Sidhu v. Aviva Insurance Company, 2025 CanLII 514

Citation: Sidhu v. Aviva Insurance Company, 2025 ONLAT 23-000186/AABS

Licence Appeal Tribunal File Number: 23-000186/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:

Palwinder Sidhu

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Nadia Mauro

SUBMISSIONS BY:

For the Applicant: Shahzad Ayub, Counsel

For the Respondent: Natalie S. Maltz, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Palwinder Sidhu, the applicant, was involved in an automobile accident on November 16, 2017, 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, Aviva 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 $542.93 ($2,164.23 less $1,621.30 approved) for psychological services from MediAssess Evaluations Inc, proposed by Peter Waxer, psychologist in a treatment plan (“OCF-18”) dated January 6, 2021, denied by the respondent on January 8, 2021?

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

iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

iv. Is the respondent entitled to its costs in the amount of $500.00 because the applicant’s conduct or course of conduct has been unreasonable, frivolous or vexatious or the applicant has acted in bad faith?

RESULT

3The applicant is not entitled to the treatment plan for psychological services, interest, or an award.

4The respondent is not entitled to costs.

PROCEDURAL ISSUES

CCRO and Submissions

5Both parties participated in a case conference on August 11, 2023, and the case conference report and order (“CCRO”) provided for a written hearing. The written hearing was scheduled for April 26, 2024, with the following deadlines:

i. Applicant’s submissions were due March 27, 2024, and to be no more than 10 pages in length;

ii. Respondent’s submissions were due April 12, 2024 and to be no more than 10 pages in length; and

iii. Applicant’s reply submissions were due April 19, 2024, and to be no more than 5 pages in length.

6The applicant failed to file any submissions on March 27, 2024. The Tribunal sent email correspondence to the applicant on March 28, 2024, and April 3, 2024, notifying the applicant that the submission due date had passed.

7The respondent filed submissions, on April 4, 2024, requesting the application be dismissed as abandoned on the basis that the applicant failed to submit submissions for the written hearing.

8Subsequently, the applicant filed submissions on April 5, 2024, outlining the basis for his claims with regard to the substantive issues in dispute.

9The respondent filed a subsequent set of submissions, on April 11, 2024, asserting that the applicant failed to comply with the CCRO, and therefore the applicant’s submissions ought to be excluded for (1) late delivery, and (2) for exceeding the prescribed page limit. The respondent also made submissions with respect to its position on the substantive issues in dispute. The respondent relies on the Tribunal decision in Oseyende v Aviva Insurance Canada, 2024 CanLII 10562 (ON LAT) (“Oseyende”), in that the applicant’s case was dismissed because the applicant failed to comply with the CCRO, among other things. The respondent argues that accepting the applicant’s late and lengthy submissions condones conduct which violates procedural fairness and contravenes the Tribunal rules.

10On April 19, 2024, the Tribunal wrote to the applicant advising that it had not received his reply submissions. The applicant later filed reply submissions, on April 19, 2024, at 6:22 pm, in which he addressed the respondent’s assertion that he did not comply with the CCRO. The applicant’s reply submissions states that he requested, by email correspondence to the respondent on April 3, 2024, that the timeline for submissions be extended. The applicant argues that it would be unduly prejudicial to grant the relief sought by the respondent. In particular, striking the submissions would be inconsistent with Rule 3.1 of the Licence Appeal Tribunal Rules, 2023. The applicant further submits that the page limits comply with CCRO because the applicant’s main body of submissions are 6.75 pages in length, and the ‘optional’ tabs amount to 3.25 pages, thus fitting within the allotted 10-page limit. Moreover, the applicant argues that it is unclear how the respondent’s ability to provide responding submissions is constrained given that the respondent’s submissions are two-to-three pages less than the allotted limit.

11I find that the applicant’s submissions, as filed on April 5, 2024, are 21.75 pages in total. The applicant’s initial submissions are 7 pages in length, exclusive of the footnotes. The applicant tabbed an additional 14.75 pages to his initial submissions, named as “TAB R”, “Optional Tab O-1”, “Optional Tab B”, and “Optional Tab 3” all of which appear to include further submissions. The additional tabbed pages bring the total of the applicant’s written submissions to 21.75 pages, almost 12 more than ordered by the Tribunal. I also note that 8 out of the 9.25 pages of “Tab R” are not relevant to the issue in dispute as they reference prior OCF-18s. Although not in a traditional format, I am not persuaded by the respondent’s argument that the applicant exceeding the page limit would in someway limit its ability to form a proper response to the substantive issues in dispute.

12Moreover, I distinguish Oseyende from the present case because although the applicant filed his submissions late, the respondent was able to prepare and file rebuttal submissions before its deadline of April 12, 2024. As such, the respondent had the opportunity to file submissions that speak to the issues in dispute.

