Licence Appeal Tribunal File Number: 24-005907/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:
Yaqoub Ahmed Noor
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Timothy Porter
APPEARANCES:
For the Applicant:
Julia Logoutova, Paralegal
For the Respondent:
Farzana Merchant, Counsel
Court reporter:
Jo Velimirovic
HEARD: by Videoconference:
April 14, 2025
OVERVIEW
1Yaqoub Ahmed Noor, the applicant, was involved in an automobile accident on July 16, 2022, 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, Intact 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. 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?
ii. Is the applicant entitled to $3,185.19 for physiotherapy services, proposed by 2430303 Ont. Inc. in a treatment plan/OCF-18 (“plan”) dated December 30, 2022?
iii. Is the applicant entitled to $2,300.00 for a psychological assessment, proposed by 2430307 Ont. Ltd. in a plan dated January 3, 2023?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
v. Is the applicant liable to pay costs to the respondent?
3The preliminary issue noted in the case conference report and order (“CCRO”) of September 5, 2024, was withdrawn by the respondent at the beginning of the hearing.
4During submissions on the procedural issue set out below, the respondent submitted that it would like costs in the amount of $500 to be added to the dispute, as the applicant has proceeded with the application in bad faith.
RESULT
5The applicant has not met his onus and remains within the MIG.
6The treatment plans are not payable pursuant to s. 38.
7As there are no benefits owing, there is no interest due.
8The respondent is not entitled to costs.
PROCEDURAL ISSUES
9At the outset of the hearing, the applicant brought a motion seeking to exclude the following three reports that were late delivered, March 27, 2025, as per the timelines identified in the CCRO of September 5, 2024:
i. s. 44 Internal Medicine Specialist Report of Dr. Charanjit Sandhu, assessment conducted September 25, 2024, and report issued March 14, 2025
ii. s. 44 Internal Medicine Specialist Addendum Report of Dr. Charanjit Sandhu, assessment conducted February 2, 2025, and report issued March 14, 2025
iii. s. 44 psychology report of Dr. Monique Costa El-Hage assessment conducted February 27, 2025, and report issued March 14, 2025
10The respondent submits that missed examinations by the applicant were the cause of any delays in obtaining and exchanging the late items.
11Rule 9.3 of the Licence Appeal Tribunal Rules, 2023 (“Rules”) set out the factors to consider when making a determination as to whether the documents in question may be entered into the hearing including the reasons for non-compliance, the potential for prejudice, the degree to which the information contained in the evidence is within the knowledge of the other party, the position of the responding party and the relevance of the evidence to the dispute.
12The respondent submits that the reason for non-compliance with the CCRO timelines relate to the applicant’s non-attendance at insurer’s examinations. The respondent asserts that the applicant did not attend three separately scheduled insurer’s examinations and asked to have two subsequently scheduled examinations rescheduled. At the time of the CCRO, the parties were alive to the fact that the applicant had previously not attended examinations and a preliminary issue regarding this was noted. The parties agreed to an adjournment of the original hearing date, February 4, 2025, because the applicant and respondent had found a mutually agreeable date, February 25, 2025, for the s. 44 psychological assessment to take place. Taken together, I am persuaded that the respondent has a reasonable explanation for the non-compliance and that the applicant was well aware of the implications of delays in his attendance at insurer’s examinations.
13I find the respondent would be prejudiced if these reports were excluded. I also acknowledge that the applicant is potentially prejudiced in not having sufficient time to consider the reports in preparation for the examination of the report authors. The information contained within the reports is not within the direct knowledge of both parties.
14I find that the reports are relevant to the issues in dispute.
15In sum, when considering the s. 9.3 factors, I deny the applicant’s request and admit the reports as evidence to the hearing. While admitted, and in consideration of the fact that the reports were late filed, I invited the parties to make submissions regarding the weight to be assigned to this evidence in their closing statements. In addition, to assuage any prejudice regarding preparation time that the applicant may have, I offered to provide time during the hearing for the applicant to better review the material. The offer of additional time was not taken up by the applicant’s representative.
ANALYSIS
The applicant remains within the MIG.
16I find that the applicant has not met his onus and remains within the MIG.
17Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are 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 may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The Tribunal has determined that a psychological condition may warrant removal from the MIG. An insured 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 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. In all cases, the burden of proof lies with the applicant.
19The applicant submits that low back pain and psychological issues arising from the accident should remove the applicant from the MIG. The applicant relies solely on his testimony.
20The respondent submits that the applicant’s workplace injuries are the source of any physical impairment and points to previous trauma as the source of any psychological complaints. The respondent relies on the expert reports of Dr. Monique Costa El-Hage, psychologist, and Dr. Charanjit Sandhu, M.D. which found.
The applicant has not established that his injuries fall outside of the MIG
21I find that the applicant has not met his onus to establish that his physical injuries fall outside of the MIG.
22The applicant testified that low back pain negatively affects all aspects of his life, that he was unable to work for months following the accident due to pain, he cannot take care of his children, cannot be physically intimate with his wife and cannot sit for any length of time.
23The applicant did not point to any other evidence. The applicant did not enter a single exhibit. The respondent pointed to hospital records, from the applicant’s submissions, which demonstrate the applicant was off work prior to the accident with a work-related broken finger. The hospital records also demonstrate that 5 weeks post accident the work-related broken finger had healed, and the hospital physician provided the applicant with the opinion that he was all clear to return to normal activities.
24I am not persuaded that the applicant has injuries or impairments which would necessitate treatment outside of the MIG. The applicant has not met his onus to demonstrate that he suffers from an impairment that would necessitate treatment outside of the limits established in the minor injury guideline.
The applicant has not established that he suffers from a psychological injury
25I find that the applicant has not met his onus to establish that he has a psychological impairment that warrants removal from the MIG.
26The applicant testified that he is unable to sleep and was emotional and stressed as a result of not being able to pay bills following the subject accident.
27The applicant did not point to any other evidence. The applicant filed a brief but did not enter anything as exhibits or point me to any part of the submitted brief.
28I am not persuaded by the testimony of the applicant that he suffers from a psychological injury or functional impairment. The applicant has provided insight to his lived experience; however, his self-reports are not supported by the experience of a medical degree or additional medical opinions or evidence that support his opinion. Therefore, I afford the applicant’s testimony regarding a psychological injury a diminished weight. In addition, without objective medical opinions and evidence, related to the subject accident, the applicant’s opinion that these self-reports are related to the subject accident does not carry any weight. The applicant has not met his onus to demonstrate on a balance of probabilities that he suffers from an impairment of a psychological nature that would necessitate treatment outside of the limits established in the Minor Injury Guideline.
The applicant is not entitled to the treatment plans in dispute
29As I have found that the applicant remains within the MIG, I am not required to determine whether the treatment plans submitted in this dispute are reasonable and necessary.
30As an alternative argument, the applicant submitted that he is entitled to the disputed treatment plans because the respondent’s denials did not comply with the requirements in s. 38(8) of the Schedule.
31The applicant has not met his onus to demonstrate that the denial notices were not compliant with s. 38(8).
32Sections 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 as the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.
33If 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:
i. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
ii. 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).
34The applicant submits that the two treatment plans in dispute at this hearing were denied with “boilerplate” language that does not meet the standard outlined in s. 38(8).
35The respondent submits that its denial of treatment plans in both instances were compliant with s. 38(8). In particular, the denials were delivered within 10 business days of submission, that MIG is the medical reason provided, and that the respondent invited the applicant to supply more medical documentation for consideration.
36The applicant pointed me to Jamily v Certas Home and Auto Insurance Company, 2022 CanLII 98064 (ON LAT), in support of his position.
37There is no evidence before me of the treatment plans or the denials. The applicant failed to call any exhibits related to the treatment plans but on review of the applicant’s submissions I would have found the notices compliant because the denials were made within 10 days of the treatment plan submission, there is a medical reason provided for the denial and the applicant was invited to submit additional medical documentation should he disagree with the decision. The applicant has not met his onus to demonstrate that the denial notices were not compliant with s. 38(8).
38Therefore, I find that the treatment plans dated December 30, 2022, and January 2, 2023, are not payable.
Interest
39As there are no benefits owing, interest does not apply.
Costs
40Rule 19.1 states that where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith, that party may make a request to the Tribunal for costs.
41Section 19.5 outlines the relevant factors which should be considered by the Tribunal when determining whether to order costs and the amount of costs to be awarded, which include the seriousness of the misconduct; whether the conduct was in breach of a direction or order issued by the Tribunal, whether or not a party's behaviour interfered with the Tribunal's ability to carry out a fair, efficient, and effective process; prejudice to other parties; and the potential impact an order for costs would have on individuals accessing the Tribunal system. Section 19.6 allows for a maximum of $1,000.00 for each full day of attendance at a motion, case conference or hearing.
42The respondent submitted that the applicant should be sanctioned $500.00 for bringing forward a bad faith claim.
43The applicant submitted that these matters are an imbalanced fight.
44It is an applicant’s right to dispute the decisions of the respondent. I am not persuaded that the applicant proceeded in a frivolous, vexatious, or bad faith manner; the applicant made submissions in support of their position and engaged throughout the process. The Tribunal’s ability to carry out a fair, efficient, and effective process was not impacted by the applicant.
45It is well established that the threshold for awarding costs is a high one and it is clear to me that it has not been met in this case.
46No costs are ordered.
ORDER
49The applicant has not met his onus and remains within the MIG.
50The applicant is not entitled to the treatment plans pursuant to s. 38.
51As there are no benefits owing, there is no interest due.
52The respondent is not entitled to costs.
Released: July 2, 2025
Timothy Porter
Adjudicator