[F] v. Allstate Insurance Company of Canada, 2025 CanLII 122682

Citation: [F] v. Allstate Insurance Company of Canada, 2025 ONLAT 24-000752/AABS-A

Licence Appeal Tribunal File Number: 24-000752/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:

[LF]

(A minor by their litigation guardian, [KF]

Applicant

and

Allstate Insurance Company of Canada

Respondent

AMENDED DECISION

ADJUDICATOR:

Harouna Saley Sidibé

APPEARANCES:

For the Applicant:

Anna Szczurko, Counsel

For the Respondent:

Shelby Chung, Counsel

HEARD:

By way of written submissions

OVERVIEW

1[LF], the applicant, was involved in an automobile accident on November 7, 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, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to the OCF-18s/treatment plans (treatment plan) proposed by Rehability Occupational Therapy, as follows:

$641.40 ($3,037.01 less $2,395.61 approved) for Occupational Therapy Services, in a treatment plan dated June 2, 2022; and
$1,061.16 ($7,495.99 less $6,434.83 approved) for Social Rehab Counselling, in a treatment plan dated October 27, 2022?
$4,837.50 for Social Rehab Counselling, in a treatment plan dated November 1, 2023?
~~$5,5818.23~~ $5,518.23 for Rehab Services, in a treatment plan dated April 5, 2023?
$2,699.75 for Psychological Services, in a treatment plan dated November 17, 2023?

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

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

iv. Is the applicant liable for costs?

v. Is the respondent liable for costs?

3The respondent argued in its submissions that the applicant should be liable for costs. The applicant made the same argument as well. As such, pursuant to Rule 19.2 of the Licence Appeal Tribunal Rules, 2023, the costs claim is included in the issues above.

RESULT

4For the reasons below, I find that:

i. The applicant is entitled to the outstanding amount from the plan dated June 2, 2022, for occupational therapy. Additionally, he is entitled to the amounts from the plans dated April 5, 2023, for rehabilitation therapy ~~and November 1, 2023, for social rehabilitation counselling~~, plus interest.

ii. The applicant is not entitled to the plan dated November 17, 2023, for psychological services, nor to the outstanding amount of the plan dated October 27, 2022, or the plan dated November 1, 2023, for social rehabilitation counselling.

iii. The applicant is not entitled to an award or costs.

iv. The respondent is not entitled to costs.

PROCEDURAL ISSUES

5On February 28, 2025, the respondent filed a motion seeking two forms of relief:

An order to strike the applicant’s Statement of Law because it exceeded the page limits set out in the Case Conference Report and Order (“CCRO”) dated June 18, 2024; and
An order to exclude the Neuropsychological Assessment Report of Dr. Cherisse McKay, dated January 31, 2025, because it was served outside the deadline for final productions.

Statement of Law and Page Limit Compliance

6The CCRO clearly stated that the applicant’s written submissions were limited to 12 pages, with an additional six pages allowed for reply submissions. The CCRO states that the page limits are exclusive of evidence and authorities.

7The respondent argues that the applicant’s 9-page Statement of Law, part of their written submissions, combined with their 12-page primary submissions, totals 21 pages, 75% over the limit. This breach causes procedural unfairness by hindering fair response and violates Tribunal rules. The respondent cites Callis v. Definity Insurance, 2024 CanLII 106212, where excess pages were struck.

8The applicant states that the Statement of Law was intended to assist the Tribunal, not to advocate or argue. It's a neutral document, separate from written submissions, and not meant to bypass page limits. If the Tribunal finds exclusion necessary for fairness, he does not oppose its removal.

9The CCRO provides the Tribunal with discretion to determine whether to consider materials that do not comply with the filing requirements.

