Citation: Bisnauth v. Jevco Insurance, 2025 ONLAT 23-015468/AABS

Licence Appeal Tribunal File Number: 23-015468/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:

Bishnu Bisnauth

Applicant

and

Jevco Insurance

Respondent

DECISION

ADJUDICATOR:

Sarah Sheaves

APPEARANCES:

For the Applicant:

Shahzad Ayub, Counsel

For the Respondent:

Kristen Ogden, Counsel

HEARD:

By Way of Written Submissions

1Bishnu Bisnauth, the applicant, was involved in an automobile accident on June 30, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant was denied benefits by the respondent, Jevco Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in section 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 $1,197.50 for physiotherapy services, proposed by True Life Wellness and Physiotherapy in a treatment plan (“plan”) dated November 18, 2020?

iii. Is the applicant entitled to $3,676.17 for physiotherapy services proposed by Advanced Physiotherapy Clinic in a plan dated January 24, 2022?

iv. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Imperial Medical Assessments in a plan dated September 29, 2023?

v. Is the applicant entitled to $300.00 for a psychological pre-screen assessment proposed by Imperial Medical Assessments in a plan dated October 17, 2023?

vi. Is the applicant entitled to $2,486.00 for a physiatry assessment proposed by Imperial Medical Assessments in a plan dated October 17, 2023?

vii. Is the applicant entitled to $2,200.00 for a chronic pain assessment proposed by Dr. Cavaliere in a plan dated November 30, 2023?

viii. Is the applicant entitled to $2,200.00 for a hyperbaric oxygen assessment proposed by Dr. Cavaliere in a plan dated November 30, 2023?

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

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

RESULT

4I find that:

i. The applicant’s injuries are predominantly minor as defined in section 3 of the Schedule.

ii. All the disputed plans are payable in accordance with section 38(11) of the Schedule.

iii. The applicant is not entitled to an award.

iv. The applicant is entitled to interest on any overdue payments.

ANALYSIS

The Appellant sustained predominantly minor injuries as defined under the Schedule

5Section 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.”

6An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under section 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG.

7The applicant hasn’t made any submissions that his injuries warrant removal from the MIG. He also hasn’t provided any medical evidence to prove his injuries do not fall within the MIG in his submissions.

8The Appellant argues that the respondent is prohibited from taking the position that he has a MIG impairment, because it did not comply with section 38 of the Schedule when it denied the disputed plans.

9The respondent submits that even if its notices under section 38 were insufficient, the consequences of non-compliance only extend to the plans in dispute and not to the accident benefit claim as a whole. It says that it is still entitled to take the position the applicant is in the MIG elsewhere, such as with other plans which may be in dispute, and in this proceeding.

10The respondent relies on Zheng, Cai v Aviva Insurance Company of Canada, 2018 ONSC 5707, where the Divisional Court said that section 38(11) does not impose a permanent prohibition for an insurer to claim that the MIG applies to a claimant.

11I agree with the respondent’s submissions on this issue. The Divisional Court’s decision in Zheng, Cai is binding on me. The applicant did not make any submissions on this issue to persuade me otherwise.

12I find that while the respondent in this application is prohibited from taking the position that the MIG applies to the plans in dispute in this appeal due to non-compliance with section 38(8) of the Schedule, that prohibition only extends to those specific plans. It does not prevent the respondent from taking a position that other plans, which are not subject to this appeal, are subject to the MIG.

13The applicant has the burden to prove, on a balance of probabilities that his injuries do not fall within the MIG. He hasn’t adduced any evidence or made any submissions in this regard. Therefore, I find that he has not met his burden and is subject to the MIG.

14As I have found that the applicant is in the MIG, it is not necessary for me to consider whether the disputed plans are reasonable and necessary as a result of the accident. In any event, the applicant has not argued the plans are reasonable and necessary. He has submitted that they are payable under section 38(11) of the Schedule. I will deal with that analysis below.

