Licence Appeal Tribunal File Number: 23-009083/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:
Jin Tan Chen
Applicant
and
TD General Insurance Company
Respondent
DECISION
VICE-CHAIR: Kevin Kovalchuk
APPEARANCES:
For the Applicant: Sareena Samra, Counsel
For the Respondent: Colin Birch, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Jin Tan Chen, the applicant, was involved in an automobile accident on November 23, 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant was found to have sustained a catastrophic impairment as a result of the accident.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $4,000.00, for a catastrophic assessment proposed by Somatic Assessments & Treatment Clinic in a treatment plan/OCF-18 (“plan”) submitted March 31, 2023, (the unapproved portion of the plan)?
ii. Is the applicant entitled to $1,938.46 for medical services, submitted on a claim form (OCF-6) June 29, 2023?
iii. Is the applicant entitled to $1,872.09 for expenses of visitors, submitted on a claim form (OCF-6) February 6, 2023?
iv. Is the applicant entitled to $144.01 for expenses of visitors submitted on a claim form (OCF-6) April 27, 2023?
v. Is the applicant entitled to $928.06 for expenses of visitors, submitted on a claim form (OCF-6) May 18, 2023?
vi. Is the applicant entitled to $1,024.96 for expenses of visitors submitted on a claim form (OCF-6) June 29, 2023?
vii. Is the applicant entitled to $1,570.17 for damage to clothing submitted on a claim form (OCF-6) February 6, 2023?
viii. Is the applicant entitled to $325.18 for fuel costs submitted on a claim form (OCF-6) December 7, 2023?
ix. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
x. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant is not entitled to $4,000.00 for a catastrophic assessment proposed by Somatic Assessments & Treatment Clinic in a treatment plan/OCF-18 (“plan”) submitted March 31,2023, and denied April 14, 2023.
5I find that the applicant is not entitled to the OCF-6s in dispute (issues ii through viii above).
6As there are no overdue benefits payable, the applicant is not entitled to interest.
7The applicant is not entitled to an award pursuant to Regulation 664.
8I dismiss this application.
ANALYSIS
9As a general premise, the applicant bears the burden of proving entitlement to the benefits or amount in dispute, on a balance of probabilities. They must do so through persuasive evidence and argument.
The unapproved portion of the Treatment Plan submitted March 31, 2023, in the amount of $4,000.00, is not payable.
10I find that the unapproved portion of the plan submitted March 31, 2023, in the amount of $4,000 is not payable.
11The applicant submits that the respondent is required to pay reasonable fees for preparing an application for determination of a catastrophic impairment. The plan submitted by the applicant dated March 31, 2023, sought $14,750.81 for various catastrophic determination assessments along with documentation support, interpretation service and transportation.
12The respondent approved the majority of the plan but declined to approve Catastrophic Determination Assessments by Dr. Joseph Siu-Wah Wong in the amount of $2,000, Dr. Raymond Wong in the amount of $1,000 and Dr. Sedigheh Naisi in the amount of $1,000 for a total of $4,000.
13The respondent submits that it had already approved assessments by the aforementioned doctors at $2,000.00 each, plus HST which the respondent submits is the maximum amount payable for any one assessment under the SABS.
14A review of the plan in question as well as a letter from the respondent dated April 14, 2023, indicates that Dr. Joseph Siu-Wah Wong, Dr. Raymond Wong, and Dr. Sedigheh Naisi were indeed approved at $2,000.00 plus HST each, for Catastrophic Determination Assessments included in the plan.
15The respondent submits that s. 25(5) of the Schedule states that “an insurer shall not pay (a) more than a total of $2,000.00 plus [HST] in respect of fees and expenses for conducting any one assessment and for preparing reports in connection with it”.
16The respondent also relies upon Tetruashvili v. TTC, 2021 CanLII 134542 (ON LAT) for the proposition that an insurer is only required to pay $2,000.00 plus HST for any one assessment under s. 25(5) of the SABS.
17Although not binding on me, I find Tetruashvili to be persuasive that the additional CAT assessments proposed by Dr. Joseph Siu-Wah Wong, Dr. Raymond Wong, and Dr. Sedigheh Naisi are subject to the funding limits set out is section 25 of the Schedule.
18I find that the applicant has not met his burden of proving entitlement to the assessment costs in dispute. I therefore decline to approve the additional Catastrophic Determination Assessments by Dr. Joseph Siu-Wah Wong in the amount of $2,000, Dr. Raymond Wong in the amount of $1,000 and Dr. Sedigheh Naisi in the amount of $1,000 for a total of $4,000. I find on the balance of probabilities that the unapproved portion of the plan is not payable.
The claim form (OCF-6) dated June 29,2023, for $1,938.46 for medical services is not payable.
19The appellant has not provided the OCF-6 referred to in his materials. The respondent has however included the OCF-6 in its materials. It appears that the claim is for nursing home services in the amount of $1,938.46 for Bayshore Healthcare.
20The applicant has not provided the Tribunal with any submissions as to why this expense is reasonable and necessary except to submit that the expenses “are true and real.” I find this short statement to be unhelpful in meeting the applicant’s burden as to why these expenses are reasonable and necessary.
21I therefore decline to allow this expense as the applicant has not met his onus of showing on a balance of probabilities that this expense is reasonable and necessary.
Expenses of Visitors (issues iii, iv, v, vi and viii) are not payable.
22Section 22(1) of the SABS provides that if an insured person sustains an impairment as a result of an accident, the insurer shall pay for reasonable and necessary expenses incurred by the following persons as a result of the accident in visiting the insured person during his or her treatment or recovery: the spouse, children, grandchildren, parents, grandparents, brothers and sisters of the injured person.