10After review, I find it appropriate to remove the statement of law from the record because the applicant’s initial submissions, including the statement of law, exceeded the 12-page limit set out in the CCRO. In accordance with Rule 9.3, which requires consideration of fairness, efficiency, and the orderly conduct of proceedings, allowing the excess pages would undermine procedural fairness and create an imbalance, particularly as the respondent complied with the page limits. Removing the statement of law restores parity between the parties and avoids any prejudice to the respondent. Notably, the applicant did not object to this removal.

11Accordingly, I will consider only the applicant’s 12-page written submissions in this hearing.

Late Production of Neuropsychological Report

12The respondent also seeks to exclude the Neuropsychological Assessment Report of Dr. Cherisse McKay, dated January 31, 2025, which was served on February 11, 2025, because it was outside the 90-day deadline for final productions set out in the CCRO.

13The respondent argues that the late service of the report deprived it of the opportunity to review the document, obtain responsive assessments, and prepare submissions accordingly. It contends that the delay causes procedural unfairness and cites Haran v. Certas Home and Auto Insurance Company, 2024 CanLII 891 (ON LAT), where similar late-served evidence was excluded due to prejudice and insufficient time for response.

14The applicant argues that delays in finding a qualified pediatric neuropsychologist caused the late report, which was served promptly on 11 February 2025. He contends that the report contains the most recent and relevant medical evidence and that excluding it would prejudice the applicant and hinder the Tribunal’s decision. The report was also recommended by the respondent’s IE assessor, Dr. Soheila Pashang, who previously identified the need for a psychological assessment.

15Rules 9.1 and 9.3 govern the exchange of evidence and final submissions. While the Tribunal has discretion to admit evidence served late, that discretion must be exercised in accordance with the factors set out in Rule 9.3, including the reasons for the delay, the relevance of the evidence, any prejudice to the other party, and the overall interests of justice and fairness.

16I accept the applicant’s explanation for the delay and note that the report was served promptly upon receipt. The report provides current, detailed insight into the applicant’s cognitive and psychological functioning, which is directly relevant to the issues in dispute. Applying the factors under Rule 9.3, the delay was minimal and reasonably explained, the evidence is highly probative, and there is no indication of significant prejudice to the respondent. In contrast, excluding the report would risk undermining the fairness and completeness of the record. On balance, the relative prejudice favours admitting the report.

17Therefore, I will admit the Neuropsychological Assessment Report by Dr. McKay into evidence.

ANALYSIS

Is the applicant entitled to the disputed treatment plans?

18To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

Outstanding Balance of the Occupational Therapy Services

19I find that the applicant is entitled to the outstanding balance of the plan for occupational therapy services.

20The applicant seeks payment of the outstanding balance of $641.40 for the occupational therapy treatment plan dated June 2, 2022, submitted initially for $3,037.01. The respondent approved $2,395.61 of the plan and denied the remaining balance, which includes $249.40 for planning services (emails, texts, calls with the treatment team, the applicant’s parents, and school) and $392.00 for day camp expenses.

21The applicant argues that the denied portions of the plan are reasonable given the accident. Access to reading materials and speech-language support would help with post-collision reading issues. Participation in day camps would also help build a routine and motivation aligned with rehabilitation goals.

22The respondent argues that planning fees are overhead, not payable under the Schedule or the Professional Services Guideline. For day camp expenses, the respondent claims insufficient medical evidence shows therapeutic benefits or supports routine building activities. It also notes that there are no credentials or training information to demonstrate that the camp leader can deliver therapy, and no evidence linking the STEM camp to the applicant’s impairments.

23In support of the applicant’s position, several medical reports were submitted. Dr. Katherine Baert, chiropractor, in her Clinical Notes and Records (“CNR”s) dated December 4, 2020, documented symptoms including dizziness, balance issues, and difficulty with reading and math comprehension, which were aggravated by sensory stimuli such as lights and noise, due to the accident. Jessica Chrapko, speech-language pathologist, in her progress report dated June 28, 2022, identified ongoing cognitive-communication difficulties, including deficits in auditory and reading comprehension, memory, attention, and executive functioning. She recommended continued speech-language pathology intervention. Dr. Keith Sequeira, physiatrist, in his report dated December 5, 2023, opined that the applicant’s injuries were caused by the accident and noted mild cognitive impairments affecting processing speed and information assimilation. He recommended using adaptive and compensatory strategies to support learning and retention.

