition warrants further investigation. The applicant must show that there is a reasonable basis to believe that such a condition exists, and that the assessment is necessary to clarify the diagnosis or guide treatment.
26The applicant seeks $2,803.52 in funding for a chronic pain assessment. The plan is signed by Dr. Michael Gofeld, a physician, and David Huang, a chiropractor. The stated goals include reducing pain, restoring functional tolerance and endurance, and returning to activities of daily living.
27The plan includes a total body test, documentation support for the claim form, three sessions of interpretation services, and seven sessions of transportation services.
28In support of the assessment, the applicant relies on the December 7, 2023, report of Dr. Grigory Karmy, a pain management specialist, who diagnosed chronic pain syndrome and recommended multidisciplinary treatment. The applicant also relies on a note from Dr. Sadeghi, the applicant’s family doctor, dated December 4, 2024, which states that the accident aggravated the applicant’s pre-existing fibromyalgia.
29The respondent argues the assessment is unnecessary since the applicant’s fibromyalgia predated the accident, and she was not in active treatment when the plan was submitted. It states that there was no need to investigate further, and the lack of active treatment undermines the necessity of the assessment. The respondent notes that the applicant had a separate chronic pain assessment with Dr. Karmy on October 30, 2023, approximately 20 months after submitting the OCF-18, raising questions about the plan's reasonableness. The respondent claims the applicant hasn't shown that the plan’s goals are met or that the costs are reasonable.
30In her reply submissions, the applicant notes that the respondent acknowledged she did not fully understand her condition, making it reasonable to investigate if the accident worsened her pain and to find treatment. The applicant argues that the insurer’s claim that no assessment is needed without active treatment is unsupported by case law and contradicts consumer protection principles outlined in the Schedule. She highlights Dr. Karmy’s recommendations for therapies like physiotherapy, acupuncture, aquatherapy, massage, and chiropractic care. She also submits medical records, including Emergency department notes from February 21, 2020, which mention multisystem trauma. A March 25, 2020, report from Dr. Dhillon diagnoses fibromyalgia and shoulder tenderness, ultrasound findings of shoulder injuries, and records from Dr. Sadeghi from March 16, 2021, showing ongoing shoulder pain and treatment.
31Dr. Karmy’s December 7, 2023, report details a range of accident-related complaints and diagnoses, including chronic pain syndrome, post-traumatic headache, possible mild traumatic brain injury, and various musculoskeletal conditions. He attributes these conditions to the accident and recommends a multidisciplinary treatment approach.
32The respondent’s own Section 44 multidisciplinary assessment, dated October 17, 2024, by Dr. Paul Stacey, a specialist in physical medicine and rehabilitation, documents similar complaints, further corroborating the applicant’s symptomatology.
33I prefer the evidence of Dr. Karmy and Dr. Sadeghi. Although the applicant experienced pre-existing pain, this does not fundamentally undermine the reasonableness of evaluating the impact of the accident on her condition. In my view, an assessment meant to clarify causation and inform treatment can be reasonable even if conditions existed beforehand. Furthermore, the respondent did not demonstrate that the treatment plan is duplicative of any other assessment.
34Accordingly, on a balance of probabilities, I find that the chronic pain assessment dated February 10, 2022, is reasonable and necessary.
Interest
35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue benefits payment in accordance with section 51.
Costs
36I find that neither party has met the threshold under Rule 19 of the LAT Rules to warrant an award of costs.
37Rule 19 grants the Tribunal discretion to award costs if a party acts unreasonably, frivolously, vexatiously, or in bad faith. As the Tribunal has indicated, the purpose of Rule 19 is to uphold civility and order during proceedings, discourage conduct that could jeopardize the fair resolution of an application, and promote respect for the Tribunal’s process and participants.
38The respondent claims that the applicant acted unreasonably and in bad faith by failing to formally withdraw the applicant’s scheduled motion, thereby causing unnecessary expenses and compelling responses. The respondent seeks $175 in costs, noting that it requested a withdrawal on February 6, 2025. It cites L.H. v. Aviva Insurance Company of Canada, 2018 CanLII 130869 (ONLAT), where costs were awarded for failing to withdraw a motion. The respondent also argues that the applicant’s counsel used the motion to gain leverage in a separate late evidence motion, leading to unnecessary costs, inconvenience, and the wasting of Tribunal resources.
39The applicant argues that the respondent’s submissions contain new, unrelated allegations to the withdrawn motion. The applicant claims the respondent improperly used its response to a withdrawn motion to seek new orders without filing a separate motion, thereby engaging in unfair conduct. The applicant requests that the February 14, 2025, motion response be struck from the record, noting that it was promptly withdrawn within a day and that no costs should be awarded. Instead, the applicant seeks $1,000 in costs, alleging the respondent’s conduct violated Tribunal norms.
40I find that the applicant withdrew the motion, and this withdrawal was communicated in a timely manner and acknowledged by the respondent. The respondent was not materially prejudiced, and its decision to respond to the withdrawn motion was unnecessary. While the applicant alleges bad faith, I do not find evidence to support that claim. Similarly, I do not find that the respondent’s conduct warrants a cost award in favour of the applicant.
41Under Rule 19, costs may only be awarded where a party has acted unreasonably, in bad faith, or in a manner that has unnecessarily lengthened the proceeding. Although both parties contributed to procedural inefficiencies, these actions do not rise to the level of unreasonable or bad faith conduct contemplated by Rule 19. The respondent’s choice to respond to a withdrawn motion was unnecessary but does not amount to conduct that is egregious or prejudicial enough to justify costs.
42Therefore, no costs will be awarded to either party.
ORDER
[43] For the above reasons, it is ordered that: i. The applicant is entitled to the dispute treatment plan, plus interest. ii. The respondent is not entitled to costs. iii. The applicant is not entitled to costs.
Released: November 18, 2025
Harouna Saley Sidibé Adjudicator