Semenya v. Belair Insurance Company Inc., 2025 CanLII 129096

Licence Appeal Tribunal

Citation: Semenya v. Belair Insurance Company Inc., 2025 CanLII 129096 Licence Appeal Tribunal File Number: 24-014358/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:

Christina Semenya

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR: Mary Henein Thorn

APPEARANCES:

For the Applicant: Roger R Foisy, Counsel Daniel Berman, Counsel Rusaid Laloshi, Paralegal Celia DaSilva, Paralegal

For the Respondent: Itse Ezomo, Counsel

Heard by Videoconference: September 22, 23, 24 & 25, 2025

OVERVIEW

1Christina Semenya, the applicant, was involved in an automobile accident on July 30, 2022, 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, Belair Insurance Company Inc., 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 a non-earner benefit (NEB) of $185.00 per week from August 27, 2022, to July 27, 2024?

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 entitled to costs in the amount of $1,000.00?

RESULT

3The applicant is entitled to a non-earner benefit of X per week from Y to Z;

4The respondent is not liable to pay an award under s. 10 of Reg. 664;

5The applicant is entitled to interest; and

6The applicant is not entitled to costs.

PROCEDURAL ISSUES

Catastrophic reports entered into evidence

7The respondent filed a motion on September 10, 2025, which was heard at the start of the hearing to exclude two of the applicant’s s. 25 catastrophic (“CAT”) reports from being entered into evidence at the hearing. One report is an Occupational Therapy Assessment Report dated January 30, 2025, by Occupational Therapist, Judith Kazdan, and the second is a Psychiatry Assessment Report dated March 4, 2025, prepared by Dr. Shrenik Parekh, Psychiatrist.

8The respondent argues the applicant is introducing a new issue (catastrophic impairment) which was not addressed at the case conference and is not a disputed issue at this hearing. It submits the CAT assessments were conducted approximately six months after the eligible time frame for the NEB. Therefore, the contents of the report are irrelevant to the issues in dispute.

9It further submits the applicant has already provided relevant medical information pertaining to the issue of NEB, making these reports unnecessary and repetitious. The respondent submits a report prepared by a s. 25 assessor and Occupational Therapist who assessed the applicant for attendant care benefits should be sufficient enough as it takes into consideration the applicant’s functional ability and her ability to manage her activities of daily living (“ADL”).

10It submits that the admission of the reports would be prejudicial to the respondent since it did not have the opportunity to review or respond to the CAT reports by way of section 44 rebuttals.

11The applicant argues that excluding these reports would be highly prejudicial as the burden is hers to meet. The CAT reports are the only reports she is relying on in support of her eligibility for NEB, while the respondent is relying on multiple s.44 assessors reports and addendums.

12She also disagrees with the respondent’s position that it did not have time to request a rebuttal opinion from its assessors. The applicant points to the fact that the respondent received copies of the CAT reports on March 11, 2025, and if it chose to conduct CAT rebuttal reports, it could have as it had more than enough time to do so.

13The applicant also disagrees with the respondent’s position that the attendant care assessment can be used to defend her entitlement for NEB, making the CAT reports duplicative. She submits while an Occupational Therapist assessed the applicant, it was for the purpose of attendant care services and for treatment purposes only, not to provide an opinion about her ability to carry on a normal life. Therefore, the disputed evidence is not duplicative.

14Further, the applicant submits that the CAT assessors under criterion 8 need to assess the applicant’s pre-accident medical and functional history from before the accident to the date they complete their report to determine a physical and psychological baseline. That timeline encompasses the same period of time the applicant is seeking the NEB therefore, it is relevant.

15I am denying the respondent’s request. Upon review of the parties’ submissions, I am not persuaded by the respondent’s submissions that the reports are repetitious or irrelevant.

16I do not agree that the respondent would be prejudiced by the inclusion of the CAT reports because it was not able to request rebuttal reports. The respondent did not refute it received copies of the CAT reports on March 11, 2025, therefore, in my view, if it wished to conduct rebuttal reports, it could have done so in that time frame.

17I am also not persuaded by the respondent’s argument that since the applicant has an occupational therapy report in her possession, it should be used in this hearing for the current issues in dispute. The onus remains with the applicant determine which evidence to lead to meet her burden, and in this case she wishes to rely on the CAT reports.