24I find that the day camp activities and structured reading therapy are consistent with the applicant’s rehabilitation goals and supported by the medical evidence. The reports from Dr. Sequeira and Ms. Chrapko provide a clear link between the applicant’s post-accident impairments and the need for structured cognitive and therapeutic interventions.

25The respondent references the Insurer’s Examination Assessment dated May 18, 2022, in which Dr. Abdalhakim Mustafa, a neurologist, diagnosed post-concussion syndrome, chronic headaches, and speech impairment. While Dr. Mustafa noted limitations in the available information and recommended further imaging, he nonetheless supported the need for continued speech therapy. With respect to the planning expense fees, I find they fall within the Professional Services Guideline based on the nature of the services provided, which are consistent with the scope of professional therapeutic planning and coordination. The respondent has not provided sufficient evidence or argument to demonstrate that these expenses exceed or fall outside the parameters of the Guideline.

26I find that the denied parts of the occupational therapy plan, specifically the planning services and day camp expenses, are reasonable and necessary due to the accident. The medical evidence supports the therapeutic value of these services in treating the applicant’s cognitive and functional impairments.

27Accordingly, on a balance of probabilities, I find that the applicant is entitled to the outstanding balance of $641.40 under the June 2, 2022, occupational therapy treatment plan.

28I find that the applicant is not entitled to funding for the treatment plans related to social rehabilitation counselling.

29The applicant seeks funding for two treatment plans: one dated October 27, 2022, totalling $7,495.99 (with $6,434.83 approved and $1,061.16 in dispute), and another dated November 1, 2023, totalling $4,837.50, which was denied in full.

30The October 2022 plan, signed by occupational therapist Gina Matesic and social worker Brynn McCredie, proposed 24 sessions of mental health and addictions counselling, provider travel time, activity documentation, and therapeutic tools, including a Fitbit Charge and a coping kit. The goals were to reduce anxiety, support emotional expression, and facilitate a return to daily functioning.

31The applicant submits that the disputed items, namely the Fitbit, coping kit, and related tools, are reasonable and necessary to support cognitive and emotional functioning, including memory, executive functioning, sleep regulation, and anxiety management. The applicant relies on recommendations from Ms. Chrapko (speech-language pathologist), Dr. Cherisse McKay (neuropsychologist), and Dr. Soheila Pashang (social worker), all of whom identified ongoing psychological and cognitive challenges requiring continued support.

32The respondent argues that the therapeutic tools were denied due to insufficient medical evidence of necessity. It further submits that the applicant failed to provide comparative cost information or alternative treatment options to justify the reasonableness of these items. The respondent also denied brokerage fees as administrative expenses and partially denied the therapist’s written progress report, citing that the proposed rate exceeded the Professional Services Guideline. Specifically, it asserts that the maximum payable for three hours is $448.83.

33The initial social work assessment by Ms. McCredie, dated October 18, 2022, supports the applicant’s position. She diagnosed the applicant with symptoms consistent with multiple anxiety disorders and school avoidance, and she recommended social work counselling. She also suggested a coping kit, which includes a Fitbit, Spotify membership, journal, and workbooks, to support emotional regulation and anxiety management.

34On July 4, 2023, Dr. Pashang recommended a comprehensive plan for the applicant’s mental health and social reintegration following his accident. It includes a medical evaluation for depression, psychological assessment, and up to six social work sessions (virtual or in person) to address anxiety. Coordination with school supports, guidance counsellor, and social worker is also advised, along with community mental health resources, to reduce social withdrawal.

