Licence Appeal Tribunal File Number: 24-011537/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:
Oksana (Sandra) Goertzen
Applicant
and
Northbridge General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Mary Henein Thorn
APPEARANCES:
For the Applicant:
Kennedy Nolan, Counsel
For the Respondent:
Stacey Morrow, Counsel
HEARD: by Videoconference:
August 5,6 & 7, 2025
OVERVIEW
1Oksana Goertzen, the applicant, was involved in an automobile accident on June 11, 2023, 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, Northbridge General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2At the start of the hearing the applicant withdrew the issue of the income replacement benefits (“IRB”) in the amount of $400.00 per week from January 11, 2024, to date and ongoing as well as any related interest which may be owed on the IRB.
3During the hearing the applicant advised the Tribunal she was also seeking any applicable interest on the award, therefore the remaining issues are a s.10 award and interest on the award.
ISSUES
4The issue in dispute is:
i. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
ii. Is the applicant entitled to interest on the s.10 award.
RESULT
5I find that the respondent is liable to pay a s. 10 award, plus interest.
PROCEDURAL ISSUES
6The applicant filed a motion requesting the hearing be varied from a videoconference hearing to a written hearing. The Tribunal advised the applicant on Friday August 1, 2025, that it has declined to hear the motion prior to the hearing as the request was made improperly, the request was submitted on the incorrect form. Therefore, the Tribunal advised the applicant the motion would be heard at the hearing.
7The applicant made the request orally at the hearing to have the videoconference hearing converted to a written hearing as the parties resolved all of the issues in dispute prior to the hearing with the exception of a s.10 award. She submits that a written hearing would be more efficient than a videoconference hearing. She also submits that should the conversion be granted; she would be agreeable to a 4-week adjournment to allow the respondent to prepare written submissions.
8The respondent disagreed with moving forward with the hearing at all. It submits that the issue(s) the applicant is disputing are not clear and it cannot proceed with the hearing as a result. Mainly, it has not received the particulars of the award, even though the log notes have been provided to the applicant in February of 2025 pursuant to the Case Conference Report and Order (“CCRO”). The CCRO specified that within 30 calendar days after receipt of the log notes, the applicant would provide particulars of the award claim.
9The respondent submits that it received the applicant’s submissions late on the Friday prior to the scheduled hearing on Monday and amended submissions the morning of the hearing with what appears to be the particulars of the award. It did not have the opportunity to review the submissions or prepare for today’s hearing. It submits it is not procedurally fair to continue with the hearing given the fact that the applicant did not comply with the production rules contained in the Case Conference Report and Order (“CCRO”) or follow the Licence Appeal Tribunal Rules. The respondent submits that the applicant’s evidence should not be allowed into evidence and the hearing should not proceed.
10The applicant argued that the particulars of the award appears in the application, Case Conference Summary, and again in an email dated March 21, 2025, which she presented to the Tribunal at the hearing. Therefore, she is compliant with the CCRO.
11The submissions the applicant provided to the Tribunal on August 1, 2025, is not evidence, she provided the specifics of the particulars of the special award. She argues that before providing her submissions regarding the special award, she was waiting for the Tribunal to rule on the motion. As soon as she received notice on August 1, 2025, the motion would be heard at the scheduled event, she immediately provided her submissions to the Tribunal and the respondent.
12The hearing will proceed as a videoconference hearing as scheduled. Upon hearing the submissions of both parties, I find pursuant to Rule 3.1 of the Licence Appeal Tribunal Rules, the most efficient way to proceed is to continue with the videoconference hearing. I am satisfied that the applicant has outlined to the respondent on multiple occasions the particulars of the award which is found in the application, Case Conference Summary and in an email dated March 21, 2025. I find that the issue in dispute is clear, and I am not persuaded by the respondent’s submission that it has been disadvantaged or it is procedurally unfair to proceed. The respondent has had ample notice of the particulars of the award and will have the opportunity to provide its response to those particulars in this hearing.
13Both parties agreed if the motion was not going to be granted, they are ready to proceed today.
ANALYSIS
Award
14I find the applicant is entitled to a s.10 award.
15Under s. 10 of Reg. 644 the Tribunal may award up to 50 percent of the total benefits claimed, plus interest, if it determines the insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined an award is justified where the delay or withholding of benefits by the insurer is unreasonable, meaning its behaviour, is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. The onus is on the applicant to prove, on a balance of probabilities, the respondent’s conduct meets this criterion.
16The applicant is seeking a s.10 award because she submits the income replacement benefit was deemed approved but not paid from January 12, 2024, until it was denied by the respondent on August 23, 2024. It is her position the respondent unreasonably withheld and delayed the IRB payment for approximately two years even though it was deemed payable by the respondent in a letter dated August 3, 2023. The IRB was not paid by the respondent until July 8, 2025. The applicant submits that as a result of the respondent’s negligent handling of the file, she unnecessarily endured financial hardship.
17The applicant submitted a Disability Certificate (OCF- 3) completed by the applicant’s family doctor, Dr. Upender Mehan dated July 28, 2023, to the respondent on July 31, 2023. The OCF-3 indicates the applicant cannot perform the essential tasks of her employment. The applicant submits that the respondent responded to the OCF-3 in a letter dated Aug 8, 2023, indicating the applicant is entitled to the benefit, it did not request any further information (s.33 request), nor did it pay the IRB in accordance with Section 36(4) of the Schedule. The respondent’s initial denial of the benefit was on August 23, 2024.
