Mai v. Co-operators General Insurance Company, 2025 CanLII 132420

Mai v. Co-operators General Insurance Company, 2025 ONLAT 24-001089/AABS

Licence Appeal Tribunal File Number: 24-001089/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:

Lianda Mai (Applicant)

and

Co-operators General Insurance Company (Respondent)

DECISION

ADJUDICATOR: Amar Mohammed

APPEARANCES:

For the Applicant: Ryan Olson, Paralegal Sareena Samra, Counsel

For the Respondent: Simran Walia, Counsel

HEARD: By Way Of Written Submissions

OVERVIEW

1Lianda Mai, the applicant, was involved in an automobile accident on December 18, 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, Co-operators General Insurance Company, 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. Are the applicant’s injuries predominantly minor as defined in s. 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 $4,217.20 for chiropractic services, proposed by UHeal Rehab Centre in a treatment plan/OCF-18 (“plan”) submitted April 13, 2023, and denied May 4, 2023?

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

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

3The applicant withdrew issues three and four as listed in the Case Conference Report and Order in his initial submissions for this hearing. Those issues are not listed above as they are no longer in dispute on this application.

RESULT

4The applicant’s injuries are not predominantly minor as defined in s. 3 of the Schedule and therefore not subject to treatment within the $3,500.00 MIG limit.

5The applicant is entitled to $4,217.20 for chiropractic services, once incurred, under ss. 38(11)2 and 38(15).

6The respondent is not liable to pay an award under s. 10 of Reg. 664.

7The applicant is entitled to interest on any overdue payment of benefits.

ANALYSIS

Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit?

8The applicant did not make submissions addressing the test for removal from the MIG. The respondent states that the applicant has already been removed from the MIG. However, since it is the applicant pursuing this disputed issue and he has not withdrawn this issue I must address it. The respondent requests that I dismiss the issue. In my view, it is more appropriate to recognize that the respondent has removed the applicant from the MIG. For these reasons, I find that the applicant is not subject to the MIG limit.

Is the applicant entitled to $4,217.20 for chiropractic services, proposed by UHeal Rehab Centre in a plan submitted April 13, 2023, and denied May 4, 2023?

9I find that the respondent’s notice did not comply with s. 38(8) of the Schedule, triggering the prohibition of s. 38(11)1 and the shall pay provision of s.38(11)2. Accordingly, the applicant is entitled to the proposed plan, once incurred.

10The applicant seeks entitlement based on his position that it is reasonable and necessary and is subject to payment pursuant to the shall pay provision of s. 38(11) of the Schedule. Section 38(11) does not include “reasonable and necessary” in its language and therefore no such analysis is warranted. Kyrylenko v. Aviva Insurance Canada, 2021 ONSC 4929, at para 13.

11Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has a impairment to which the MIG applies.

12The applicant argues that the notice was not provided within 10 business days of receipt of a plan, and that it does not provide sufficient reasons. Accordingly, the applicant alleges that the respondent’s notice does not comply with the Schedule and the shall pay provision is triggered.

13The respondent argues that the shall pay provision of s. 38(11)2 only applies between the period starting on the 11th business day after the day the insurer received the application and ending on May 4, 2023, when it provided a compliant notice. In that case, since we are dealing with a period outside of the shall pay period, the respondent argues that I must consider whether the proposed plan is reasonable and necessary.

Untimely s. 38(8) notice

14The applicant argues that the Schedule should be liberally interpreted in favour of the applicant. On this basis, the opportunity under s. 38(11)2 to cap the shall pay period by providing a notice that otherwise complies with s.38(8) could not apply to a late notice, because it would not have been provided within 10 business days as required by subsection (8).

15I refer to the binding Divisional Court decision: Aviva General Insurance Company v. Catic, 2022 ONSC 6000 (Catic), interpreting ss. 38(8), 38(11) and 38(15). Catic’s facts provide that the insured in that case submitted a treatment plan to the insurer on November 15, 2016, and the insurer denied the plan on June 5, 2017, several months past the 10 business-day deadline. Under the circumstances, the shall pay period was defined as commencing on the 11th business day after submission of the plan or on November 30, 2016 and ending on June 5, 2017. Based on this interpretation, a late notice provided by an insurer cures the insurer’s failure to provide a timely notice within 10 business days as required by subsection 8.