35Dr. McKay’s report dated January 31, 2025, confirms a concussion and highlights ongoing rehabilitation, including social counselling, to address cognitive and psychological effects.

The plan dated October 27, 2022

36While the respondent raised concerns about the first treatment plan, the denial primarily concerns the hourly rate, not the need or appropriateness of services. The respondent does not dispute the therapeutic value, especially regarding partial payment. The rate issue is the main reason for denial, not the plan's content or goals.

37The Professional Services Guideline (“Guideline”) establishes the maximum expenses payable by automobile insurers under the Schedule related to services provided by health care professions, or health care providers listed within the Guideline. Insurers are not prohibited from paying above any maximum amount or hourly rate established in the Guideline. It is also noted within the Guideline that services provided by health care professionals/providers, unregulated providers and other occupations not listed within the Guideline are not covered by the Guideline. For services not covered by the Guideline, the amounts payable by an insurer are to be determined by the parties involved. The Guideline further notes that automobile insurers are not liable to pay expenses for services rendered to an insured person which exceed the maximum hourly rates set out in the Guideline’s Appendix.

38While the applicant provided medical evidence supporting the therapeutic goals, he did not address the respondent’s concerns regarding cost comparisons or compliance with the Professional Services Guideline.

39Accordingly, I find the respondent’s denial of the excess hourly rate reasonable. The applicant has not established that the outstanding amount from the October 27, 2022, plan is payable.

The plan dated November 1, 2023

40The November 1, 2023, plan, also signed by Ms. Matesic and Ms. McCredie, proposed 20 counselling sessions, provider travel time, and activity documentation. The goals mirrored those of the earlier plan, focusing on reducing anxiety, improving emotional regulation, and reintegration into daily life.

41The applicant submits that, despite Dr. Pashang’s recommendation for six additional therapy sessions, the plan was denied in full. He notes that both Dr. Pashang and Dr. McKay support continued mental health treatment to address emotional disturbances and assist with the transition into adulthood.

42The respondent denied the plan as duplicative of psychological treatment and relied on the IE multidisciplinary report dated August 30, 2023. While Dr. Pashang stated that the previously proposed plan was unnecessary unless recommended by a psychological assessor, he did support six additional sessions with a social worker or psychotherapist. OT Morgan noted that the documentation did not establish a psychological diagnosis directly linking the applicant’s school performance issues to the accident.

43The applicant clarified that the social work plan addressed distinct goals from psychological treatment, including coping strategies, school reintegration, and family support.

44In reply, the applicant argued that the respondent incorrectly characterized the plan as psychological in nature. He emphasized that the plan is for social rehabilitation counselling and that it is misleading to label it as duplicative. He further submitted that concurrent care from different professionals is often necessary and that a multifaceted treatment approach is both permitted and ideal.

45While the applicant argues that the November 1, 2023, treatment plan is not duplicative and that social rehabilitation counselling aims at distinct therapeutic goals, I find that the evidence does not adequately support the proposed frequency or duration of services.

46Specifically, there is no supporting evidence beyond the provider’s recommendation for the necessity of 20 sessions of social rehabilitation counselling. No other medical or psychological expert has endorsed this level of treatment, and the broader record does not justify the need for such an extensive intervention.

47Therefore, on a balance of probabilities, I find that the outstanding amount from the October 27, 2022, plan is not payable, and that the November 1, 2023, treatment plan is neither reasonable nor necessary.

Rehabilitation Therapy

48I find that the applicant is entitled to funding for the rehabilitation therapy treatment plan dated April 5, 2023.

49The applicant seeks funding in the amount of $5,518.23 for rehabilitation therapy services. The plan, submitted by occupational therapist Gina Matesic, includes 12 sessions of rehabilitation therapy, provider travel time, mileage, medical coordination, and correspondence. The stated goals are to improve activity tolerance, apply organization and pacing strategies, reduce stress and anxiety related to academic delays, and increase participation in daily and social activities.

