Jakeli v. Pembridge Insurance Company, 2025 CanLII 3765

Citation: Jakeli v. Pembridge Insurance Company, 2025 ONLAT 23-003073/AABS

Licence Appeal Tribunal File Number: 23-003073/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:

Genadi Jakeli

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Alexei Antonov, Counsel

For the Respondent: Loretta De Thomasis, Counsel

HEARD: By way of written submissions

OVERVIEW

1Genadi Jakeli (the “applicant”) was involved in an automobile accident on July 5, 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 Pembridge Insurance Company (the “respondent”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The issues in dispute are:

1. Is the applicant entitled to a NEB of $185.00 per week from August 5, 2021 to July 5, 2023?
2. 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?
3. Is the applicant entitled to $2,565.20 for chiropractic services, proposed by Downsview Healthcare in a treatment plan/OCF-18 dated July 26, 2021, denied July 28, 2021?
4. Is the applicant entitled to interest on any overdue payment of benefits?
5. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3I find that:

1. The applicant is not entitled to NEB.
2. The applicant’s accident-related injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
3. He is not entitled to the OCF-18.
4. The applicant is not entitled to interest.
5. The respondent is not liable to pay an award.
6. The application is dismissed.

PRELIMINARY ISSUE

The respondent is raising a new preliminary issue of whether the applicant was non-compliant with s. 36 of the Schedule because he did not submit a Disability Certificate

4On October 27, 2023, the parties attended the Case Conference and on consent determined the issues in dispute, which included: a preliminary issue of whether the applicant was statute-barred from proceeding with his NEB claim because he failed to dispute the denial within the two-year limitation period, and the substantive issues, as identified above. On November 6, 2023, the Case Conference Report and Order (“CCRO”) was released and reflected that only these issues were in dispute for this hearing. The respondent has not referred me to evidence to establish that it took steps after the issuance of the CCRO to amend the preliminary issue to reflect that it was arguing that the applicant was non-compliant with s. 36 of the Schedule.

5Pursuant to s. 36(2) an applicant must submit a completed Disability Certificate (“OCF-3”) with their application. Further, s. 36(3) provides that failure to provide a completed OCF-3 disentitles an applicant to IRBs for any period before the OCF-3 was submitted.

6The applicant in his initial hearing submissions provided extensive arguments on why he was not statute-barred from proceeding with his NEB claim.

7The respondent in its submissions argued that the preliminary issue as outlined in the CCRO was misstated and that instead the preliminary issue was over the applicant’s failure to submit a OCF-3. In its submissions, the respondent provided no submissions on why it did not take steps to correct the CCRO prior to the hearing, such as a motion. Nor did the respondent refer me to evidence to establish that it advised the applicant prior to the hearing that it intended to raise this preliminary issue instead.

8In his reply submissions, the applicant argues that the respondent incorrectly argues that the preliminary issue was misstated in the CCRO, but has produced no evidence to support this. He further argues that the respondent did not take any steps prior to this hearing to raise this issue.

9Based on the CCRO, I find that the respondent is attempting to raise a new preliminary issue because it is not listed in the CCRO. Further, I find that it would be highly prejudicial to the applicant if the respondent was allowed to raise this new preliminary issue in its responding submissions, as the applicant was deprived of the opportunity to fully consider and prepare for this issue in advance of the hearing. Notably, the applicant in his initial submissions dedicated a significant portion of his submissions to address the preliminary issue as identified in the CCRO. The respondent has not directed me to evidence that shows that it advised the applicant that it would be raising this preliminary issue instead prior to the hearing, nor did it attempt to bring a motion to add this issue in advance of the hearing.

10Considering the purpose of the Schedule is to provide accident benefits to individuals while balancing the parties’ rights to a fair adjudication of their dispute, I have therefore decided to disallow the new issue raised by the respondent. I find that it would be procedurally unfair to require the applicant to defend against an issue that was not listed in the Order.

ANALYSIS

The applicant has not established entitlement to NEB

11I find that the applicant has not met his burden to prove his entitlement to NEB.

12Section 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.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 at para. 50, which focuses on a comparison of the applicant’s pre-and post-accident activities.

13Despite NEB being a live issue in dispute as indicated in the CCRO, the applicant provided no submissions on his pre-accident activities of daily living, or more crucially, demonstrated how his engagement in these activities has changed as a result of the accident. Moreover, in his submissions, the applicant did not identify the activities he values or provide evidence of the frequency and time commitments of his pre-accident activities as required by Heath. In the absence of this information, it is difficult to compare his pre- and post-accident capabilities with respect to the activities he ordinarily engaged in or valued.

14Instead, the applicant argued that he should be entitled to NEB and that he has difficulties with activities of daily living, self-care tasks, housekeeping/home maintenance activities, social, leisure and recreational activities. Significantly, the applicant did not refer me to evidence to support these submissions. It is well-settled that submissions are not evidence.

15In short, where the applicant has not addressed the guiding principles for NEB as outlined in Heath, and has not referred me to evidence to support his entitlement, it follows that he has fallen well short of establishing entitlement to NEB.

The applicant remains within the MIG

16I find that the applicant has not demonstrated on a balance of probabilities that he suffers from a injury or condition that warrants removal from the MIG.

17Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

18An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

19In all cases, the burden of proof lies with the applicant. Here, the applicant argues that he sustained chronic pain with a functional impairment and a psychological impairment.

20I find that the applicant has fallen far short of meeting his onus. Problematically, while the applicant asserts in his submissions that he has chronic pain with a functional impairment and a psychological impairment, he has tendered minimal evidence to support this claim. Indeed, the applicant’s submissions focused heavily on caselaw from the Tribunal but lacked supporting evidence.

21Notably, the only evidence that the applicant relies upon is a copy of an outstanding account from Downsview Healthcare, an application to this Tribunal, and an OCF-18, dated July 28, 2021. I find that the outstanding account from Downsview Healthcare and the application do not establish that the applicant has chronic pain with a functional impairment or a psychological impairment. This is because neither documents are medical evidence, but rather one provides the outstanding amount the applicant owes, and the other is an application to this Tribunal. With respect to the OCF-18, there is no diagnosis of chronic pain, and I place no weight on the psychological diagnoses because Dr. Oleksandr Pivtoran, is a chiropractor and diagnosing psychological conditions is outside of his scope of practice. Moreover, the applicant did not tender any corroborating medical evidence such as clinical notes and records from any treating practitioners. Consequently, I find that the applicant has not met his burden of proof.

22In its submissions the respondent confirmed that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been approved. As I have found that the applicant has not met his evidentiary onus to establish that his accident-related impairments warrant treatment beyond the MIG limits, it is not necessary for me to consider the reasonableness and necessity of the disputed treatment plans.

23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable under s. 51.

The respondent is not liable to pay an award

24The applicant seeks an award and interest under s. 10 of Reg. 664. Under s. 10, the Tribunal may award up to 50% of the total benefits payable plus interest if it determines that the insurer unreasonably withheld or delayed the payment of benefits. For conduct to attract a s. 10 award, the conduct must rise above being simply an incorrect decision and be excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

25As the applicant has been found to not be entitled to the benefits in dispute, it follows that no benefits were unreasonably withheld or delayed. Consequently, the applicant is not entitled to an award.

ORDER

26For the reasons outlined above, I find that:

1. The applicant is not entitled to NEB.
2. The applicant’s accident-related injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
3. He is not entitled to the OCF-18.
4. The applicant is not entitled to interest.
5. The respondent is not liable to pay an award.
6. The application is dismissed.