The requirement for notice under section 38(8) of the Schedule

15The applicant submits that the disputed plans are payable because the respondent did not comply with section 38(8) of the Schedule. He argues that because of this non-compliance, the plans are payable under section 38(11).

16The respondent argues that the reasons it provided when denying the plans pursuant to section 38(8) were sufficient, because it had limited medical records in its possession when it denied the plans.

17Section 38(8) of the Schedule sets out strict requirements for insurers responding to plans. It requires an insurer to give an insured person a notice that identifies the goods, services, assessments and examinations described in the plan that it agrees to pay, and those it does not agree to pay. It requires an insurer to give the medical reasons and all the other reasons why the insurer considers any unapproved goods and services, or the cost of them, not to be reasonable and necessary. The notice must be delivered within 10 business days of receipt of the plan.

18Section 38(9) of the Schedule also requires an insurer to notify the insured person if it believes the MIG applies to their claim.

19For each of the disputed plans, the respondent did notify the applicant that it believed the MIG applied to his claim. I find that the respondent did comply with section 38(9).

20I find that the respondent’s notices under section 38(8) were insufficient because they did not provide adequate medical and other reasons for why the respondent decided the plans were not reasonable and necessary.

21The applicant relied on B.H. v Aviva, 2018 84051 (ONLAT), a decision which outlines factors to consider whether a section 38(8) notice complies with the requirements in the Schedule.

22Per B.H., ‘medical and any other reasons’ should at the least include details about the insured persons medical condition, or information that the respondent does not have but requires. It should also refer to the specific benefit at issue, and any section of the Schedule the respondent relies upon. It should be clear and sufficient enough for an unsophisticated person to make an informed decision to accept or dispute the decision.

23The applicant also relied upon T.F. v Peel Mutual Insurance Company, 2018 CanLII 39373 (ONLAT). This decision further clarified that a general assertion by an insurer that available medical documentation does not support the need for treatment was not a medical reason. It said the insurer was obligated to draw attention to the specific documentation and relevant points within the documentation that the insurer was relying upon in support of its decision to deny the benefit. It concluded while an exhaustive list of medical documentation was not required, some detail about the insured’s condition as described in the documentation was.

24Of relevance in T.F., the insurer’s statement that clinical notes and records did not support the need for treatment was found to be insufficient medical and other reasons. T.F. suggests that an insured person is entitled to know which clinical notes and records formed the basis of the insurer’s opinion and in a meaningful way, what those records said about the insured’s condition.

25While I am not bound by past Tribunal decisions, I note that both B.H. and T.F. have been accepted and followed at the Tribunal on numerous occasions and I agree with Executive Chair Lamoureux’s analysis and reasoning. I find that at the very least, an insurer is obligated to draw attention to specific documentation and relevant points within the documentation it relies upon and should at the least confirm a claimant’s medical diagnoses, and the specific benefits at issue.

The Respondent’s notices under section 38(8) of the Schedule were insufficient

Issue #2 – Plan in the amount of $1,197.50 for physiotherapy

26With regard to the plan for physiotherapy in the amount of $1,197.50, the respondent sent two denial notices. The first on November 20, 2020, said “a review of your file reveals that you have sustained predominantly soft tissue injuries”. The respondent identified information it required and requested clinical notes and records. The respondent said once it received the records it would respond to the plan.

27I find that the notice dated November 20, 2020, did not provide sufficient medical or other reasons for the denial of the plan. Specifically, it did not provide any details about the applicant’s medical condition or identify the documents in the file that were reviewed to make the decision, or what those documents said.

28The respondent submitted its notices were sufficient because it had limited medical records in its possession when it sent the denial, but I do not agree with this submission. The respondent said it reviewed documents in its file to make its decision in the notice. As outlined in T.F. above, it was therefore obligated to say what the documents were that it reviewed, and what those documents said about the applicant’s condition. It did not do so.