18The applicant further submits the respondent had everything it needed to determine quantum. The applicant provided several documents proving the applicant was entitled to $400/week for IRB. In the application for accident benefits dated July 28, 2023, it showed the gross income the applicant was earning per year was approximately $100,000. An employer’s OCF-2 was submitted 5 days after the OCF-3 was submitted on August 4, 2023, confirming the applicant’s gross income of $1,967.54/week for the previous 4 week which means $102,312.08/year. The weekly IRB payable amount for that income level would be calculated at $400/week.
19Further, the applicant submits the Schedule is consumer protection legislation. As such, the respondent should have paid out the benefit while it did its investigation, and upon completion of the investigation if there is an overpayment, the Schedule has a built-in provision for the respondent to recover its money.
20The respondent retained an accountant who submitted a report dated August 27, 2024, also concluded the applicant was entitled to $400.00 per week from January 12, 2024, to August 23, 2024. The applicant submits that even after receiving the accountant’s report, the respondent still unnecessarily withheld payment of the IRB.
21The applicant agrees the respondent was entitled to request further information to adjust the file, but it did not make that request. Instead, it deemed the applicant entitled to the benefit from January 12, 2024, to August 23, 2024, but did not pay it July 9, 2025. The applicant made several inquiries about the payment, but the respondent ignored all of the applicant’s inquiries.
22The applicant entered into evidence numerous emails which started as an inquiry about the status of the IRB payment and escalated to notification the applicant is seeking a s.10 award. The emails were dated June 18, 2024, June 24, 2024, July 10, 2024, July 16, 2024, July 19, 2024, July 22, 2024, Aug 2, 2024, August 6, 2024, August 26, 2024, and August 29, 2024. Most emails were either unanswered or vague answers with no response as to when the IRB would be paid.
23The respondent submits the threshold for a s. 10 award is high and the onus is on the applicant to lead evidence, it cannot just be the applicant disagrees with how the respondent has adjusted the file.
24The respondent argues that it adjusted the file accordingly. It submits there was ambiguity regarding the applicant’s eligibility for Long Term Disability Benefits from her employer which would have affected the quantum for IRB and there was also a question of whether or not she was still employed. The respondent pointed the Tribunal to several log entries where it requested documentation from the applicant to adjust the file and the adjuster had noted several plans of action to keep the file moving. It also submits it paid the applicant the IRB with interest on July 9, 2025.
25An award should only be payable in situations where the respondent acted excessively, imprudently, in a stubborn manner, inflexible, unyielding or immoderately. It submits it has not behaved in that manner and has acted in good faith.
26I find the applicant met her burden that that she is entitled to a s.10 award.
27Pursuant to section 36(4) of the Schedule, within 10 business days after the respondent receives the application and completed disability certificate, the insurer shall,
a) pay the specified benefit;
b) give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or
c) send a request to the applicant under subsection 33 (1) or (2). O. Reg. 34/10, s. 36 (4).
28Pursuant to .s10 of Regulation 664 made under the Insurance Act, “If the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, may award a lump sum of up to 50% of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2% per month, compounded monthly, from the time the benefits first became payable under the Schedule.”.
29I find the evidence supports the applicant’s claim the respondent deemed her eligible for an IRB benefit from January 11, 2024, to August 23, 2024, when the benefit was initially denied and should have been paid pursuant to s. 36(4) of the Schedule. The respondent did not pay, deny or request any further documents under s. 33 nor did it respond to the applicant’s requests for further information. As such, I agree with the applicant that the respondent acted imprudently
30Further, I find the respondent received an accounting report from an accountant it commissioned to review the applicant’s records. The report dated August 27, 2024, supported the applicant’s entitlement to the benefit for the period of eligibility, but the respondent still chose not to pay the benefit at that time and paid it close to one year later. In my view this is evidence of a delay that was unreasonable to the point of being excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
31The applicant pointed me to emails regarding the status of the payment of the benefit dated June 18, 2024, June 24, 2024, July 10, 2024, July 16, 2024, July 19, 2024, July 22, 2024, Aug 2, 2024, August 6, 2024, August 26, 2024, and August 29, 2024, which were not responded to by the respondent. Further pointing me to conduct in my view that is imprudent, stubborn, unyielding or immoderate.
32The applicant sought an award under section 10 of Regulation 664. [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]
33The award should be proportionate to:
a) the level of blame to be placed on the insurer’s conduct;
b) the vulnerability of the insured;
c) the potential or actual harm to the insured;
d) the necessity of deterring future such conduct from the insurer;
e) the advantage gained through the insurer’s misconduct; and
f) a consideration of any other action that has been or will be taken against the insurer due to its conduct.
34Through subsequent case law, an additional consideration has been the overall length of the delay. These are the factors that the Tribunal has considered assistive when determining a s. 10 award.
35I find the respondent did not take appropriate steps in its ongoing duty to adjust the applicant’s claim, which led to the IRB being unreasonably withheld, therefore the applicant is entitled to a special award in the amount of 50% of the total benefit claimed from January 11, 2024, until the date it was denied on August 23, 2024, plus interest. According to the follow up email the applicant exchanged with the respondent, it is clear to me that the application was facing financial hardship and was in a vulnerable position waiting for her IRB to be paid as it was not denied. I am persuaded in this situation the maximum allowable amount is proportional to the harm the applicant has endured because of the respondent’s inaction. The applicant submitted she endured emotional and economical hardship while waiting for the benefits to be paid. The applicant was pro-active and reached out numerous times to the respondent but was ignored for close to a two-year period. I also find a s.10 award should be applied as a deterrent and a reminder to the to the respondent that the Schedule is consumer protection legislation,
36I find the applicant is entitled to a s.10 award.
ORDER
37I find that the applicant is entitled to a s.10 award of 50% of the IRBs claimed from January 11, 2024, until August 23, 2024, plus interest.
Released: December 5, 2025
__________________________
Mary Henein Thorn
Adjudicator