23The applicant has submitted OCF-6s to the respondent claiming for reimbursement of visitor expenses. These OCF-6s were not included in the applicant’s submissions but rather, were included in the respondent’s submissions. The first is dated February 6, 2023, and claims visitor expenses totalling $1,872.09, itemized as $669.40 for parking, $594.00 for transportation, $539.57 for gas and $24.12 for meals. The second OCF-6 dated April 14,2023 claimed $144.01 for visitor expenses itemized as $133.84 for transportation and $10.17 for a meal. The third OCF-6 is dated May 18, 2023, and claims $928.06 for visitor expenses, broken down as $897.36 for fuel and $30.70 for meals. This OCF-6 contains a notation “daughter visited father”. The fourth OCF-6 dated June 29, 2022, claimed $1,024.96 for visitor expenses namely $17.50 for parking, $28.91 for meals and $983.55 for gas/fuel. The fifth OCF-6 dated November 14, 2023, claimed visitor expenses in the amount of $325.18 all of which was for gas/fuel.
24Attached to the OCF-6s were receipts for parking, Presto tickets, fuel, food, and Uber transportation all of which were vague. No explanation was provided with the receipts except for the one notation referred to in the paragraph above.
25The respondent submits that the CCRO indicates at paragraph 15(i)(g) that the parties agreed that they shall exchange the following by no later than 45 calendar days from the case conference: “the receipts to support OCF-6s in dispute with an explanation of each OCF-6 in dispute”. The respondent submits that despite the CCRO no further information or particulars have been provided by the applicant with respect to the visitor’s expenses in dispute.
26The applicant has not provided the Tribunal with any submissions as to why these expenses are reasonable and necessary except to submit that the expenses “are true and real.” I find this short statement to be unhelpful in meeting the applicant’s burden as to why these expenses are reasonable and necessary.
27I therefore find that the applicant has not met his onus of showing on a balance of probabilities that these expenses are reasonable and necessary.
The claim form (OCF-6) submitted on February 6, 2023, for $1,570.17 for damage to clothing is not payable.
28Section 24 of the Schedule states that an insurer is liable to pay for all reasonable expenses incurred by or on behalf of an insured person in repairing or replacing clothing worn by the insured person that was damaged or lost as a result of the accident.
29The OCF-6 submitted on February 6, 2023, claimed, amongst other expenses, a “damaged” overcoat in the amount of $1,130.60 as well as “damaged” shoes in the amount of $439.57 for a total of $1,570.17. The OCF-6 was not included with the applicant’s submissions but rather was included in the respondent’s submissions.
30Attached to the OCF-6 was a receipt for an overcoat dated 7/13/21 from Holt Renfrew Yorkdale, in the amount of $1,130.60 as well as a receipt for sneakers dated 17/12/19 from Holt Renfrew Yorkdale, in the amount of $429.57. I note that neither receipt has a customer name on it, only an illegible customer ID number.
31The applicant has not provided any evidence that he incurred expenses to repair or replace the clothing itemised in the receipts from Holt Renfrew. Nor has the applicant provided any evidence that he was wearing the clothing at the time of the accident.
32In addition, the applicant has made no submissions with respect to his claim for damaged clothing.
33The respondent relies upon the Tribunals decision in Felipe v Chubb, 2023 CanLII 96317 (ON LAT) that in order for a claim for damaged clothing to be successful an applicant must provide evidence which establishes that 1) they owned the clothing at the time of the accident, and 2) they replaced the clothing as a result of it being damaged in the accident.
34Although not bound by the decision in Felipe, I find it to be persuasive.
35I find that the applicant has not provided sufficient evidence that he owned the clothing at the time of the accident. I further find that the applicant has not provided evidence that he incurred expenses to replace or repair the clothing claimed in the OCF-6. Therefore, I find on a balance of probabilities, that the applicant is not entitled to expenses claimed for damage to clothing.
No interest is payable.
36As there are no overdue benefits payable the applicant is not entitled to interest.
The applicant is not entitled to an award pursuant to Regulation 664.
37Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits the Tribunal may award a lump sum of up to 50 per cent of the amount to which the person was entitled.
38I find that the applicant is not entitled to an award. It is well-settled that in order for an award to be made, the respondent’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate and the evidentiary onus is on the applicant to demonstrate this.
39The applicant submits that the respondent has not acted in good faith and that a special award is called for “in order to investigate the reasonableness of the denials and provide deterrence to Insurers in acting in a high-handed manner.”
40The respondent submits that it advised the applicant repeatedly that it required more information and evidence with respect to the issues in dispute, which evidence was not provided.
41I find the applicant failed to meet his burden of proving entitlement to any of the benefits in dispute, and therefore the respondent did not unreasonably withhold payment of benefits to the applicant. I find that the applicant has not met his onus to demonstrate, on a balance of probabilities that, the respondent acted in an excessive, imprudent, stubborn, inflexible, unyielding, or immoderate way and therefore the applicant is not entitled to an award.
ORDER
42As a result of the above and on a balance of probabilities I find that:
i. The applicant is not entitled to $4,000 for a catastrophic assessment proposed by Somatic Assessments & Treatment Clinic in a treatment plan submitted March 31, 2023,
ii. The applicant is not entitled to the OCF-6s in dispute (issues ii through viii).
iii. As there are no overdue benefits payments the applicant is not entitled to interest.
iv. The applicant is not entitled to an award pursuant to Regulation 664.
43The application is dismissed.
Released: July 25, 2025
Kevin Kovalchuk
Vice-Chair