Mandana Sarem-Namini v. Aviva General Insurance Company, 2025 ONLAT 22-008337/AABS

Licence Appeal Tribunal File Number: 22-008337/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:

Mandana Sarem-Namini

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Gareth Neilson

APPEARANCES:

For the Applicant: Michael Ferrante, Paralegal

For the Respondent: Brittanny Tinslay, Counsel

HEARD: By way of written submissions

OVERVIEW

1Mandana Sarem-Namini, the applicant, was involved in an automobile accident on May 22, 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant has removed issue number 2 as listed in the Case Conference Report and Order.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from June 21, 2021 to May 22, 2023?

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

4The applicant is not entitled to non-earner benefits of $185.00 per week from June 21, 2021 to May 22, 2023.

5The respondent is not liable to pay an award.

6The applicant is not entitled to interest on overdue payments.

ANALYSIS

Applicant’s argument that the respondent violated section 36 of the Schedule.

7The applicant seeks non-earner benefits (NEB) from the respondent. The applicant provides no medical evidence to prove that they are in fact entitled to receive NEBs. Rather, the applicant asserts that they did not receive a proper denial notice for NEBs and therefore are entitled to payment for NEBs from 4 weeks post accident until a proper notice is given, or in this case, 104 weeks, pursuant to s. 36(6). The applicant does not oppose the findings of the s. 44 assessment which was completed on April 5, 2022, but argues that the assessment was not completed for the purposes of entitlement to NEB.

8The respondent argues that it complied with section 36 of the Schedule and points to multiple denial letters that were sent to the applicant. The first denial letter sent to the applicant was sent one day after receipt of the Disability Certificate (“OCF-3”). On the same day, June 15th, 2021, the respondent also requested clinical notes and records, hospital records and an OHIP summary from the applicant. The respondent also provides evidence that on November 26, 2021, after receiving the necessary medical documents from the applicant, it issued a denial letter with a request for the applicant to attend a section 44 assessment. The respondent then sent additional denial letters to the applicant on January 14, 2022 and February 28, 2022. And lastly, on April 19, 2022, the respondent submits that the applicant was provided with copies of the section 44 assessment reports and was again advised that they did not meet the criteria for NEB.

The applicant is not entitled to a NEB

9I find that the respondent provided sufficient denials to the applicant and no section 36 contravention took place.

10I find the respondent advised the applicant in letters dated June 15, 2021, November 26, 2021, January 14, 2022 and February 28, 2022 that there was no medical documentation which supports a complete inability to carry on a normal life. Furthermore, I find the applicant was informed by the respondent that since a review of the medical information provided was not sufficient to assess entitlement to a NEB, the respondent was exercising its right to schedule section 44 assessments.

11The April 18, 2022 assessment report, which was given to the applicant on April 19, 2022, was very clear that the applicant did not qualify for the specified benefit and included a summary of the findings of the assessors explaining why the applicant did not qualify for a NEB.

12I find the respondent acted appropriately and in accordance with its right and obligations under the Schedule. I reject the applicant’s assertion that they did not receive proper denials under section 36 of the Schedule. Section 36(4)(b) and s. 36(5)(b) requires that the respondent 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.” I am satisfied the language that the respondent used in its denial letters meets the requirements of this section. I find the statement that there is no medical documentation that supports the applicant’s claim, and therefore more information pursuant to s. 33 as well as a s. 44 IE is required, constitutes a sufficient denial because it is a valid “other” reason and there is no requirement that an insurer fabricate a medical reason. Importantly, following the release of the s. 44 report, I find the respondent provided the report to the applicant and confirmed its medical reasons for denial under s. 36(7).

Interest

13Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest on overdue benefits.

Award

14The 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 respondent did not act in bad faith and therefore no award will be granted.

ORDER

15I order the following:

i. The applicant is not entitled to receive non-earner benefits as the respondent’s denial was compliant.

ii. No overdue interest is due.

iii. The applicant is not entitled to an award.

iv. This claim is dismissed.