Alshoubaki v. Allstate Insurance Company of Canada, 2025 CanLII 39288

Citation: Alshoubaki v. Allstate Insurance Company of Canada, 2025 ONLAT 24-006760/AABS

Licence Appeal Tribunal File Number: 24-006760/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:

Mashoor Alshoubaki

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATORS:

Jeremy A. Roberts

Dagmara Szczudlo

APPEARANCES:

For the Applicant:

Mashoor Alshoubaki, Applicant (Self-represented)

For the Respondent:

Jessica Telfer, Counsel

Court Reporter:

Elio Legault

Heard by Videoconference:

March 10, 2025

OVERVIEW

1Mashoor Alshoubaki, the applicant, was involved in an automobile accident on September 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, Allstate Insurance Company of Canada, 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 an income replacement benefit (“IRB”) in the amount of $400.00 per week from September 29, 2021 to date and ongoing?

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

3At the hearing, the applicant withdrew the issue of an award.

RESULT

4The applicant is not entitled to IRB.

5Given there are no benefits owed or payments outstanding, the applicant is not entitled to interest pursuant to section 51 of the Schedule.

PROCEDURAL ISSUE

Request to dismiss the application was denied

6At the outset of the hearing, we declined the respondent’s motion to dismiss the application as abandoned.

7The respondent filed a written motion on March 3, 2025 seeking to dismiss the application and vacate hearing dates scheduled for March 10 and 11, 2025. The respondent submitted that the applicant failed to serve and file a witness list and document brief for the hearing in violation of the document exchange deadlines listed in the CCRO. Furthermore, the applicant did not provide any updated information regarding his efforts to obtain new legal representation, or confirmation that he will instead seek to represent himself at the upcoming hearing. The respondent submitted that not providing a witness list and document brief placed the respondent at a disadvantage in preparing for the hearing and it would be prejudicial to the respondent to have this hearing proceed as scheduled.

8While the applicant acknowledged that he had not filed the requisite documents, he argued that the matter should proceed given that he was present at the hearing.

9We find that it was clear from the fact the applicant attended the hearing that he has not abandoned his application and therefore we denied the motion to dismiss the matter without a hearing. Further, we note that as per Rule 3.5 of the Licence Appeal Tribunal Rules, the Tribunal must provide notice to dismiss an application without a hearing.

ANALYSIS

Background

10The applicant was involved in an automobile accident on September 22, 2021. He was driving on a highway in Toronto, Ontario when his vehicle lost control on wet pavement. The applicant needed to be extracted from the vehicle by the Fire Department and was transported to Mississauga Hospital by ambulance due to a suspected seizure.

The applicant is not entitled to pre-104 IRB

11We find that the applicant has not demonstrated that he meets the test for pre-104 IRB from September 29, 2021 to September 20, 2023.

12To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed or self-employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment (“the pre-104 test”). The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

13The applicant argued that he was entitled to pre-104 IRBs because he was unable to return to his job due to impairments sustained from the accident. He testified that at the time of the accident, he was working as a server/customer service staff at Pasha Shisha Lounge and as a delivery assistant at Organic Foods. His responsibilities at Pasha Shisha Lounge included waiting on tables, taking orders from customers, and acting as a cashier. At Organic Foods, the applicant assisted the driver with loading and unloading deliveries and was not responsible for driving. The applicant testified that he was working 40 hours per week at Pasha Shisha Lounge and part-time at Organic Foods at the time of the accident. He attempted to return to his employment at Pasha Shisha Lounge on one occasion in December 2021 but was prevented from doing so by pain in his knee, back, shoulder, and neck after the accident.

14We find, based on the applicant’s testimony, that the essential tasks of his pre-accident employment were walking and customer service duties at Pasha Shisha Lounge and manual work involving lifting packages of unspecified weight at Organic Foods.

15The injuries described in a disability certificate dated September 27, 2021 (“OCF-3”), completed by Dr. Chad Hefford, chiropractor at Prime Health Care Inc, establish that the applicant suffered sprain and strain injuries in the accident. Namely, sprain and strain of the spine (cervical, thoracic, and lumbar), post traumatic headache, and strain of the shoulder, elbow, and left knee. The OCF-3 also lists anxiety and sleep disturbances as a result of the accident.

16The respondent submits that the applicant did not meet either test for IRB and calculation of quantum for this benefit was difficult due to conflicting information regarding income reported by the applicant’s employers and listed on his Revenue Canada income tax returns. The respondent also argued that the applicant failed to present medical evidence which supported his entitlement to IRBs.

17We find that the applicant did not meet the burden of proof to demonstrate how the impairments caused by the accident resulted in a substantial inability to perform the essential tasks of his pre-accident employment. While the applicant did testify to his difficulties in completing tasks of his employment, there was a lack of medical evidence to substantiate his claim that ongoing medical issues arising from the accident prevented his return to work. In the absence of medical evidence, we find that the applicant did not meet his burden to show the entitlement to pre-104 IRB.

18We find on a balance of probabilities that that the applicant is not entitled to pre-104 IRB.

The applicant is not entitled to a post-104 IRB

19We find that the applicant is not entitled to a post-104 income replacement benefit in the amount of $400.00 per week from September 21, 2023 to February 28, 2024.

20To receive payment for post-104 IRB under s. 6 of the Schedule, the applicant must demonstrate, on a balance of probabilities, that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

21The analysis for the post-104-week period requires the Tribunal to first determine what employment or self-employment the insured person is “reasonably suited” to perform. This assessment involves an appraisal of one’s work history, education, and training.

22The applicant argued that he was entitled to these benefits because he was completely unable to return to his work after the accident until March 2024. He testified that he has not completed post-secondary education or vocational training, however, gained experience as a mechanic’s assistant while assisting his uncles who were mechanics in Jordan, which led to his current self-employment since March 2024. However, in the interim period, he argued that his impairments from the accident (namely shoulder, back, knee, and neck pain) prevented his return to his previous employment or any other employment.

23The respondent argued that the applicant failed to meet his onus in proving to the Tribunal that he met the stricter test for post-104-week IRBs. The respondent argued that the applicant had failed to present compelling medical evidence to substantiate the claims regarding his accident-related impairments.

24We find that the applicant is not entitled to post-104-week IRBs because he did not provide compelling, contemporaneous medical evidence to support his claim that he suffered from accident-related impairments that precluded his return to any employment for which he was reasonably trained or suited. As such, we find that the applicant has not met his burden to show that he had a complete inability to engage in any employment between September 21, 2023 to February 28, 2024.

25We find on a balance of probabilities that the applicant is not entitled to post-104 IRB.

The applicant is not entitled to interest

26Given there are no benefits owed, the applicant is not entitled to interest pursuant to section 51 of the Schedule.

ORDER

27For the reasons above, we find that:

i. The applicant is not entitled to IRB;

ii. The applicant is not entitled to interest pursuant to section 51 of the Schedule; and

iii. The application is dismissed.