Ahmed v. Wawanesa Insurance, 2025 CanLII 28463

Citation: Ahmed v. Wawanesa Insurance, 2025 ONLAT 23-006384/AABS

Licence Appeal Tribunal File Number: 23-006384/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:

Faiz Ahmed

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR: Samia Makhamra

APPEARANCES:

For the Applicant: Hermia Leung, Paralegal

For the Respondent: Eric Boate, Counsel

Heard by written submissions

OVERVIEW

1Fayez Ahmed, the applicant, was involved in an automobile accident on July 4, 2021, 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, Wawanesa Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The parties agree that the issues in dispute are:

i. Is the applicant entitled to a non-earner benefit (NEB) of $185.00 per week from July 4, 2021 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

3The applicant is not entitled to a non-earner benefit.

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

5The applicant is not entitled to interest as there are no benefits owing.

PROCEDURAL ISSUE

Respondent’s request to draw adverse inference

6The respondent has requested that a negative inference be drawn against the applicant on the grounds that he failed to produce several documents ordered by the Tribunal. In summary, the documents ordered are clinical notes and records from 1 year prior to the accident, including any hospital records and records from treating health professionals, particulars of treatment incurred, employment file, property damage documents, and any information regarding collateral benefits.

7The respondent submits that the applicant did not comply with the Tribunal order for the hearing, did not bring a motion to change the production timeline, and did not provide submissions as to why the documents were not provided. Furthermore, the respondent submits that non-compliance is prejudicial, depriving it of its ability to review relevant medical records.

8I have no submissions from the applicant on this issue.

9The Tribunal has the discretion to draw an adverse inference where, in the absence of a reasonable explanation, a party fails to produce evidence that is within its control or is equally available to the parties and such evidence is material to the dispute. With no explanation from the applicant or reasons as to why he did not comply with the Tribunal order, I am persuaded by the submissions of the respondent to draw an adverse inference against the applicant for failing to provide the documents as ordered.

ANALYSIS

The applicant is not entitled to an NEB

10On balance, I find that the applicant has not demonstrated that he is entitled to an NEB.

11Section 12(1) 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.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

12The applicant submits that due to his impairments from the accident he suffers from a complete inability to perform some personal care tasks, all housekeeping tasks, all leisure tasks, attend school and commute, all of which support his entitlement to an NEB. He relies on the clinical notes and records from his family doctor, Dr. Mohammed Elahi, and Dr. Salim Dahmis of Releva Chronic Pain Centre, who diagnosed him with chronic pain.

13The respondent disputes the applicant’s position and maintains that the applicant did not suffer a complete inability to carry on a normal life, as evidenced by the conclusions of the assessors who saw the applicant on multiple occasions.

14I am persuaded by the evidence from the insurer’s examinations which concluded that the applicant did not meet the disability test for an NEB. There were several such examinations. The applicant saw Jeff Perrier, occupational therapist, on September 30, 2021, Dr. Jacqueline Smith Auguste, orthopaedic surgeon, on October 5, 2021, and Dr. Tatiana Dumitrascu, psychologist, on October 12, 2021. All three assessors concluded the applicant did not suffer a complete inability to carry on a normal life after the accident. Based on the applicant’s self-reporting and his clinical presentation, Mr. Perrier concluded that the applicant did not exhibit a complete inability to carry on a normal life. Dr. Auguste stated that there was no clinical evidence to support any medical restrictions for the applicant and, from a musculoskeletal perspective, he did not meet the disability test for an NEB. Dr. Dumitrascu noted no clinically significant symptomatology and that the applicant’s clinical presentation did not indicate any accident-related symptoms or emotional distress. She also concluded the applicant did not meet the disability test for an NEB.

15On January 20, 2022, Dr. Auguste provided an updated opinion based on additional productions. She stated that the applicant had sustained a lumbar sprain/strain and a left knee sprain/strain but that his prognosis remained favorable. She concluded that he did not suffer a complete inability to carry on a normal life as a result of the accident.

16On January 27, 2022, Dr. Dumitrascu also provided an updated opinion based on the additional productions: she concluded that the additional documents did not change her previous opinion that the applicant did not meet the criteria for a psychological disorder, and did not meet the disability test for an NEB.

17On January 23, 2024, the applicant was assessed by Dr. Eric Silver, family physician. Dr. Silver noted that the applicant was independent with most self-care activities, that he was completing some household chores, and that he reported a 30-40% improvement in pain symptoms since the accident. Dr. Silver concluded that the applicant sustained sprain/strain injuries to his cervical spine, lumbar spine, and left knee and did not find compelling evidence of an accident-related musculoskeletal impairment. Dr. Silver concluded that the applicant’s accident-related impairments had resolved, and he did not suffer a complete inability to engage in substantially all of his normal pre-accident daily activities.

18On February 26, 2024, the applicant was assessed by Dr. Dumitrascu again. She concluded that the applicant did not suffer from a psychological impairment and her opinion that he did not meet the disability test for an NEB remained unchanged.

19The evidence and submissions support the respondent’s position. And I do not agree with the applicant’s submissions. While he was limited in completing households chores due to pain and he did not socialize with friends because he could not engage in sports activities, I find this limitation did not amount to a complete inability to engage in substantially all of the activities in which he ordinarily engaged before the accident. He remained able to complete most self-care tasks and completed his last semester of his studies. In other words, there is no compelling evidence that the accident significantly impacted the applicant’s day-to-day life as he continued to be independent with respect to self-care, household tasks, as well as his studies.

20I find on a balance of probabilities that the applicant did not demonstrate that he suffers a complete inability to carry on a normal life and therefore is not entitled to an NEB.

The insurer is not liable to pay an award

21The applicant is seeking 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.

22In examining whether an insurer’s conduct in withholding or denying a benefit warrants an award, the case law is well established that, the insurer’s behaviour must be seen as “excessive, imprudent, stubborn, inflexible, unyielding, or immoderate”.

23I do not find that an award is payable in this case. The insurer properly paid benefits within the MIG, and there are no other benefits owed to the applicant.

ORDER

24Based on the above, I order the following:

1. The applicant is not entitled to a nor-earner benefit.

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

3. The applicant is not entitled to interest as there are no benefits owing.