13When weighing procedural fairness and any potential prejudice brought, I find that the applicant would be severely prejudiced if portions of his submissions were otherwise excluded in this matter. Despite the length of the applicant’s submissions and the date that the submissions were provided, the respondent had time to file rebuttal submissions and any potential prejudice that might have affected the respondent would have been mitigated by his ability to file said submissions.

ANALYSIS

14To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

15The applicant confirmed in his submissions that he would not be addressing whether the treatment plan in dispute was reasonable and necessary. Rather, his arguments solely centre on the procedural requirements of s. 38(8) and s. 44(5) of the Schedule.

The OCF-18 dated January 6, 2021, is not payable pursuant to s. 38(11) of the Schedule

16I find that the respondent’s letter, dated January 8, 2021, is complaint with s. 38(8) of the Schedule.

17The applicant submitted an OCF-18 on January 6, 2021 in the amount of $2,164.23 for psychological services. The respondent replied by way of an Explanation of Benefits (“EOB”) dated January 8, 2021 which partially approved the treatment plan in the amount of $1,621.30.

18The applicant’s submissions are unclear. The applicant’s submissions direct me to a chart that he has compiled outlining a number of OCF-18s not in dispute and their corresponding denial/notice letter. Although not specifically stated, it seems that the applicant is relying on an alleged deficiency of a s. 44(5) notice that was provided by the respondent in response to an unrelated treatment plan, dated March 20, 2020. Again, although unclear, it seems that the applicant is arguing that the EOB dated January 8, 2021 references a insurer’s examination report, presumably related to the prior alleged deficient s. 44(5) notice for the treatment plan dated March 20, 2020, and, therefore, the medical reasons provided in the responding letter to the current treatment plan in dispute are void ab initio.

19The respondent submits that the applicant did not raise this issue at the case conference, and therefore, his arguments are procedurally unfair. In any event, the respondent argues that the EOB complies with the Schedule, as it is written in a clear and specific manner so that the applicant or any unsophisticated person could make an informed choice whether to accept or dispute the insurer’s decision.

20The sufficiency of the s. 44(5) notice with respect to an insurer’s examination referenced within the subject EOB dated January 8, 2021 is not before me. As such, I turn to the responding EOB, dated January 8, 2021, for the treatment plan in dispute, to assess whether the notice requirements of s. 38(8) of the Schedule have been met.

21Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well the medical and all of the other reasons why it considered any of the goods and services to not be reasonable and necessary.

22If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

2. The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

23The EOB dated January 8, 2021, for the OCF-18 for psychological services dated January 6, 2021, stated:

“As per the Insurer’s Examination report dated September 26, 2020, Dr. Marino indicated that psychological treatment at an hour and a half per session is not reasonable and necessary. He has approved hour sessions at a cost of $149.61. Aviva will not fund the following: taxes on services.

Therefore, Aviva will fund the submitted treatment plan (OCF-18) up to a maximum $1,621.30. Any fee charged in excess of the fee guideline will be your responsibility.”

24I find that the EOB is complaint with s. 38(8) of the Schedule. The letter clearly indicates that the respondent will fund one-hour sessions at $149.61 and directs the applicant to the s. 44 insurer examination report of Dr. Marino for explanation of said partial approval. Therefore, I find that the respondent has satisfied the provisions under s. 38(8), requiring that it provide the “medical reasons and all the other reasons” why it considered the goods and services it denied to not be reasonable and necessary.

Interest

25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, the applicant is not entitled to interest.

Award

26The 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.

27As there were no benefits unreasonably withheld or delayed, the applicant is not entitled to an award.

COSTS

28Rule 19.1 provides that a party may request costs of the proceeding if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith during the proceedings.

29The respondent submits that the applicant disregarded the CCRO by delivering his submissions nine days after the deadline and delivering submissions beyond the prescribed page limit despite having ample notice of the deadlines and page limits. As such, the respondent was forced to incur unnecessary legal expenses as it was required to prepare two sets of written submissions.

30I find that the respondent has not met the test set out in Rule 19. I fail to see the applicant’s late and lengthy submissions as serious misconduct that is unreasonable, frivolous, vexatious or in bad faith. While the applicant did not strictly comply with the CCRO, the respondent was still able to file submissions in a timely manner. As such, the Tribunal was able to carry out a fair and efficient process, prejudicing neither party. Given same, I am not persuaded that the high threshold for costs has been met.

ORDER

31I find that:

i. The applicant is not entitled to the treatment plan for psychological services or interest;

ii. The applicant is not entitled to an award; and

iii. The respondent is not entitled to costs in the amount of $500.00.