29The respondent’s second denial notice was dated February 15, 2022. In this notice, the respondent did not identify the specific benefits in dispute in the plan. The medical and other reasons for the denial were that the applicant sustained pre-dominantly soft tissue injuries.

30In the second notice the respondent acknowledged that it had received clinical notes and records that it had requested. It said it now needed a s. 44 assessment to determine if the applicant was in the MIG.

31I find that the second notice was also deficient. It did not comply with the requirements of section 38(8), and it did not cure the prior insufficient notice. In particular, the respondent did not identify which clinical notes and records it received, nor what the records said. It did not even indicate that the respondent had read and considered the records when making the decision. The notice did not identify any details about the applicant’s medical condition. As a result, I find that the respondent did not comply with section 38(8) in relation to the plan of True Life Wellness and Physiotherapy in the amount of $1,197.50.

Issue #3 – Plan in the amount of $3,676.17 for physiotherapy

32The respondent sent a notice denying the plan for physiotherapy in the amount of $3,676.17 on February 15, 2022. The letter was nearly identical to the second denial notice sent for the prior plan for physiotherapy. The only difference in this letter was it referenced a different plan.

33I find that the notice is deficient for the same reasons I set out above. It did not indicate what clinical notes and records were received, or what those records said. It did not indicate that the respondent had read and considered those records. The notice did not identify any details of the goods and services at issue in the plan. It did not identify any details about the applicant’s medical condition.

34As a result, I find the respondent did not comply with section 38(8) in relation to the plan of Advanced Physiotherapy clinic in the amount of $3,676.17.

Issue #4 – Plan in the amount of $2,200.00 for a psychological assessment

35The respondent sent its notice denying the plan for a psychological assessment in the amount of $2,200.00 on October 17, 2023. The reason for the denial was that the respondent did not ‘have the benefit of updated medical documentation to support a psychological impairment’ as a result of the accident. The respondent requested clinical notes and records.

36I find that the notice is deficient because it did not identify any details about the applicant’s medical condition. It did not identify the medical information the respondent did have in its possession, why that documentation was insufficient, and what it said about the applicant’s condition.

37In this case, the respondent had already confirmed that it did have some clinical notes and records in its possession. It also had a Psychological Status Evaluation Report which the service provider had attached to the plan when it was submitted to the respondent. I find that a failure to draw any reference to the available medical documentation in the respondent’s file, or the applicant’s medical conditions when denying the plan resulted in non-compliance with section 38(8).

Issue #5 – Plan in the amount of $300.00 for a psychological pre-screen assessment

38The respondent sent its notice denying the plan for a psychological pre-screen assessment in the amount of $300.00 on October 17, 2023. The letter was nearly identical to the letter sent denying the psychological assessment. The only difference in this letter was that it referenced a different plan.

39I find that the notice is deficient for the same reasons I set out above. The notice did not identify any details about the applicant’s medical condition. It did not identify the medical information the respondent did have in its possession, why that documentation was insufficient, and what it said about the applicant’s condition.

40As outlined in T.F., the respondent was obligated to draw attention to the specific documentation and relevant points within the documentation that the insurer was relying upon in support of its decision to deny the benefit. It did not do so.

Issue #6 – Plan for a physiatry assessment in the amount of $2,486.00

41The respondent sent its notice denying the plan for a physiatry assessment in the amount of $2,486.00 on October 17, 2023. The medical and other reasons given for the denial were that the respondent did not have updated medical records to support that the applicant was not subject to the MIG. It also said that the plan was submitted outside of the standard healing times for minor injuries. The respondent requested updated clinical notes and records.

42The applicant relies upon Taksali v Aviva Insurance Company, 2023 CanLII 96347. In this decision, the adjudicator found that reference to a theory about the usual recovery periods for injuries was not a sufficient medical or other reason and did not comply with the requirements of the Schedule.

