Awad v. Certas Home and Auto Insurance Company, 2025 CanLII 5867

Citation: Awad v. Certas Home and Auto Insurance Company, 2025 CanLII 5867

Licence Appeal Tribunal File Number: 23-001523/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:

Sarra Awad

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Lisa Yong

APPEARANCES:

For the Applicant: Deepak Bakshi, Counsel

For the Respondent: Brittanny K Tinslay, Counsel

HEARD: By way of written submissions

OVERVIEW

1Sarra Awad, the applicant, was involved in an automobile accident on May 4, 2018, 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, Certas Home and Auto Insurance Company, and applied to the Licence Appeal Tribunal (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from May 4, 2018, to present and ongoing?

ii. Is the applicant entitled to the assessments proposed by Tier 1 Assessments Ltd, as follows:

a. $2,753.80 for an orthopaedic assessment, in a treatment plan/OCF-18 (“plan”) submitted June 30, 2021, and denied February 15, 2022; and

b. $2,530.00 for a psychological assessment, in a plan submitted February 5, 2022, and denied March 31, 2022?

iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Psychology Health Solutions in a plan submitted November 28, 2022, and denied December 13, 2022?

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

v. Is the applicant entitled to costs pursuant to Rule 19 of the Licence Appeal Tribunal Rules, 2023 (“Rules”)?

RESULT

3The applicant is not entitled to a NEB.

4The applicant is not entitled to the treatment plans in dispute.

5The applicant is not entitled to an award.

6The applicant is not entitled to costs.

PROCEDURAL ISSUES

7The applicant made submissions regarding costs at the end of her written submissions and from this, I assume she seeks to add costs as an issue in dispute pursuant to s. 19.2 of the Rules.

8In accordance with the Rules, a party is entitled to add the issue of costs to a proceeding before a decision is released. Therefore, I consent to add costs as an issue in dispute.

ANALYSIS

The applicant is not entitled to a NEB

9I find that the applicant is not entitled to a NEB.

10Section 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 12(3) provides that the insurer is not required to pay a NEB “for the first four weeks after the onset of the complete inability to carry on a normal life” and “for more than 104 weeks” post-accident”. Thus, for the purposes of my analysis below, the period in dispute for a NEB entitlement should be from June 1, 2018 to May 4, 2020.

11Section 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.

12Section 32(3) provides that “[a]n applicant who fails to submit a completed disability certificate is not entitled to a specified benefit [i.e. NEB] for any period before the completed disability certificate is submitted.”

13The applicant submits that she suffers a complete inability to carry on a normal life as a result of the accident and has difficulties performing her activities of daily living such as housekeeping and home maintenance services. She submits that she suffers from injuries including a fracture to her fibula, sprain and strain of her cervical, thoracic and lumbar spine, contusion of her lower leg, emotional stress and shock as a result of the accident. The applicant submits that she was a student at the time of the accident and was also a volunteer mathematics teacher at Sudanese League of Hamilton (“SLH”) where she was subsequently offered a full-time job around April 2019, but had to turn down the offer due to her accident-related injuries. The applicant submits that she continues to struggle with her education due to her physical and psychological impairments which has impeded her ability to be employed in the field of her education. The applicant relies on her academic records from Mohawk College and an offer letter of employment from SLH dated April 13, 2019.

14The applicant acknowledges that she did not submit a completed OCF-3 Disability Certificate before seeking NEB entitlement as required by s. 36(2) and (3) of the Schedule but requests the Tribunal to grant an extension on compassionate grounds. The OCF-3 referred to in evidence by the applicant was signed by herself and Mr. Jaspreet Kaur, physiotherapist, on May 4, 2021.

15The applicant did not elaborate further and did not refer to evidence in support of her submissions in this regard.

16In sum, the applicant seeks NEB for a period before the OCF-3 was submitted to the respondent. While she asks for “an extension”, I interpret this to mean waiving the requirement in s. 32(3). However, I find that the wording of s. 32(3) is strict and does not provide me with the authority to waive the applicant’s obligation under s. 32(3) and to allow the applicant to seek a NEB entitlement retrospectively prior to submitting the OCF-3 form. Further, the applicant has not pointed me to any authority to waive this provision.

17Given the above circumstances, I find the applicant is not entitled to a NEB as she did not submit a completed OCF-3 Disability Certificate within the period two years post-accident, as required by s. 32(3).

The applicant is not entitled to $2,753.80 for an orthopaedic assessment dated June 30, 2021

18I find that the applicant is not entitled to an orthopaedic assessment because she has not established on a balance of probabilities that it is reasonable and necessary.

19To 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.

20The applicant submitted a plan on June 30, 2021, for an orthopaedic assessment. In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary.

21The applicant submits she has tendered sufficient medical evidence that supports the proposed orthopaedic assessment, which notes that she continues to suffer from ongoing pain and functional limitations that has affected her activities of daily living including housekeeping and educational studies as a result of her accident-related injuries. She relies on the clinical notes and records (“CNRs”) of Dr. Rick Arthur Ogilvie, medical doctor, hospital records from Juravinski Hospital and CNRs from Upper Wellness Centre.

22The respondent submits that the applicant failed to meet her onus to prove that the plan is reasonable and necessary. It submits that s. 25 of the Schedule provides that the maximum amount claimable for an assessment is $2,200.00. It also submits that the applicant did not provide any medical records of any recommendations for a further orthopaedic assessment from a family doctor.

23I find that the hospital records dated May 4, 2018 state that the applicant’s primary complaint was her leg injury, specifically a fracture to her left fibula, and her left leg was seen swollen in the lateral aspect with normal ranges of motion in her knee. This was confirmed by an x-ray taken at the hospital on the same day. Her final diagnosis at the hospital was a non-displaced fractured fibula in her left leg. The applicant was discharged on the same day and was advised to follow-up with her family doctor and was prescribed Advil and Tylenol.

24I agree with the respondent that the applicant did not provide medical records to corroborate the orthopaedic assessment recommendation set out in the OCF-18 in the three years post-accident. The applicant made submissions regarding her visits with her family doctor, but she did not tender CNRs from her family doctor as evidence. I am unable to draw conclusions based on the applicant’s submissions as they are not evidence.

25The evidence before me shows that on May 8, 2018, the applicant visited Dr. Ogilvie at McMaster University Medical Centre who recommended a foam walker, crutches and “weightbearing as tolerated” and asked the applicant to return for a follow-up appointment in six weeks’ time to repeat an x-ray of her left lower leg. Dr. Ogilvie advised that the applicant’s fracture may take up to 3-6 months to heal. A subsequent x-ray dated July 10, 2018, of the applicant’s left leg, reported that the fracture was still seen, and increased callus formation was noted with satisfactory alignment. Dr. Ogilvie did not request a follow-up appointment and the applicant did not refer to any further CNRs from Dr. Ogilvie or any other doctor from McMaster University Medical Centre in the period between July 2018 and June 2021.

26In the CNRs of Upper Wellness Centre, it appears that the entry dated November 1, 2018, by Mr. Jaspreet Kaur, registered physiotherapist, was the latest CNR that mentioned her leg or foot. He noted that the applicant reported that her foot and back were feeling “a little better and she has improved function”. I find that this reference in 2018 does not support the need for an orthopaedic assessment three years later in 2021.

27Further, I find that the majority of the CNRs are about the applicant’s complaint of pain in her shoulders, lower and upper back. The ambulance records and the hospital records do not indicate any complaints or injuries or pain in her shoulder and back from the day of the accident. Therefore, I find that these CNRs also do not support the need for an orthopaedic assessment for accident-related conditions.

28Given the above reasons, I find on a balance of probabilities that the proposed orthopaedic assessment is not reasonable and necessary.

The applicant is not entitled to $2,530.00 for a psychological assessment submitted February 5, 2022 or $2,200.00 for a psychological assessment submitted November 28, 2022

29I find that the applicant is not entitled to payment for the two proposed psychological assessments as she has not established on a balance of probabilities that they are reasonable and necessary.

30The applicant submits that her family doctor’s CNRs and treating providers have confirmed that her “condition”, which I assume refers to a psychological condition, began after the accident and continued since that time. She submits that she continues to suffer from ongoing mental, emotional and functional limitations since the accident and relies on the pre-screening report dated November 23, 2022 by Ms. Nidaa Khalil, a psychotherapist working under the supervision of Mr. Sean Shahrokhnia, psychologist.

31The applicant did not provide submissions for why two plans were submitted for the same services for a psychological assessment.

32The applicant only tendered the OCF-18 form for the treatment plan submitted on November 28, 2022, completed by Mr. Shahrokhnia. She did not provide the OCF-18 form dated February 5, 2022. However, even if the applicant had filed the February 5, 2022 OCF-18, I find that she has not met her onus because on my review of the applicant’s post-accident medical records tendered before me, her main complaints were about her shoulders, back and left leg.

33I find that the medical evidence does not support the need for a psychological assessment because there is no reference in the CNRs of any psychological complaints by the applicant following the accident.

34I am not persuaded by the pre-screening report dated November 23, 2022 by Ms. Khalil as it was conducted over four years post-accident and based solely on the applicant’s self-reports and subjective complaints. The applicant’s psychological complaints of headaches, sleep difficulties, flashbacks and emotional distress are not corroborated by contemporaneous medical records from her other treating physicians, such as her family doctor.

35Given the above, I find on a balance of probabilities that the proposed plans for a psychological assessment are not reasonable and necessary.

Award

36The 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.

37I find that the applicant is not entitled to an award for the following reasons.

38The onus is on the applicant to prove on a balance of probabilities that the respondent unreasonably withheld or delayed the payment of benefits so as to be entitled to an award in accordance with s. 10 of Regulation 664. The Tribunal assesses an award based on whether the insurer’s behaviour is “excessive, imprudent, stubborn, inflexible, unyielding or immoderate,” and may award up to 50% of the total benefits in dispute if it determines that the insurer unreasonably withheld or delayed benefit payments.

39The applicant argues that the respondent unreasonably withheld or delayed payment for the proposed plans. She submits that she has provided the respondent with sufficient medical evidence proving physical and psychological accident-related injuries which should not be ignored and, as a result of the denials, it has caused the applicant hardship.

40The respondent submits that the applicant made only broad assertions without the support of any evidence for her award claim and relies on the cases Beltrame v. Dominion of Canada General Insurance Co., 2014 CarswellOnt 8657 and H.A-R v. Aviva General Insurance, 2017 CanLII 76929 (ON LAT), arguing that a mere denial of a claim that ultimately succeeds is not, in itself, an act of bad faith and there is nothing in the evidence adduced by the applicant to suggest that the respondent was unreasonable or dealing in bad faith.

41I find that the threshold for an award is high. The applicant did not point to evidence to support her submissions that show the respondent had acted in a way that was “excessive, imprudent, stubborn, inflexible, unyielding or immoderate”.

42As a result of the above, I am not persuaded on the balance of probabilities that the respondent unreasonably withheld or delayed payment of benefits and I find that the applicant is not entitled to an award.

Costs

43I find the applicant is not entitled to costs.

44The applicant submits broadly that she provided submissions in accordance with the deadlines with the appropriate evidence. She submits that due to the lack of evidence provided by the Respondent, she requests a maximum cost of $1,000.00 pursuant to the Rules.

45The respondent submits that the applicant failed to provide any evidence in support of her claim for costs and noted that the burden of proof for entitlement of medical benefits lies with the applicant.

46Pursuant to Rule 19.4, submissions on cost must set out the reasons for the request and the particulars of the other party’s conduct that are alleged to be unreasonable, frivolous, vexatious, or in bad faith.

47The applicant only provided hospital records, medical records from Upper James Wellness Centre and academic records as her evidence. Based on the applicant’s evidence and in consideration of all the relevant factors as set out under Rule 19.5, I do not find any misconduct or breach of any Tribunal orders by the respondent that had interfered with the process leading to and at this hearing. Accordingly, I decline to award costs to the applicant.

ORDER

48The applicant is not entitled to a NEB.

49The applicant is not entitled to the treatment plans in dispute.

50The applicant is not entitled to an award.

51The applicant is not entitled to costs.

52The application is dismissed.