Licence Appeal Tribunal File Number: 23-003662/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:
Caryn Phillips
Applicant
and
Royal & Sun Alliance Insurance Company of Canada
Respondent
DECISION AND ORDER
ADJUDICATOR:
Samia Makhamra
APPEARANCES:
For the Applicant:
Manisa Kafai, Counsel
For the Respondent:
Geoffrey Keating, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Caryn Phillips, the applicant, was involved in an automobile accident on January 20, 2020, 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, Royal & Sun Alliance 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 a non-earner benefit (“NEB”) of $185.00 per week from December 19, 2020, to October 10, 2022?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not established that she suffers a complete inability to carry on a normal life. Accordingly, she is not entitled to an NEB of $185.00 per week from December 19, 2020, to October 10, 2022.
4The respondent is not liable to pay an award.
5The applicant is not entitled to interest as there are no overdue benefits.
ANALYSIS
6Based on the submissions and evidence, I find that the applicant is not entitled to an NEB.
7Section 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 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 for Ontario 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.
8The applicant raises two arguments with respect to this claim. First, she submits that the respondent’s notice of denial, dated November 30, 2020, is not compliant with the Schedule, which means she is entitled to payment of the NEB. Second, she submits she meets the disability test for an NEB. I discuss both issues in the next paragraphs.
9The applicant submits that the respondent’s notice of denial with respect to the NEB was deficient in that it did not provide medical and any other reasons for the denial. Instead, the letter referred to the assessors’ reports without citing medically related or medically derived conclusions, diagnoses, or reasons.
10The respondent disagrees. It argues the denial cites the assessors’ conclusions, which is a relevant portion of the reports and something the Tribunal has accepted as compliant with the Schedule. In its position, the respondent relies on Tribunal decisions in Manosingham v. Commonwell Mutual Insurance, 2023 CanLII 84362 (ON LAT) and He v. Aviva Insurance Company of Canada, 2022 CanLII 33229 (ON LAT).
11I accept that the respondent’s denial meets the notice requirements as required in the Schedule. The letter of denial of November 30, 2020 states as follows:
We are in receipt of the Independent Medical Assessment Reports of Dr. Marchuk and Dr. Saghatoleslami of HVE Healthcare Assessments dated August 6, 2020. It appears that they were not sent to you (clerical error) and your payments for Non-Earner Benefits continued. The independent medical reports of both assessors indicate that you do not suffer a complete inability to carry on a normal life—your entitlement to a Non-Earner Benefits is therefore denied effective DECEMBER 19, 2020.
12In reviewing the respondent’s denial, I find no deficiency in the reasons given. Section 36(4)(b) of the Schedule requires the insurer to provide “medical and any other reasons” why it believes the insured is not entitled to the specified benefit. While concise, the respondent’s reasons were clear and straightforward. The respondent referred to the relevant disability test and the opinions of the assessors that formed the basis of the denial. The respondent then enclosed the assessors’ reports, which are detailed and set out the reasons why they believed the applicant did not suffer a complete inability to carry on a normal life.
13I note that in reply submissions the applicant raises a new argument with respect to her entitlement to an NEB. She submits that the respondent also failed to comply with the requirements of s.37(5) and s.37(6) of the Schedule, in that it failed to provide the assessors’ reports and its notice within 10 business days from receiving the reports. On procedural fairness, I will not allow this argument because the applicant is raising it in reply submissions which means the respondent did not have an opportunity to respond. The appropriate time to raise this concern was during initial submissions, which was not done.
14With respect to substantive entitlement, the applicant relies upon the opinions of Dr. Marjan Saghatoleslami, psychologist, Carolina Vintu, psychotherapist, and Dr. Felix Yaroshevsky, psychiatrist, to support her entitlement to an NEB.
15She saw Dr. Saghatoleslami for a s.44 insurer’s examination (“IE”) psychological assessment on July 23, 2021. In the assessment report, Dr. Saghatoleslami diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood. Despite his conclusion that she does not meet the disability test for an NEB, the applicant submits that Dr. Saghatoleslami’s notes of the assessment indicate that she does indeed suffer a complete inability to carry on a normal life. For example, she is not able to perform household chores free of pain, she is no longer able to do outdoor chores, and, at times, nothing is done due to pain. Therefore, while she disagrees with his conclusion that she did not meet the disability test for an NEB, she submits that his notes are evidence that she is entitled to this benefit.
16The applicant saw Ms. Vintu for a psychological assessment on March 23 and April 23, 2021. The applicant reported increased alcohol consumption and worsened depression since the accident. Ms. Vintu diagnosed the applicant with specific phobia, situational type: vehicular, acute adjustment disorder with mixed anxiety and depressed mood, and somatic symptom disorder with predominant pain: severe.
17The applicant saw Dr. Yaroshevsky for a psychiatric assessment on December 19, 2022. Dr. Yaroshevsky diagnosed the applicant with general anxiety disorder. He opined that, although the applicant has had a history of chronic moodiness following her tragic loss, her accident triggered a more intense bout of depression. He added the applicant’s depression is characterized by sleep and appetite disturbance and passive, dependent, and indecisive behaviour, as she reported feeling useless, unproductive, and quite lonely since her accident. He reported the applicant had developed extreme anxiety and is easily irritated, and that the accident seemed to have assaulted her defensive structure with serious consequences, resulting in severe functional decompensation.
18The respondent disagrees. In short, the respondent relies on the opinions of the IE assessors who concluded that the applicant did not meet the disability test for an NEB.
19On the submissions and evidence, I find that the applicant does not meet the disability test for an NEB. I rely on the opinion of the IE assessor who examined the applicant, turned his mind to her pre- and post-accident life, assessed her abilities accordingly, and, ultimately, concluded that she did not meet the test for an NEB.
20Specifically, while Dr. Saghatoleslami noted the applicant’s challenges in participating in post-accident activities, he concluded that she did not suffer a complete inability to carry on a normal life. The report noted that the applicant’s pre-accident activities of daily living included performing personal care activities, taking care of all household chores and outdoor maintenance tasks, and providing caregiving to her father, partner, niece, and nephew. Pre-accident social and leisure activities were limited to going to the cottage and watching movies. Regarding post-accident activities, the report indicated that the applicant continued to be independent with respect to her personal care tasks, aside from hairstyling and makeup application. She continued to try to complete all household chores, although sometimes nothing would get done. Despite this, she would still engage in housecleaning and caring for her niece and father, but was no longer performing outdoor chores.
21In addition, neither Ms. Vintu’s report nor Dr. Yaroshevsky’s report concluded that the applicant meets the test for entitlement to an NEB. Dr. Saghatoleslami, the only expert to directly answer the question of entitlement to an NEB, concluded that the applicant had not suffered a complete inability to carry on a normal life as a result of the subject accident. Accordingly, I find that the applicant did not demonstrate that she has suffered a complete inability to carry on a normal life as result of the accident in question.
The insurer is not liable to pay an award
22The applicant is seeking 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.
23In examining whether an insurer’s conduct in withholding or denying a benefit warrants an award, the case law is well established that the insurer’s behaviour must be seen as “excessive, imprudent, stubborn, inflexible, unyielding, or immoderate”.
24I do not find that an award is payable in this case, and there are no benefits owed to the applicant.
Interest
25As there is no overdue payment of benefits, no interest is owed.
ORDER
26Based on the above, I order the following:
The applicant is not entitled to a non-earner benefit of $185.00 per week from December 19, 2020 to October 10, 2022.
The respondent is not liable to pay an award.
The applicant is not entitled to interest as there are no overdue benefits.
Released: August 8, 2025
Samia Makhamra
Adjudicator