43While this decision dealt with compliance with notice requirements under section 44(5) of the Schedule, I find that it is still relevant. The analysis of whether the notice complies with the Schedule considers the same wording as section 38(8) and the same factors as outlined in B.H. and T.F. While I am not bound by this decision I agree with the reasoning. References to general medical theories about the usual healing times for certain injuries do not constitute a sufficient medical or other reason to deny a plan for this specific applicant.

44In the respondent’s notice, it did not make any reference to the applicant’s medical conditions, or any of the medical documents that were already in its possession and what they said about the applicant’s injuries.

45At this point in time, the respondent had clinical notes and records in its possession and had conducted a section 44 physical assessment of the applicant. If the respondent was suggesting that the documentation it already had in its possession was insufficient to make a decision, it should have outlined why that was the case.

46I find that the respondent’s failure to draw any reference to the available medical documentation in its file, or the applicant’s medical conditions when denying the plan resulted in non-compliance with section 38(8).

47While T.F. confirms that insurance adjusters must not be held to a standard of perfection, or expected to articulate something resembling a medical opinion, it does confirm that insurers should be identifying a claimant’s medical conditions, the medical documentation they are relying upon, and the relevant information in those documents, when they deny a plan under section 38(8).

Issues #7 and #8 – Plans in the amount of $2,200.00 for a chronic pain assessment and $2,200.00 for a hyperbaric oxygen assessment

48The respondent sent one letter denying the plans for a chronic pain assessment in the amount of $2,200.00, and a hyperbaric oxygen assessment for $2,200.00 on November 30, 2023. This letter also served to notify the applicant of a section 44 assessment and reiterated the denial of the plan for the physiatry assessment.

49Firstly, the letter provides medical and other reasons for the requested section 44 examination. It did not specifically provide medical and other reasons for the denial of the plans pursuant to section 38(8).

50The section of the letter outlining what the insurer did not agree to pay did not specifically mention the goods and services that were at issue. The only reason given for the denial of the plans was that the respondent believed the applicant was in the MIG.

51The notice under section 38 for these plans was not sufficient. It did not specifically provide medical and other reasons for the denial under section 38(8) of the Schedule. It did not mention the applicant’s medical conditions or any medical documents or opinions the respondent was relying upon to make its decision. It did not request any documents from the applicant. In short, it did not comply with any of the factors outlined in B.H. and T.F. I therefore find that the notice did not comply with s. 38(8) of the Schedule.

52The respondent submitted that its notice was sufficient because it only had 13 pages of clinical notes and records and a handful of hospital records in its possession at the time it was written. However, this is all the more reason why it would not have been a burden for the respondent to specifically point to the diagnosis in the records it did have, and to mention the documents it was relying upon when it made its decision.

53The respondent relies on Fernandez v Certas 2023 CanLII 65812. It submitted that in this case, the adjudicator agreed that a notice under section 38(8) was sufficient if it said that an insurer was maintaining a claimant was in the MIG in the absence of medical documentation it had requested. I do not agree that this is a correct interpretation of sufficient notice under the Schedule.

54Firstly, the Fernandez case did not analyze any of the factors in B.H. and T.F. to determine whether there was sufficient notice given. I have confirmed I am persuaded by the factors in these cases. Second, the respondent in this case did not tell the applicant in this case that it would be maintaining its denial in the absence of medical documentation as occurred in the Fernandez case. Third, even if the respondent had made that statement, it would not satisfy the elements of sufficient reasons outlined in B.H. and T.F. And finally, even when the respondent did receive the clinical notes and records of the applicant, it did not confirm it had read and considered them, or make any reference to their contents, when reiterating its denials.

The Respondent’s letters following section 44 examinations did not cure its non-compliance

55The respondent requested examinations under section 44 in relation to the plans in dispute for this appeal. Following the examinations it sent the applicant letters reiterating its denial of the plans, specifically referencing the medical findings of its assessors. It submits that these letters cure any deficiency in its section 38(8) notices.

