Citation: Adam v. TD General Insurance Company, 2025 ONLAT 24-007078/AABS

Licence Appeal Tribunal File Number: 24-007078/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:

Magdi Adam

Applicant

and

TD General Insurance Company

Respondent

DECISION

VICE-CHAIR:

Robert Maich

APPEARANCES:

For the Applicant:

Nidhi Vinayak, Counsel

For the Respondent:

Andrea Bandow, Counsel

HEARD:

In Writing

OVERVIEW

1Magdi Adam, the applicant, was involved in an automobile accident on November 5, 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, TD 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. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from December 5, 2022 to date and ongoing?

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?

RESULT

3I find the applicant is not entitled to a non-earner benefit (“NEB”) of $185.00 per week from December 5, 2022 to date and ongoing.

4I find the respondent is not liable to pay an award under s. 10 of Reg. 664.

5I find the applicant is not entitled to interest on any overdue payment of benefits.

PROCEDURAL ISSUES

6The respondent submitted that the applicant should be precluded from relying on Tabs 12, 14 and 18 of the applicant’s written submissions because he failed to comply with the final disclosure deadline of November 25, 2024 as required by the Tribunal case conference report and order of September 27, 2024. Further, the respondent submitted Tabs 12 (Revised FAE report dated February 7, 2025), 14 (Chronic pain report dated March 7, 2025) and 18 (Letter from Magna International inc) were received with the applicant’s written submissions on May 21, 2025, 178 days late. The respondent submitted that the late disclosure has prejudiced the respondent in depriving it of procedural fairness and the opportunity to fully investigate and prepare for the new evidence found at Tabs 12. 14 and 18 of the applicant’s written submissions.

7The applicant did not raise the issue of late filing of evidence in its written submissions and did not file a reply with the Tribunal.

8I find the respondent’s submissions to be persuasive. This Tribunal must guard carefully against procedural issues that would result in “trial by ambush”. The Licence Appeal Tribunal Rules, 2023 (Rules) provide at Rule 9.3 that the failure to comply with a disclosure of documents order will result in the exclusion of the evidence without the permission of the Tribunal. In determining whether to admit the evidence the Tribunal may consider, reasons for non-compliance, prejudice to a party, whether the substance of the information is within the knowledge of a party, whether a party objects and its relevance. I find no reason has been offered for the non-compliance, the respondent has objected to admission of the evidence and has clearly stated it would be procedurally unfair and prejudiced without an opportunity to test the evidence as it is highly relevant to the issues before the Tribunal. I note the applicant had the evidence in its possession for some time as the evidence at Tab 12 was dated February 7, 2025, the evidence at Tab 14 was dated March 7, 2025, and the evidence at Tab 18 was dated October 7, 2024. I find despite the relevance of this evidence, it would be procedurally unfair to give it full weight without the respondent having the opportunity to test and answer that evidence. I assign little weight to the evidence at Tabs 12, 14 and 18 in the applicant’s written submissions.

9I find for the above stated reasons that little weight can be placed on the evidence found on Tabs 12, 14 and 18 of the applicant’s written submissions.

ANALYSIS

Background

10On November 5th, 2022, at approximately 02:25 a.m., the applicant was travelling northbound on Oxford County Road #13, approaching its intersection at Quaker Street, in the Town of Norwich, in the Province of Ontario when suddenly and without warning another vehicle collided with the applicant’s car, causing a collision, the applicant sustained injuries and property damage loss arising from the motor vehicle accident in relation to his vehicle.

11The applicant was driving home to Kitchener from an educational training day in London with 3 passengers in his vehicle. After turning northbound on Oxford County Road #13, he noticed a vehicle driving towards him in his lane. He attempted to avoid a collision by driving onto the right shoulder of the road, but the oncoming vehicle did not change course. Then applicant then attempted to move into the southbound lane to avoid collision, but the oncoming vehicle moved into the same lane. The applicant then proceeded to brake and stop his vehicle. The oncoming vehicle then collided with the front left side of the applicant’s vehicle.

12Upon impact the applicant’s vehicle deployed airbags, and the applicant struck his head but did not lose consciousness. EMS was contacted; ambulance and police arrived at the scene within 10 minutes. The applicant was transported by ambulance with C-spine precautions to Tillsonburg Hospital. The applicant’s vehicle was towed off the scene and deemed a total write off by the insurer.

Is the applicant entitled to a non-earner benefit?