18Although the reports were completed after the 104-week period for the NEB, I am persuaded by the applicant’s submission that the s. 25 assessors for criterion 8 need to assess the applicant’s condition physically and psychologically from before the accident, up until the time they finalize their reports. The expert reports would include relevant analysis and opinion regarding the applicant’s condition before and after the accident, which is relevant to the issues in dispute.

19For those reasons, I am denying the respondent’s request and allowing the CAT reports into evidence.

ANALYSIS

Applicant’s request for Costs is denied

20The applicant is not entitled to costs, as she has not proven that the respondent has acted unreasonably, frivolously, vexatiously, or in bad faith when it filed its motion to the Tribunal.

21The applicant filed a Notice of Motion on September 11, 2025, which was heard at the hearing. The applicant takes the position that the respondent filed a late motion 14 days prior to the hearing to exclude the applicant’s expert witnesses’, Dr. Shrenik Parekh and Judith Kazda’s testimony and reports. She submits it is in contravention to Rule 9.4 and 10.4, the motion should have been filed 21 days before the hearing. As a result, the applicant submits she needed to decide whether or not to have her witnesses on standby while the motion was heard and decided upon. While waiting for the motion to be heard by the Tribunal the applicant kept her witnesses on standby. Because of the uncertainty of the outcome of the motion she released her witnesses later than their ten-day policy and, in all likelihood, will owe cancellation fees which will cost more than the maximum allowable amount under Rule 19. She submits the respondent’s unreasonable, behaviour caused prejudice to the applicant and an unnecessary expense therefore the remedy she seeks is the maximum allowable amount payable under Rule 19.

22The respondent disagrees with the applicant and argues that a notice regarding the motion was sent to the applicant on September 5, 2025, seventeen days prior to the hearing, well in advance of the scheduled hearing to cancel the applicant’s witnesses.

23It further submits these expert opinions were not gathered for the purpose of NEB, rather for CAT and therefore these witnesses are irrelevant to today’s hearing and the request for costs should not be considered.

24In considering this request, I look to Rule 19.5 of the LAT Rules, which encourages adjudicators to consider the seriousness of the alleged misconduct, whether the conduct was in breach of a direction or order issued by the Tribunal, whether the party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, and the prejudice to other parties. When considering these factors, I find that the applicant’s case does not meet the high threshold required to merit costs. I find that although the respondent filed its motion four day’s short of Rule 19’s requirement, it was more than the required ten-day cancellation policy required by the witnesses according to the applicant. Although the applicant claims the respondent may be liable for costs, she did not lead evidence beyond her submission that persuades me that costs were or are going to be incurred.

25Moreover, the decision to keep or release the witnesses was in the hands of the applicant while she was waiting for the motion to be heard. It is within the purview of the Tribunal to decide when a motion is to be heard. In this situation the Tribunal ordered the motion to be heard at the start of the hearing. The respondent did not have insight or control of when the motion would be heard, therefore it cannot assume responsibility.

26Based on the reasons above, I find that none of the alleged behaviour rises to the level of unreasonable, frivolous, vexatious, or in bad faith and costs are not merited.

The applicant is entitled to a non-earner benefit

27I find the applicant is not entitled to a non-earner benefit.

28Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104-weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

29The test for an NEB is set out in the Court of Appeal decision of Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”), which generally focuses on a comparison of the applicant’s pre- and post-accident activities.

a. A comparison between the applicant’s activities and life circumstances before and after the accident.

b. Assessing the applicant’s activities and life circumstances requires more than a snapshot in time but involves assessing it over a reasonable period prior to the accident and the duration after is case specific.

c. In proving “substantially all” requires looking at all the applicant’s pre-accident activities and life circumstances but greater emphasis can be placed on the ones that matter the most to the applicant.

d. “Continuously prevents” means that it’s of a nature, extent or degree that is and remains uninterrupted.

e. “Engaging in” refers to a qualitative perspective – going through the motions may not be “engaging in,” and if doing the activity is sufficiently restricted then it’s not “engaging in”.

f. If pain is a primary factor that prevents the applicant from engaging in their pre-accident activities, the question is not whether the applicant can physically do the acts, but are they practically prevented from engaging in those activities?