56The applicant submitted that the respondent is barred from relying upon the section 44 examinations and their findings because its notices under section 44 (5) were insufficient and did not comply with the requirements in the Schedule. It argues that the respondent should not be permitted to rely on assessments it obtained improperly without complying with the Schedule, to retroactively bolster its denial of benefits with proper medical and other reasons.

57The applicant relies on B.H. and T.F., which held that the requirements for notice under section 44(5) were the same as those under section 38(8). These cases say that the notice requirements for section 44(5) of the Schedule should be “strictly” construed.

58The applicant also relies on Taksali. In this case the Vice-Chair Campbell applied similar factors found in B.H. and T.F. and found that the insurer’s notice under section 44(5) was insufficient and did not comply with the Schedule. The non-compliance was because the notice did not reference the insured person’s medical condition or the medical documentation in its possession used to make the decision.

59Further, in Taksali, Vice-Chair Campbell held that providing the findings from improperly procured section 44 assessments could not remedy the initial insufficiency of the insurer’s section 38 notices. He held that an insurer could not justify the insufficiency of its notices with reasons it did not have at the time of denial. He held that the section 44 assessment results were void and could not be considered in the appeal.

60I agree with the analysis in Taksali. Not only do I find the reasoning in Taksali compelling, the respondent did not point me to any contrary legal authority to dispute this line of reasoning. It also did not make any argument as to why I should not follow it, in this case.

61Despite the lack of submissions from the respondent about whether the reasoning in Taksali was correct, I considered other recent cases at the Tribunal where Taksali has not been followed. I was not persuaded by these cases that the interpretation in Taksali is incorrect.

62The general suggestion in the recent case law appears to be that if a section 44 notice is improper, then the applicant has the option of refusing to attend and that this is the correct remedy for an insurer’s non-compliance with the requirements of the Schedule. I find that this line of reasoning is inconsistent with the nature of the Schedule, as consumer protection legislation. This line of reasoning fails to follow this so-called “remedy” to its possible ultimate outcome.

63Under section 55(1)(2) of the Schedule, there are consequences to a claimant that fails to attend a section 44 examination requested by an insurer. They are barred from appealing to this Tribunal. Therefore, if a claimant disputes the sufficiency of a notice under section 44 and refuses to attend the assessment, there is a possibility they can later be barred from appealing the insurer’s decision denying the benefit.

64To suggest that claimants are obligated to take the risk of non-attendance, to safeguard their argument of an insufficient notice, runs contrary to consumer protection. The goal of the Schedule is to reduce economic dislocation and hardship of motor vehicle accident victims.

65A determination that motor vehicle accident victims should be required to refuse to attend section 44 examinations and face the possibility of being statute-barred from appealing an insurer’s decision, so that they can ensure an insurer complies with the obligations outlined in the Schedule is not a line of reasoning I can agree with or follow.

66Another possible outcome of this so-called “remedy” is that the claimant attends an improperly scheduled section 44 assessment to safeguard their future appeal rights, despite their position about non-compliance, and is likely faced with the additional burden of having to dispute adverse expert report(s) that an insurer should never have obtained in the first place based on their notice. In my view, this result can lead directly to inequity, economic dislocation, and hardship. The very issues the legislation is intended to prevent.

67While the Schedule is silent on the consequences of non-compliance with section 44 notices for insurers, it is not silent about the consequences for claimants for non-attendance.

68In Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 SCG 27, the Supreme Court of Canada confirmed that a statutory interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment.

69The parties did not direct me to Rizzo, because the respondent did not dispute the interpretation of Taksali. However, this case is a well-known reference for statutory interpretation and is binding upon me. Based on these principles in Rizzo, I am not willing to ignore the reasoning in Taksali because an applicant could refuse to attend a section 44 assessment. This is an inequitable “remedy” for an applicant and is incompatible with the intent of the legislation and with other provisions, such as section 38.