13I find the applicant is not entitled to a NEB of $185.00 per week.

14Pursuant to section 12 of the Schedule, the applicant must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident in order to qualify for NEB. The test for NEB involves a consideration of the applicant’s activities and life circumstances pre-accident and compares it to their activities and life circumstances post-accident. Sustaining serious injuries or minor life changes does not automatically entitle the applicant to NEB. Rather, according to the test in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, (“Heath”), the applicant must demonstrate that life circumstances have changed and that the change must be significant enough to continuously prevent the applicant from substantially engaging in all the activities that he engaged in before the accident.

15I find the applicant did not lead any evidence contrasting pre-accident and post accident activities, nor make submissions on how the applicant suffered a complete inability to carry on a normal life as a result of and within 104 weeks of the accident.

16The applicant relies upon the report of Dr. Steiner, Psychologist, dated November 22, 2023 providing a DSM-V diagnosis of Adjustment Disorder with Mixed Anxiety & Depressed Mood (309.28/F43.23) and from Adjustment Disorder with Mixed Anxiety & Depressed Mood (309.28/F43.23). Dr. Steiner recommended that the applicant be offered 16 sessions of psychotherapy over a period of six to eight months followed by Cognitive Behavioural Therapy (CBT), and be assessed for a vehicular reintegration as it may be effective in assisting him to regain pre-MVA level of confidence when travelling in an automobile. Dr. Steiner further recommended a chronic pain assessment to avoid entrenchment of a chronic pain disorder.

17I note Dr. Steiner’s recommendations are focused on recovery, but I also note he did not make a finding that the applicant suffered a complete inability to carry on a normal life in regard to the NEB test. I find Dr. Steiner’s evidence well reasoned and give it weight. I note the applicant demonstrated that he suffered injuries and limitations to activities such as playing football and socializing with friends and family. He further demonstrated he limited driving at night and on weekends for fear of being hit by a drunk driver, but I do not find these limitations to be evidence of a complete inability to carry on a normal life because he is able to able to complete most tasks of daily living without assistance.

18The respondent submits that the applicant completed his educational program at the Automotive Training Centre in Cambridge, where he was attending at the time of the accident; further, he subsequently began a high school equivalency program. The respondent submits the applicant’s completion of the Automotive Training Centre program in December, 2022 and subsequent enrollment in a high school equivalency program in January, 2023, are indicative that the applicant was able to continue pre-accident activities. I find that the applicant’s ability to complete his educational program to be good evidence indicating an ability to continue a normal life after the accident.

19The respondent submitted the insurer’s assessor, Dr. Hasan, psychiatrist, in his assessment dated February 9, 2023 acknowledged muscular injuries of the applicant, but concluded he did not suffer a complete inability to carry on a normal life as a result of the accident. Dr. Hasan’s diagnosis according to DSM-5-TR is as follows: F43.23 Adjustment Disorder with Mixed Anxiety and Depressed Mood, as a result of the accident, but found this diagnosis not to be debilitating. I find Dr. Hasan’s evidence to be balanced with a well reasoned conclusion and give his evidence weight.

20The respondent further submitted the insurer’s assessor, Dr. Ballard, physical medicine and rehabilitation specialist, in his assessment dated February 16, 2023 concluded the applicant did not suffer from a complete inability to carry on a normal life. Dr. Ballard found the applicant was independent of all aspects of his personal care tasks, returned to pre-accident shared responsibilities of housekeeping tasks of cooking and cleaning, returned to driving and works as an assembly line worker. I find Dr. Ballard’s evidence to be well reasoned and supported by detailed evidence and give his evidence weight.

21I find the respondent’s submissions to be persuasive as evidenced by the assessments of Dr. Hasan, Dr. Ballard and the applicant’s ability to complete his educational program after the accident.

22I find the applicant did not discharge his onus for NEB as the applicant did not demonstrate he suffered a complete inability to carry on a normal life as a result of the accident for the above stated reasons. Therefore, he is not entitled to NEB.

Interest

23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the applicant is not entitled to the benefits in dispute, I find no interest applies in this matter.

Award

24Award applies to any overdue benefits pursuant to s. 10 of the Schedule. As the applicant is not entitled to the benefits in dispute, I find no award applies in this matter.

ORDER

25The Tribunal orders as follows:

i. The applicant is not entitled to a non-earner benefit.

ii. The applicant is not entitled to interest.

iii. The applicant is not entitled to an Award.