30The applicant was rear ended in this accident and according to the Milton General Hospital records dated August 1, 2022, the applicant suffered the following injuries: pain in the base of her head, upper neck, mid back and she experiences muscle spasms. She also reported pain when trying to look up right and left. Further, she testified that she also experienced numbness to her face and legs. The hospital records also indicate that the airbags deployed on impact as a result the applicant noted her head went back and forth quickly.

31She testified that now has difficulty ambulating and uses mobile aids. She continues to have issues with her cognition, anxiety, headaches, dizziness, has safety issues and is considered a fall risk.

32Although she concedes she had pre-existing injuries, she testified her pain was manageable, and she was able to lead a full and independent life. She argues because of the impairments she suffered as a result of the accident, she can no longer carry on a normal life.

33In support of her position, the applicant relies on the testimony of her daughter Bessi Semenya, and the opinions of Carolyn Rocca, Cheryl Christenson, and Judith Kazdan, Occupational Therapists; Angell-Skye Brake and Christine Porter, Rehabilitation Support Workers; Maggie Bowman and Allison Tedesco, Social Workers; Jelena Rados, Rehabilitation Support Worker; Dr. Shrenik Parekh, Psychiatrist; Giancarlo D'Uva, Physiotherapist; and Dr. Amina Lodhi, Rheumatologist.

34The applicant acknowledges that she had an accident in 2016, prior to the accident that is the subject of this application. Her injuries at that time consisted of injuries to her neck, back and shoulder and she had ongoing pain. She also had two falls, one in 2013 and the other in 2018, which resulted in tears in both of her shoulders requiring 4 surgeries on her right shoulder and 3 on her left. She also reported to Dr. Parekh she had a history of asthma, neutropenia, arthritis, diabetes, hyperthyroidism degenerative disc disease, post concussion syndrome, depression and dyslipidemia. She was under the supervision of a Rheumatologist for arthritis in her joints prior to the accident for ongoing pain and inflammation in her, ankle, knees, hip, hands and wrist(s).

35The applicant testified that post surgeries to her shoulders, she received some assistance from her daughter with home care but that dissipated shortly after, she only needed assistance when carrying heavy things and reaching high up. The applicant testified, and it is confirmed in her medical records from PCC Pain Care, that the applicant was receiving nerve block injection after her surgeries and her last injection was on March 16, 2021. She also testified she suffered from the sleep apnea for which she used a Continuous Positive Airway Pressure (“CPAP”) machine, which was aiding in a better sleep at night (5-6 hours), but she still took periodic naps during the day.

36Both the applicant and her daughter, who lives with the applicant, testified that pre-accident the applicant would clean and manage most of the housekeeping, cooking, gardening, outdoor maintenance and she would spend a great deal of time sewing intricate garments for her family and friends.

37Both the applicant and her daughter testified that today she needs assistance with showering, she no longer maintains the hair style or brushes her teeth with the same frequency as she once did, she uses mobility aids and poses safety risks. She struggles to bake, sew, and she can no longer garden (which is an activity she absolutely loved). They also testified that the applicant was a community leader. She would host dinners in her home and was heavily involved with her church (Ghana Dialect) St. Andrew Catholic Church and St Theresa of the Child Jesus. She also belonged to 2 different communities’ Togolese community and Ghanaian community and Counsel of Every Association of North America (“CEANA”). To attend church, she would drive herself 30-35 minutes each way every Sunday. After church the community would meet, socialize, assist with various functions such as funerals, engagement parties, weddings, picnics and fundraisers and annual conferences. They testified these activities gave the applicant a sense of connection to the community and much enjoyment, now the applicant rarely attends any social functions and avoids hosting dinners at her house due to embarrassment. Now the daughter has to do the large majority of those duties due to her mother’s ongoing fatigue, lack of motivation, anxiety and physical inability.