50The applicant submits that the proposed services are reasonable and necessary to provide individualized support for schoolwork and daily functioning. He relies on medical opinions from Dr. Sequeira and Dr. McKay. Dr. Sequeira recommended neuropsychological testing and school-based accommodations, noting a decline in post-accident functioning. Dr. McKay recommended weekly access to a rehabilitation support worker, citing persistent difficulties with motivation, task completion, and daily functioning. These challenges were corroborated by teacher feedback and parental observations. The applicant argues that the proposed therapy is essential to support recovery and reintegration into academic and social environments.

51The respondent denied the plan based on the Insurer Examination Multidisciplinary Report. Following assessments by Dr. Pashang (social worker) and Mr. Morgan (occupational therapist), the respondent concluded that the services were not reasonable or necessary. Dr. Pashang acknowledged some exacerbation of pre-existing emotional issues due to the accident, but recommended only six additional therapy sessions, contingent on further psychological assessment. Mr. Morgan found no physical or observable cognitive impairments to justify the proposed services and noted the absence of documentation directly linking academic difficulties to the accident. Both assessors emphasized the need for further evaluation before approving such services.

52I have reviewed the medical evidence submitted by both parties. The reports from Dr. Sequeira and Dr. McKay provide consistent and credible evidence of post-accident impairments affecting the applicant’s cognitive and emotional functioning. These impairments have impacted his ability to complete schoolwork, manage daily routines, and engage socially. The proposed rehabilitation therapy is aligned with the recommendations of treating professionals and is tailored to address the specific challenges identified.

53While the respondent’s IE assessors raised concerns about documentation and the need for further assessment, I find that the treating professionals have provided sufficient clinical justification. The therapy plan is structured, goal-oriented, and supported by evidence of functional decline following the accident.

54Accordingly, on a balance of probabilities, I find that the rehabilitation therapy treatment plan dated April 5, 2023, in the amount of $5,518.23, is reasonable and necessary as a result of the accident.

Psychological Services

55I find that the applicant is not entitled to funding for the psychological services treatment plan dated November 17, 2023.

56The applicant seeks funding of $2,699.75 for psychological services. The plan, submitted by occupational therapist Gina Matesic, includes 12 sessions of mental health and addictions therapy, one support service documentation, and one planning service. The stated goals are to improve coping mechanisms and facilitate a return to activities of normal living.

57The applicant submits that the proposed psychological treatment is medically necessary and supported by multiple health professionals. Neuropsychologist Dr. McKay diagnosed the applicant with adjustment disorder with anxiety and depressed mood, which she opined was directly exacerbated by the accident. She concluded that the applicant would not be experiencing the same breadth and severity of symptoms but for the accident. Similarly, IE neurologist Dr. Mustafa recommended psychotherapy to support the applicant’s psychological recovery. The applicant also notes that he has incurred $2,870.00 in out-of-pocket expenses for social worker counselling and psychotherapy, underscoring the urgency and importance of continued mental health support.

58The respondent denied the plan based on the August 30, 2023, Insurer Examination Multidisciplinary Report prepared by Dr. Pashang and occupational therapist Mr. Morgan. Dr. Pashang recommended a maximum of six additional therapy sessions to address anxiety-related concerns and requested the CV of the proposed social worker to assess suitability. The respondent also noted that the hourly rate proposed in the plan exceeded the Professional Services Guideline rate of $149.61. Additionally, the respondent argued that the plan lacked a psychological assessment and appeared duplicative of services already proposed by social worker Larissa Maunula. As such, the respondent requested that the applicant choose between proceeding with either a registered psychologist or a qualified social worker, but not both.

59The applicant asserts that the proposed social worker's CV was provided to the respondent. However, he did not direct me to the evidence of that submission. Furthermore, the applicant has not supplied evidence to justify payment for services exceeding the hourly rate or to show that such fees are payable under the Guideline for unregulated providers.