70Given the nature of the consumer protection legislation at issue, I am not able to accept the position that an insurer is able to reconcile deficient notices for section 44 examinations and section 38 denials, by using the conclusions from said examinations that were improperly requested. That outcome is illogical and inequitable. It is a ridiculous consequence for non-compliance.

71For these reasons above, I agree with the reasoning in Taksali, and with the applicant’s request that I prohibit the respondent from relying upon improperly procured section 44 reports.

72While the respondent did cite Afriat v Aviva Insurance Canada, 2020 CanLII 94793 (ONLAT) to suggest the Tribunal has accepted a denial after a section 44 assessment to cure a deficient section 38 notice, the case is not on point. In that case, there was no dispute about the section 44 notice also being deficient, as in this case, and in Taksali.

73And while it was not raised by the respondent in this case, I further find that the fact that the applicant attended the section 44 examinations, despite the improper notices from the respondent, does not make the issue of the deficient notices moot.

74To suggest that a claimant who can demonstrate an insufficient notice under section 44(5) Schedule, cannot rely on that non-compliance at a hearing because they attended the assessment, when the consequences for not attending may be so dire, is also contrary to consumer protection.

75Accordingly, the fact that the applicant attended the section 44 examinations, despite the respondent’s insufficient notices, does not prevent him from arguing that the notices were insufficient and that the results of the examinations may not be relied upon. It does not render the issue moot. Otherwise, the purpose of requiring sufficient notice as outlined in section 44(5) has no meaning.

76On February 15, 2022, the respondent issued notices under section 44(5) in relation to issues two and three in this appeal. The notices gave the same exact reasons as were in the section 38(8) denial letters. I have already found that the notices under section 38(8) were insufficient and did not comply with the Schedule and I adopt those same reasons here.

77In relation to issues four and five in this appeal, the notice under section 44(5) was dated November 24, 2023. The notice said it had reviewed the clinical notes and records and there was no indication that there was a psychological impairment that warranted a DSM diagnosis. Therefore, an examination was required to determine if the plans were reasonable and necessary.

78I do not find that this notice was sufficient and complied with the Schedule. It did not reference what the applicant’s medical condition was or what specific documentation was relied upon by the respondent. It did not indicate the relevant portions of the documentation the respondent was relying upon. The Appellant was entitled to know which records were relied upon, what they said about his condition, and why they were insufficient.

79In the specific context of this case, I find this is important because there was medical evidence in the respondent’s possession that was relevant to the plans at issue. The respondent conceded in its submissions that the clinical notes and records did mention the appellant experienced anxiety while driving. And the applicant’s submissions argue that the respondent was in receipt of a provisional diagnosis of an adjustment disorder from Dr. Tolmatshov, which was attached to the disputed plan.

80Given these facts, and the fact that the respondent has submitted that it did not have a voluminous medical file, I find that the failure to reference the applicant’s medical condition, the specific records it was relying upon, and relevant information in them resulted in non-compliance with section 44(5) of the Schedule.

81With respect to issues six, seven, and eight in this appeal, the notice under section 44(5) was dated November 30, 2023. The reasons for the examination were that the respondent had reviewed clinical notes and records and saw no indication that the applicant was not in the MIG. It also said the applicant was beyond the normal healing times for a minor injury.

82As I noted above, a reliance on general guidance for typical healing times is not a sufficient medical reason to request an examination or deny a benefit for this specific applicant. The notice under section 44(5) did not identify what the applicant’s medical condition was, what specific records the respondent was relying upon, and what portions of them were relevant to its decision. The notice did not comply with the requirements of section 44(5).

83Overall, I find that I am unable to determine what any of the Appellant’s diagnoses were by reading any or all the respondent’s notices. I am unable to determine exactly what records the respondent had in its possession or relied upon at the time it served its notices under section 38 and section 44. There is not one reference to any information contained within his medical file that formed the basis for the respondent’s ‘medical and other reasons’ for the examinations in the notices.