38The applicant and her daughter testified that another significant change is the ability to travel together. The mother daughter duo were accustomed to impromptu trips away to a variety of different places especially since the daughter work for an airline company and gets affordable tickets frequently. A favourite destination was Ghana where the applicant would purchase fabric native to her country and sew garments for community members and her family. Prior to the accident they were planning their dream vacation to Reykjavik Iceland to see the Northern Lights. That trip has now been cancelled.

39The applicant reported the same to her assessors as found in the clinical note of Ms. Bowman, the applicant reported after her travel to Ghana for her daughter’s wedding post accident, she found it was stressful and exhausting, she concluded after that trip that she likely will not travel anymore. She also reported to Carolyn Rocca, Occupational Therapist while conducting an in-home function assessment on January 16, 2023, the applicant was scheduled to travel independently to Houston in September of 2022, but she had to cancel the trip and lost her money due to her injuries. The applicant also reported that on January 17, 2023, she visited Ghana to visit an ill family member. The applicant advised Ms. Rocca that due to her impairments, she needed her daughter who works for an airline, to book a business class ticket so the applicant could travel more comfortably, and her daughter had to accompany her as she could not travel alone. Further, the applicant also reported to Ms. Rocca that the trip was rescheduled several times because the applicant was concerned that her dizziness, noise sensitivity and headaches would be intensified by the plane rides.

40In a report dated June 27, 2022, 33 days prior to the accident Dr. Lodhi talks about the applicant’s arthritis. She notes the applicant has chronic pain in the neck, shoulders, thoracic spine and lumbar spine and was diagnosed with degenerative disc disease and complaints of pain in her ankles, knees and swelling and pain in her hands and was previously attending the pain clinic but she is no longer attending. She also notes significant reduction in the range of motion in her cervical, thoracic and lumber spine. In another note dated November 25, 2022, to Dr. Joe Pham, Gastroenterologist she indicates the applicant is diagnosed with seronegative inflammatory arthritis and was taking medication. The applicant does not refute these findings; however, she testified that even with the arthritis diagnosis, she was still independent and could manage her activities of daily living.

41Dr. Parekh authored a report dated March 4, 2025, to make his findings, he conducted an in-person assessment which took 75 minutes in total, interviewed the applicant, conducted a collateral interview with the applicant’s daughter, reviewed her medical history and conducted a series of questionnaires and a psychometric testing to make his findings. He opined even with the applicant’s pre-existing impairments the accident intensified the applicant’s injuries to reach a class 4 marked impairment in all spheres under criterion 8.

42Giancarlo D'Uva agrees with the applicant. In support of her position, he completed a Disability Certificate (OCF-3) dated September 13, 2022, which indicates the applicant’s pre-existing injuries were exacerbated by the accident and there is evidence of post concussive syndrome. I give little weight to his opinion on a concussion diagnosis as it is not within his professional prevue to make that determination.

43Allison Tedesco has been working with the applicant and testified she reviewed a Social Work Assessment Report dated July 10, 2023, by Maggie Bowman post the 104-week mark, and had her first visit with the applicant on July 31, 2024. It is her opinion based on Maggie Bowman’s observations and her own conversations with the applicant she has significant physical and psychological limitations which interferes with her ability to carry on a normal life. She testified that the applicant had difficulty cooking, hosting, interacting with her community, exhibits conative impairments, safety issues and isn’t able to drive. She is for the most part unable to function in the way she reported she was able to pre-accident.

44Angell- Skye Brake who also took on the file from Christine Porter on May 29, 2024, post the 104-week mark, she also agrees with the findings of Maggie Bowman and Allison Tedesco. She opined based on her review of the clinical notes and records of Ms. Porter and her own observation that the applicant was a safety risk, has ongoing pain and fatigue and is unable to carry on a normal life.

45On January 16, 2023, Ms. Rocca submitted a Form 1 on behalf of the applicant for attendant care services and conducted an In-Home Functional Assessment dated February 3, 2023. It is her observation and opinion that the applicant posed a safety risk. She was leaving the stove on unattended and burning food, since then a modification has been made to the stove to automatically turn off should it not be in use. She experienced the applicant showing signs of forgetfulness, mobility issues, and opined the applicant is in need of assistive devices. The applicant reported she was not driving due to pain, neck restriction and anxiety, Ms. Rocca agrees it is consistent with the applicant’s reporting of her condition.