60I have reviewed the medical evidence submitted by both parties. Dr. McKay’s neuropsychological report provides a clear diagnosis and directly links the applicant’s psychological impairments to the accident. Her recommendation for ongoing psychotherapy aligns with the applicant’s treatment history and is supported by Dr. Mustafa’s earlier assessment. The applicant’s out-of-pocket expenses further highlight the necessity and urgency of continued mental health support.

61However, while the need for psychological support is established, the proposed treatment plan is not reasonable in its current form. The plan lacks a psychological assessment, appears duplicative of services already proposed by another provider, and exceeds the hourly rate permitted under the Professional Services Guideline. The applicant has not provided sufficient evidence to justify a deviation from the Guideline or to support the necessity of the proposed provider over alternatives.

Interest

62Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies to any overdue payment.

Award

63The applicant seeks an award under section 10 of Regulation 664. Under section 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 Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” [ See, for e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

64The applicant submits that the respondent unreasonably withheld and delayed payment of medical and rehabilitation benefits, despite consistent medical evidence supporting their necessity. He argues that the respondent’s prolonged denials caused harm, including out-of-pocket expenses, and reflect a blameworthy approach to claims handling that warrants an award at the higher end of the available range.

65The respondent submits that its conduct was reasonable and procedurally compliant. It argues that it acted within the scope of the Schedule, including conducting insurer examinations and partially approving treatment plans. The respondent relies on Barrie v. Intact Insurance Company, 2022 CanLII 45260 (ON LAT), to support its position that an award is not warranted where the insurer’s actions are not demonstrably unreasonable.

66I have considered the submissions and evidence of both parties. While the applicant has incurred out-of-pocket expenses and some treatment plans were denied despite support from treating professionals, I do not find that the respondent’s conduct rises to the level required for an award under section 10. The respondent conducted insurer examinations, provided partial approvals, and raised concerns that were within the scope of the Schedule. There is insufficient evidence that its conduct was excessive, unyielding, or otherwise unreasonable in the manner contemplated by section 10.

67I find that the respondent’s conduct does not meet the high threshold required for an award under section 10. While the applicant’s frustration is understandable, the evidence does not support a finding of unreasonable withholding or delay.

68Accordingly, I decline to grant an award under section 10 of Regulation 664.

Costs

69I find that neither party is entitled to costs in this matter.

70The respondent seeks a costs award under Rules 19.1 and 19.5 of the LAT Rules, in the amount of $100.00, arising from its motion to strike the applicant’s Statement of Law and exclude the late-served Neuropsychological Report.

71Rule 19 of the LAT Rules permits an adjudicator to award costs where a party has acted unreasonably, frivolously, vexatiously, or in bad faith during the proceeding.

72The respondent submits that the motion was necessary to address breaches of the CCRO and that the applicant’s conduct caused procedural unfairness and prejudice. It argues that the applicant’s actions required additional time and resources to correct the record and ensure a fair hearing. The respondent characterizes the conduct as frivolous and inconsistent with the Tribunal’s Rules and submits that a modest costs award is appropriate to address the resulting inefficiencies.

73The applicant did not provide a detailed response to the costs claim but requested the costs of the motion without elaboration or supporting argument.

74I have considered the parties’ submissions and the procedural history. While the applicant’s submissions exceeded the page limit and the Neuropsychological Report was served late, I do not find that the applicant’s conduct meets the high threshold required for a costs award under Rule 19. The applicant provided a reasonable explanation for the late service and did not object to the exclusion of the Statement of Law if deemed necessary for fairness. The issues raised in the motion were addressed through the Tribunal’s discretion and did not result in undue delay or disruption to the hearing process.

75On a balance of probabilities, I find that neither party acted in a manner that warrants a costs award under Rule 19. Accordingly, both the respondent’s and the applicant’s requests for costs are denied.

ORDER

76For the above reasons, it is ordered that: