Satish Luthra v. Aviva Insurance Company of Canada, 2025 CanLII 5870

Luthra v. Aviva Insurance Company of Canada, 2025 ONLAT 23-002562/AABS

Citation: Luthra v. Aviva Insurance Company of Canada, 2025 ONLAT 23-002562/AABS

Licence Appeal Tribunal File Number: 23-002562/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:

Satish Luthra

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Caley Howard

APPEARANCES:

For the Applicant: Shahzad Ayub, Counsel

For the Respondent: Christina Chiu, Counsel

HEARD: By way of written submissions

OVERVIEW

1Satish Luthra, the applicant, was involved in an automobile accident on August 21, 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, Aviva 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 $2,486.00 for a chronic pain assessment, proposed by Michael Gofeld in a treatment plan/OCF-18 (“treatment plan”) submitted February 1, 2023?

ii. Is the applicant entitled to $2,486.00 for an orthopaedic assessment, proposed by Getahun Tajedin in a treatment plan submitted February 8, 2023?

iii. Is the applicant entitled to $2,486.00 for a hyperbaric oxygen assessment, proposed by Michael Gofeld in a treatment plan submitted February 9, 2023?

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 interest on any overdue payment of benefits?

3The applicant withdrew issue 4 as listed in the Case Conference Report and Order dated November 1, 2023.

RESULT

4I find:

i. The applicant is entitled to $2,486.00 for a treatment plan for a chronic pain assessment, plus interest, if it was incurred between the 11th day following the receipt of the treatment plan by the respondent and June 30, 2023;

ii. The applicant is entitled to $2,486.00 for a treatment plan for an orthopaedic assessment, plus interest, if it was incurred between the 11th day following the receipt of the treatment plan by the respondent and June 30, 2023;

iii. The applicant is entitled to $2,486.00 for a treatment plan for a hyperbaric oxygen assessment, plus interest, if it was incurred between the 11th day following the receipt of the treatment plan by the respondent and June 30, 2023; and

iv. The respondent is not liable to pay an award under s. 10 of Reg. 664.

PROCEDURAL ISSUES

Late filing of written submissions

5The respondent submits that the applicant filed and served his written submissions late and, with the applicant’s agreement, the respondent filed its submissions late as well.

6I accept that the parties’ agreement addressed the applicant’s late filing in a way that was fair and accounted for any prejudice experienced by the respondent. I accept both of the parties’ late-filed submissions.

Has the applicant exceeded the page limit for his written submissions?

7I find that main body of the applicant’s written submissions falls within the 10-page limit set by the Case Conference Report and Order dated November 1, 2023. The additional submissions that the applicant has attached to the written submissions at various tabs will not be considered in the decision.

8The respondent submits that the applicant has exceeded the page limit for his written submissions by attaching some parts of his written submissions at various tabs and referring to them in the main body of the written submissions. The respondent submits that “Tab R” consists of 11 pages of submissions. The respondent submits that there are approximately 9 other pages of submissions attached at various tabs.

9The applicant submits that not all of the content attached at Tab R is an essential part of his submissions. He has highlighted certain passages at Tab R that he submits, when added together with the main body of his submissions, totals less than 10 pages. The applicant submits that the unhighlighted passages are optional. The applicant further submits that the additional submissions would take up fewer pages if it were reformatted.

10I find that the Tribunal restricted the applicant’s submissions to 10 pages in the Case Conference Report and Order dated November 1, 2023. I find that the applicant’s Tab R, Tab Y and “optional” Tabs bring the total pages of written submissions to well over 10, when added to the 8 pages of his main written submissions.

11I find that the respondent has been prejudiced by the applicant’s inclusion of additional submissions because the respondent has kept its submissions to the 10-page limit set out in the Case Conference Report and Order, which prevented it from responding to the additional submissions of the applicant in the detail that may have been needed.

12In comparison, I find that there is relatively little prejudice to the applicant if I exclude the additional submissions because I can decide the application on the merits without referring to the additional submissions at Tab R and the optional tabs. Therefore, I will not consider any of the submissions at Tab R or the optional tabs.

Applicant did not provide particulars of award

13The respondent submits that the applicant did not provide it with the particulars of his claim for an award within 30 days of his receipt of the respondent’s log notes in accordance with the Case Conference Report and Order of November 1, 2023. The respondent submits that the applicant did not provide the particulars of his claim at any time prior to the filing of his written submissions. The respondent submits that the applicant should be precluded from pursuing his claim for an award as a result.

14The respondent did not make any submissions as to how it was prejudiced by the applicant’s non-compliance with the requirement that he provide the particulars of his award claim within 30 days of his receipt of the respondent’s log notes. The respondent responded to the applicant’s claim for an award in its submissions, therefore both parties’ submissions on the issue are before me. In this situation, I find that it is most efficient and proportionate for me to decide the issue on its merits.

ANALYSIS

Entitlement to treatment plans

15I find the applicant is entitled to the treatment plans for a chronic pain assessment, an orthopaedic assessment and a hyperbaric oxygen assessment, if incurred between the 11th day after the respondent’s receipt of each treatment plan and June 30, 2023.

16The applicant limited his submissions respecting the entitlement to the disputed treatment plans to the non-compliance of the respondent’s denials with s. 38(8) of the Schedule.

17Section 38(8) of the Schedule requires an insurer to respond to each treatment plan within 10 days of receiving it by identifying the goods, services, assessments and examinations described in the treatment plan that the insurer does and does not agree to pay for. The response must include the medical reasons and all of the other reasons why the insurer considers any proposed treatments or assessments not reasonable or necessary.

18If an insurer fails to comply with s. 38(8), the consequences are:

(i) The insurer cannot take the position that the insured person has an impairment to which the MIG applies; and

(ii) The insurer must pay for any proposed treatments or assessments set out in the plan that are incurred in the period starting on the 11th day after the insurer receives the plan and ending on the date when the insurer provides the insured with a response that complies with s. 38(8).

19Similarly, s. 44(5)(a) of the Schedule sets out the criteria for the notice letters that require an insured person to attend an insurer’s examination. The insurer must set out “the medical and other reasons for the examination.”

20Although I am not bound by Tribunal decisions, I find that T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT), provides useful guidance on the meaning of “medical reasons.” It found that such reasons should:

(i) include specific details about the insured’s condition that formed the basis for the insurer’s decision; and

(ii) should allow an unsophisticated person to make an informed decision to accept or dispute the insurer’s decision.

A) Sufficiency of the reasons in the respondent’s denial letter of February 21, 2023 in respect of the treatment plans for a chronic pain assessment, an orthopaedic assessment and a hyperbaric oxygen assessment

21The treatment plan for a chronic pain assessment, submitted February 1, 2023, was completed by Michael Gofeld and sought funding for $2,486.00. The treatment plan for an orthopaedic assessment, submitted February 8, 2023, was completed by Getahun Tajedin and sought funding for $2,486.00. The treatment plan for a hyperbaric oxygen assessment, submitted February 9, 2023, was completed by Michael Gofeld and sought funding for $2,486.00.

22The respondent’s denial letter of February 21, 2023 addressed all three of the above-referenced treatment plans and required the applicant to attend an insurer’s examination (“IE”). When the applicant did not attend the scheduled IEs, the respondent sent further notice letters dated March 23, 2023, April 13, 2023, and May 16, 2023, rescheduling the IEs. After the applicant attended the scheduled IEs on June 22, 2023, the respondent sent a further denial letter dated June 30, 2023, which included medical reasons based on the results of the IEs.

23The applicant submits that the respondent’s denial letter of February 21, 2023 and subsequent follow-up letters do not comply with s. 38(8) and s. 44(5)(a) of the Schedule and the treatment plans should be payable.

24The respondent submits that the letter of February 21, 2023 contains the following medical reasons for the denial of the treatment plans and the requirement for the applicant to attend the IE: “The medical records previously supplied including from Dr. Dhaliwal Psychiatrist, do not support a need for an assessment with this specialty. I do not believe this assessment is reasonably necessary for your accident-related impairments.”

25I find that the medical reasons set out in the respondent’s February 21, 2023 denial letter do not comply with s. 38(8) and s. 44(5)(a) because:

i. they do not refer to any specific accident-related impairment or condition;

ii. while they refer to the medical records of Dr. Dhaliwal, psychiatrist, they do not refer to any specific opinion, observation or test result recorded by Dr. Dhaliwal, which the respondent found relevant to its decision; and

iii. they do not discuss the specific details that formed the basis of the respondent’s decision in a manner that would allow the applicant to make an informed decision to accept or dispute the respondent’s decision.

26I also find that there were no medical reasons included in the March 23, 2023 letter, in which the respondent attempted to reschedule the applicant’s attendance at the IEs. It was strictly an attempt to reschedule the IEs. Further, I find that the medical reasons included in the letters of April 13, 2023 and May 16, 2023 were identical to those included in the letter of February 21, 2023. Therefore, I find that the medical reasons included in these letters were also deficient and did not comply with ss. 38(8) or 44(5)(a) of the Schedule.

B) Sufficiency of the respondent’s denial letter of June 30, 2023

27The last notice letter to which I was directed was dated June 30, 2023. This letter referred extensively to the results of the IEs dated June 22, 2023, citing passages from the reports of both Dr. Kruger, physician, and Dr. Hasan, psychiatrist.

28The applicant relies on Taksali v. Aviva Insurance Company, 2023 CanLII 96347 (ON LAT) (“Taksali”), in which the Tribunal determined that the insurer could not rely on the results of the improperly compelled IE to cure a deficient denial of benefits. The applicant submits that the respondent is not entitled to ground its denial of benefits in the IEs of June 22, 2023 because the notices compelling the applicant to attend the IEs did not comply with s. 44(5)(a). Specifically, the applicant submits that because the Schedule constitutes consumer protection legislation, the rights of the insured thereunder are incapable of being waived. As a result, the applicant submits that the attendance of an insured at an improperly compelled IE cannot constitute a waiver of the insured’s entitlement to proper notice to attend the IE and the results of the IE are void ab initio.

29The respondent did not make any submissions on this issue.

30I am not required to follow Tribunal decisions and I do not find the reasoning in Taksali compelling in these circumstances. While I agree that an improperly compelled IE should be given less weight in the determination of entitlement to a benefit, a denial of benefits does not need to be legally correct in order to be compliant with s. 38(8). Therefore, while I would give the improperly compelled IE less weight if I was determining the reasonableness and necessity of the disputed treatment plans, I find that the weight to which I give the IE does not factor into my analysis of whether the denial of benefits complies with s. 38(8).

31I find that the “reasons for our decision” set out in the respondent’s letter of June 30, 2023 comply with the requirements of s. 38(8) because:

i. they refer to specific test results, observations and opinions formed by the medical professionals who performed the IEs, Dr. Kruger and Dr. Hasan; and

ii. they connect those results and opinions to the proposed treatment plans in a manner that explains the basis for the respondent’s decision and would enable the applicant to determine whether to accept or dispute that decision.

32As a result, I find that the letter of June 30, 2023 remedies the deficient medical reasons in the letter of February 21, 2023 and subsequent deficient letters of March 23, 2023, April 13, 2023 and May 16, 2023.

C) Treatment plans for chronic pain assessment, orthopaedic assessment and hyperbaric oxygen assessment

33I find that the initial denial of the treatment plans for chronic pain assessment, orthopaedic assessment and hyperbaric oxygen assessment, dated February 21, 2023, did not comply with s. 38(8). The deficient reasons were not cured until the respondent sent the denial letter dated June 30, 2023. As a result, the consequences of s. 38(11) were triggered and each of the three treatment plans, referenced above is payable, if incurred between the 11th day following the respondent’s receipt of the treatment plan and June 30, 2023.

Interest

34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest on the treatment plans for a chronic pain assessment, an orthopaedic assessment and a hyperbaric oxygen assessment, if incurred between the 11th day following the receipt of the treatment plan by the respondent and June 30, 2023.

Award

35I find that the respondent is not liable to pay an award under s. 10 of Reg. 664.

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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this criteria.

37The applicant submits that the respondent’s deficient denial of the treatment plans and deficient notice compelling the applicant’s attendance at the IEs constitutes flagrant misuse of s. 44(5) of the Schedule and a subversion of s. 38(8) of the Schedule, which demands a stern rebuke by the Tribunal.

38The respondent submits that it depended on medical opinions from qualified professionals as the basis for its denial of benefits.

39I find that the respondent’s non-compliant denial letter of February 21, 2023 does not, by itself, make the respondent liable to pay an award. Also, I find that the applicant has not directed me to any evidence to demonstrate that the respondent’s non-compliance amounted to unreasonable conduct in these circumstances.

40I further find that the specific language used by the respondent in the denial letter does not amount to behaviour that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. Therefore, the respondent is not liable to pay an award.

ORDER

41I find:

i. The applicant is entitled to $2,486.00 for a treatment plan for a chronic pain assessment, plus interest, if it was incurred between the 11th day following the receipt of the treatment plan by the respondent and June 30, 2023;

ii. The applicant is entitled to $2,486.00 for a treatment plan for an orthopaedic assessment, plus interest, if it was incurred between the 11th day following the receipt of the treatment plan by the respondent and June 30, 2023;

iii. The applicant is entitled to $2,486.00 for a treatment plan for a hyperbaric oxygen assessment, plus interest, if it was incurred between the 11th day following the receipt of the treatment plan by the respondent and June 30, 2023; and

iv. The respondent is not liable to pay an award under s. 10 of Reg. 664.