84I find that the respondent’s notices under section 44(5) related to the issues in dispute in this appeal were insufficient and did not comply with the requirements outlined in the Schedule, which must be strictly interpreted. As a result, the respondent cannot rely on the findings in the assessments, or the letters it sent to the applicant outlining the findings of these assessments to rectify the deficient notices it delivered under section 38(8) of the Schedule.

The consequences of insufficient notices under s. 38(8)

85The consequences for non-compliance with section 38(8) of the Schedule are found at section 38(11).

86Where an insurer fails to give a notice in accordance with section 38(8), the insurer is prohibited from taking the position that the applicant has an impairment which falls within the MIG. The insurer also shall pay for all goods, services, assessments and examinations described in the plan. The ‘shall pay’ provision begins on the 11th business day after the insurer received the plan and ends on the date the insurer complies with section 38(8).

87I found above that the respondent’s notices under section 38(8) were non-compliant with the requirements in the Schedule. This means they are subject to the consequences outlined in section 38(11). The respondent’s subsequent letters referencing the findings of improperly procured section 44 assessments did not rectify the non-compliance issue.

88While I have found that the applicant is subject to the MIG, this finding is not applicable to the plans in dispute in this appeal, where I have found the respondent did not comply with section 38(8).

89The respondent shall pay for all goods, services, assessments, and examinations described in the disputed plans in this appeal.

90The respondent submitted that the applicant has not shown proof of incurred expenses for the plans, and therefore it does not have to pay for plans that were not incurred.

91I agree there is no evidence before me that the cost of the disputed plans has been incurred. However, once the plans have been incurred by the applicant, they will become payable by the respondent.

92While the parties did not raise Aviva Insurance Company of Canada v Danay Suarez, 2021 ONSC 6200 in this proceeding, it is a decision of the Divisional Court and is binding upon me.

93In Suarez, the Court specifically concluded that an insurer cannot issue a compliant section 38(8) denial following a hearing in this Tribunal, because that would render the section meaningless.

94This means that the respondent in this proceeding cannot remedy its notices under section 38(8) now to avoid the consequences imposed by section 38(11). Therefore, the disputed plans are payable, once they have been incurred and properly invoiced.

Interest

95Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. The applicant is entitled to interest on any overdue payments.

Award

96The applicant sought an award under section 10 of Reg. 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 applicant is not entitled to an award.

97The applicant submits that the respondent’s insufficient notices, and reliance on improperly procured assessments justifies an award in this proceeding.

98The respondent submits that an applicant must demonstrate that an insurer was stubborn, imprudent, unyielding, inflexible and engaged in egregious conduct to warrant an award. I agree that this is the criteria routinely applied within the Tribunal.

99The respondent also submits that the applicant failed to deliver the particulars of his claim for an award in accordance with the Case Conference Report and Order of Adjudicator Henein Thorn dated June 20, 2024. It says that the applicant did not once indicate that he would be arguing that the respondent’s notices under section 38 or section 44 were deficient until delivering his submissions in this proceeding.

100I agree that breaching an Order of this Tribunal is a relevant factor for me to consider. I also agree that failing to provide particulars of the award in advance of the proceeding also mitigates against providing the applicant with the requested relief.

101The applicant did not dispute the respondent’s submissions regarding non-compliance with the Order of Adjudicator Henein Thorn in his reply submissions.

102The applicant was provided with the respondent’s internal adjusting notes and has not directed me to any egregious, unyielding, stubborn or inflexible conduct on the part of the respondent.

103I have found that the respondent’s notices did not meet the criteria set out in the Schedule, and relevant case law. This type of error does not equate to egregious conduct, and the applicant has not shown that the respondent was acting unreasonably. The threshold to meet for an award is high, and the applicant has not met his burden in establishing entitlement.

ORDER

104For the reasons provided, I order as follows: