Nie v. Aviva Insurance Canada, 2025 CanLII 72423

Licence Appeal Tribunal

Citation: Nie v. Aviva Insurance Canada, 2025 ONLAT 23-010613/AABS Licence Appeal Tribunal File Number: 23-010613/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:

Hao Yang Nie Applicant

and

Aviva Insurance Canada Respondent

Decision

Adjudicator: Aric Bhargava

Appearances: For the Applicant: Anil Hampole, Counsel For the Respondent: Tefiney E Scarlett, Paralegal

Heard: By way of written submissions

OVERVIEW

1Hao Yang Nie, the applicant, was involved in an automobile accident on August 11, 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, Aviva Insurance 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 a non-earner benefit (“NEB”) of $185.00 per week from September 9, 2022 to date and ongoing?

ii. Is the applicant entitled to $4,217.20 for physiotherapy services, proposed by Uheal Rehab Centre in a treatment plan submitted December 2, 2022?

iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan submitted September 1, 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 interest on any overdue payment of benefits?

RESULT

3The applicant is not entitled to a non-earner benefit.

4The physiotherapy treatment plan for $4,217.20 has been fully approved by the respondent, and therefore is no longer in dispute for the purposes of this hearing.

5The psychological assessment for $2,200.00 has been fully approved by the respondent, and therefore is no longer in dispute for the purposes of this hearing.

6The respondent is not liable for an award.

7As there are no benefits due, interest is not payable.

ANALYSIS

Is the applicant entitled to a non-earner benefit?

8I find the applicant has not met his burden to prove entitlement to NEB.

9Section 12(1) of the Schedule provides that an insurer shall pay 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 3(7)(a) of the Schedule 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 (“Heath”), which generally focuses on a comparison of the applicant’s pre- and post-accident activities.

10The applicant submits he has suffered a complete inability to carry on a normal life because he sustained serious physical and psychological injuries resulting from the accident. The applicant relies on the OCF-3/Disability Certificate dated August 17, 2022, the clinical notes and records (CNRs) of his family physician, his physiotherapist, and a psychological pre-screen report.

11In the OCF-3, completed by Mr. Ahmed Afifi, physiotherapist, with UHeal Rehab Centre, in “Part 6 Disability Tests and Information”, “Yes” was selected to indicate he has suffered a complete inability to carry on a normal life with injuries listed as headache, dizziness, disturbance of activity and attention, slowness and poor response, amnesia, whiplash associated disorder, pain in thoracic spine, sprain and strain of thoracic spine, joints and ligaments of shoulder girdle, elbow, at wrist and hand level, sleep disorder, malaise and fatigue, nervousness, and unhappiness. However, I was not directed to evidence of how these impairments result in a complete inability to carry on a normal life in accordance with the Heath factors.

12I have also reviewed the CNRs of Dr. Kris Cheng, family physician, at Birchmount Clinic and the OCF-18 completed by Dr. Richard Tavares, chiropractor, at UHeal Rehab Centre and find that they do not establish a complete inability to lead a normal life. Dr. Cheng noted the applicant had full range of motion in his c-spine with “some pain” and full range of motion in his right shoulder with “some pain” and tenderness. Dr. Cheng did not note restrictions or limitations to daily activities.

13In his submissions, the applicant has not specified his pre-accident activities of daily living, or demonstrated how his engagement in these activities has changed as a result of the accident. The applicant did not identify the activities he values or provide evidence of the frequency and time commitments, or his pre-accident activities as required by Heath. In the absence of information on the activities he ordinarily engaged in or valued, the applicant has not satisfied his onus on a balance of probabilities.

14The respondent submits that the applicant continued his studies post-accident and failed to provide any medical documentation to support the claim of emotional and physical impairments.

15I find the applicant has not addressed the principles for entitlement to a NEB as outlined in Heath, and has not referred me to evidence to support his entitlement to NEB. As a result, I find on a balance of probabilities that the applicant is not entitled to a NEB.

16The applicant did not make any submissions regarding the physiotherapy treatment plan or the psychological assessment.

17The respondent submits that the physiotherapy treatment plan for $4,217.20 and psychological assessment for $2,200.00 were approved in a letter dated October 31, 2024. The applicant did not dispute the matter.

Interest

18As there are no overdue payments of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

The respondent is not liable to pay an award

19The 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.

20As the applicant has been found to not be entitled to the benefits in dispute, it follows that no benefits were unreasonably withheld or delayed. Consequently, the applicant is not entitled to an award.

ORDER

21I find that:

i. The applicant is not entitled to a non-earner benefit.

ii. The OCF-18 for $4,217.20 has been fully approved by the respondent, and therefore is no longer in dispute for the purposes of this hearing.

iii. The OCF-18 for $2,200.00 has been fully approved by the respondent, and therefore is no longer in dispute for the purposes of this hearing.

iv. The respondent is not liable for an award.

v. As there are no benefits due, interest is not payable.

vi. The application is dismissed.