46The respondent submits that the applicant has not sustained an impairment which prevents her from engaging in substantially all of the activities in which she ordinarily engaged in before the accident. It raises the issue of causation, and submits the accident was relatively minor in nature and although it agrees there may have been some aggravation of the applicant’s pre-existing conditions, the aggravation was temporary. Further, it argues the applicant has repeatedly submitted she sustained a head injury (“concussion”) but has not provided medical evidence to support such a diagnosis.

47It asks the Tribunal to consider her extensive pre-existing physical and psychological impairments, and submits her declining health was already affecting her qualify of life.

48It relies on the reports of Andrew Phillips, Occupational Therapist, Dr. Sabrina Ming-Wai Tu and Dr. Allan Chan, Psychologist.

49In support of its position, it points to the fact that the applicant was collecting Canada Pension Plan Disability (“CPPD”) prior to the accident from approximately 2016 and continues to collect it. The requirement to meet the test for CPPD benefits in accordance with section 44.2 of the Canada Pension Plan she has to have severe and prolonged mental and severe disability preventing her from gainful employment which is independent to qualify.

50Andrew Phillips, Occupational therapist assessed the applicant and found physically the applicant was able to move and function relatively well without the use of mobility aids and she had some restricted range of motion in her upper extremities. He found the applicant was able to demonstrate appropriate attention and concentration and was able to follow directions, organise her thoughts and process information, he opined there were no cognitive issues. He concluded the applicant does not suffer an inability to carry on a normal life.

51The respondent points to the applicant’s prior sleeping habits which have not changed. It directs me to a report dated June 16, 2022, just before the accident authored by Dr. Laurence Chau, Respirologist. He assessed the applicant’s sleep impairment and noted the applicant suffered insufficient sleep due to frequent wakening partially due to chronic pain which results in daytime tiredness.

52Section 44 assessor Dr. Sabrina Tu, General Practitioner opined in a report dated October 17, 2022, that the applicant has no objective musculoskeletal impairments as a direct result of the subject accident which affect the applicant’s ability to regularly perform her activities of daily living. In her opinion it is an acute exacerbation of the soft tissue injuries the applicant sustained from the accident which tends to resolve within 8-12 weeks post accident.

53Section 44 assessor Dr. Alan Chan, Psychologist assessed the applicant and opined in his report dated October 31, 2022, that the accident has exacerbated the applicant’s psychological issues, and she has now developed a Major Depressive Disorder (Mild) with Anxious Distress (Mild). He bases his opinion on an extensive review of the applicant’s pre-accident medical history and his in-person assessment.

54He noted the applicant suffers ongoing grief and depression over the loss of her husband, which contributes to her lack of motivation. She also has unchanged sleep issues and an unchanged habit of taking naps during the day. It is his opinion that her sleep disturbances may very well contribute to her cognitive ability and other issues. He also opines that her impairments are temporary and are amenable to treatment. Part of the treatment he supports for example, is the applicant’s participation in an accident desensitization green light referral program proposed by Occupational Therapist Margorie Green of Green Light Driver Rehabilitation in order to overcome her driver/passenger anxiety. Overall, he determined that her psychological impairments do not impede her ability to resume her normal life activities that she performed pre-accident and therefore she does not mee the test for NEB.

55I find the applicant is entitled to NEB. I am persuaded that the applicant has met her burden on a balance of probabilities that she continuously is prevented from engaging in substantially all of the activities in which she ordinarily engaged before the accident.

56I am persuaded the applicant’s pre-existing impairments have been exacerbated by the accident and I also believe she suffered new impairments. Upon review of the applicant’s pre-existing conditions, regarding her chronic pain I note the applicant stopped taking nerve blockers, according to her testimony pre-accident and resumed post accident for pain management.