16However, in the case before me, I find that the May 4, 2023 notice is not proper for reasons other than not being timely.

Insufficient reasons in s.38(8) notice

17The respondent’s reasons should engage the specific details about the applicant’s condition forming the basis for the respondent’s decision and be adequate enough to allow an unsophisticated person to understand them and make an informed decision to either accept or dispute the denial.

18The May 4, 2023 denial notice provides the following reasons, of which I find all three are unsupported conclusions without insight into the applicant’s condition or what the applicant’s claim is relating to his condition:

i. Based upon a review of the documentation received in your accident benefits file to date and the minor injury guideline, we have concluded that we do not have sufficient evidence to support that your accident-related impairments fall outside of the Minor Injury Guideline.

ii. Furthermore, we are unable to approve any of the recommended goods and services because your injuries fall within the Statutory Accident Benefits Schedule (SABS) definition of a minor injury which limits your Medical and Rehabilitation Benefits entitlement to a maximum of $3,500 and your limit has been reached.

iii. We currently have a lack of compelling medical evidence to support the need tor further physical treatment as a direct result of your injuries sustained in the motor vehicle accident.

19The respondent’s reasons are noncompliant with s. 38(8) because they do not offer a principled rationale based fairly on the applicant’s file and do not engage with the specific details of the applicant’s condition. In my view, a fair assessment of the file at the time of drafting the May 4, 2023 denial notice would have engaged with specific details about the insured’s condition that formed the basis of the respondent’s decision.

20In my view, when reading the reasons, including the respondent’s references to the MIG, I did not find any details as to what the applicant’s injury, impairment, or condition is which the respondent believes is covered by the definition of a minor injury and does not require further physical treatment. Under the circumstances, the respondent’s reasons are not sufficient to comply with s.38(8) and this also triggers the shall pay provision of s. 38(11)2. I note that I was not offered any subsequent notice to the May 4, 2023 notice relating to this proposed plan and the shall pay period is there not capped in advance of this hearing.

21I also note that the applicant did not refer me to evidence of the proposed plan being incurred. I have considered that consumer protection does not mean consumer windfall. I find it appropriate that the proposed plan is approved, permitting the applicant to incur the goods and services proposed, if not already incurred and the insurer shall pay in accordance with s. 38(15) of the Schedule.

22For the reasons above, on a balance of probabilities, I find that the respondent’s notice did not comply with s. 38(8) of the Schedule, triggering the shall pay provision of s.38(11)2. Accordingly, the applicant is entitled to the proposed plan, once incurred, in accordance with s. 38(15).

Interest

23Interest applies on the payment of overdue benefits pursuant to s. 51 of the Schedule.

Award

24The 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. The applicant provided the following factors as the basis for his request for an award:

i. The insurer categorically ignores the medical records of the applicant’s treating practitioners and assessors;

ii. The applicant is vulnerable and has sustained serious injuries as a result of this accident;

iii. The Tribunal needs to set precedents to ensure deterrence to Insurers; and

iv. The Insurer acted in a highhanded manner.

25The respondent argues the applicant’s award particulars are a recitation of medical evidence and caselaw without evidence that an award is warranted. Upon review of the applicant’s submissions, I find that this is an accurate description and add that the applicant did not specify the amount of award sought which can range vastly, up to 50 per cent as described above.

26I find, in relation to the claim for an award, that the applicant did not refer me to evidence or provide particulars of unreasonable withholding or delay that would form the basis of the award claim. Further, the applicant did not specify the amount of award he was seeking. Under these circumstances, I am not prepared to make the applicant’s case for him. Doing so would deny the respondent procedural fairness for not having an opportunity to respond to any specific particulars of the claim for an award, including whether any withholding or delay meets the threshold of being unreasonable.

27For the reasons above, the respondent is not liable to pay an award.

ORDER

28For the reasons above, I make the following orders:

i. As the respondent removed the applicant from the MIG, the applicant is not subject to treatment within the $3,500.00 MIG limit.

ii. The treatment plan for $4,217.20 for chiropractic services is payable, once incurred, under ss. 38(11)2 and 38(15) of the Schedule.

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

iv. The applicant is entitled to interest on any overdue payment of benefits.