57I find the applicant and her daughter have consistently reported to her assessors a comprehensive account of her pre-accident ability and the activities she participated in pre-accident and the hinderances she faces post accident. For example, although the applicant travelled to Ghana post accident to attend her daughter’s wedding. I am persuaded that the level of travel she has enjoyed pre-accident has significantly changed. The applicant and her daughter testified and reported to the assessors because of the applicant’s daughter’s ability to acquire affordable tickets through her employment at an airline, they enjoyed planned and impromptu travel to both long and short distances frequently. It was a large part of their lives. They went frequently and it was a large part of the applicant’s life, now the daughter travels mostly alone without her mother. It is further evidenced by the fact that the accident occurred while they were travelling together in New York. I am also persuaded the applicant suffered a significant decline physically and psychologically, enough so that she and her daughter deemed it necessity to cancel a planned dream trip to Reykjavik Iceland.

58The applicant has also testified and reported to all assessors that sewing was a part of her identity. Enough so that when she went to her home country of Ghana she invested in fabric from there to bring back to Canada and sew intricate garments for her family and friends. Her reported inability to continue to sew I find is partially due to her pre-existing impairments, however, I find her complaints of headaches and dizziness a contributing factor to her inability to continue sewing to the level she once did.

59I accept the applicant’s testimony and find that it supports a finding that she was no longer able to participate in substantially all the activities that she ordinarily engaged before the accident. She testified that cooking, socializing, hosting and gardening were activities she enjoyed that she can no longer participate in due to pain, exhaustion, cognitive issues, headaches and dizziness. She also testified that her community was a large part of her support system, her inability to drive has created isolation for her. She has lost her leadership role within her community with her absence, and as a result, she feels depressed and unsupported. Her daily treatment providers have all confirmed she no longer participates in activities she is accustomed to.

60She has also reported to all assessors that she has increased depression. Both section 44 assessors Dr. Tu and Dr. Chan both acknowledged the accident exasperated the applicant’s pre-existing condition from a musculoskeletal and psychological perspective. Although they both believe it should be temporary, I am persuaded by the applicant’s testimony and that of the RSW, SW and the OT’s who have been working with the applicant on a weekly and monthly basis that her impairments have not subsided and she is still affected by her injuries.

61I took into consideration the respondent’s submission that the applicant was receiving CPPD and to be eligible there needs to be a significant disability. The test for CPPD is a different than that in the Schedule for NEBs. I also note the applicant did not deny she had pre-existing physical and psychological impairments, she and her experts testified that the accident intensified her previous impairments and brought it to a level where she can no longer carry on a normal life.

62In Ms. Rocca’s clinical note and record of February 3, 2023, she indicates the applicant is currently at risk of falling, and she needs an interdisciplinary rehabilitation team as she is unable manage independently. I heard testimony from other treating providers who indicated the same. In Mr. Phillip’s assessment report dated November 14, 2022, he also indicates the applicant complained of dizziness, and that when the applicant was observed in the kitchen meal prepping, she demonstrated limited motion in her upper extremities, cervical spine and with lumbar movement she performed slowly. I deduce from his report that the applicant is unable manage in the kitchen as she once did, and I also find the issues to her back and spine are issues that did not present prior to the accident.

63Based on the totality of the evidence and the reasons noted above, I find on a balance of probabilities that the applicant has met her burden and is entitled to NEB.

Interest

64As the applicant is entitled to the NEB, interest is payable on the overdue benefit pursuant to s. 51 of the Schedule.

Award

65The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Provide the basis for the award. Identify the response. Make a finding and provide reasons to support it. The applicant is not entitled to an award.

66Under s. 10 of Reg. 664, the Tribunal may award up to 50% of the total benefits payable if it determines that the 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.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.

67The applicant submits the respondent acted in bad faith when it was provided by the applicant’s medical documentation that supported her accident-related injuries and it chose to deny or partially approve treatment plans submitted by the applicant based on the opinions of the section 44 assessors.

68I find the applicant failed to meet her burden of proving entitlement to the benefits in dispute and therefore the respondent did not unreasonably withhold payment of the benefit to the applicant. I find that the applicant has not met her onus to demonstrate, on a balance of probabilities that, the respondent acted in an excessive, imprudent, stubborn, inflexible, unyielding, or immoderate way and therefore the applicant is not entitled to an award.

ORDER

i. The applicant is entitled to a non-earner benefit;

ii. The respondent is not liable to pay an award under s. 10 of Reg. 664;

iii. The applicant is entitled to interest; and

iv. The applicant is not entitled to costs.