Sharif Jeylani v. Belair Insurance Company Inc., 2025 CanLII 81425

Citation: Jeylani v. Belair Insurance Company Inc., 2025 CanLII 81425

Licence Appeal Tribunal File Number: 24-010735/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:

Sharif Jeylani

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

PANEL:

Trina Morissette, Vice-Chair

Tami Cogan, Adjudicator

APPEARANCES:

For the Applicant:

Mobina Khan, Counsel

For the Respondent:

Eluxmeenah Rishihesan, Counsel

Interpreter:

Fowzia Ahmed, Somali Language

Heard by Videoconference:

July 8, 2025

OVERVIEW

1Sharif Jeylani, the applicant, was involved in an automobile accident on April 30, 2024, 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, Belair Insurance Company Inc., 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 of $185.00 per week from May 31, 2024, to present?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

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

4The applicant is not entitled to interest or an award under s. 10 of Reg 664.

5The application is dismissed.

ANALYSIS

Non-Earner Benefit (“NEB”)

6We find the applicant is not entitled to a NEB for the following reasons.

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.”

8The test for an NEB is set out in the Court of Appeal decision of Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”), which generally focuses on a comparison of the applicant’s pre- and post-accident activities.

i. A comparison between the applicant’s activities and life circumstances before and after the accident.

ii. Assessing the applicant’s activities and life circumstances requires more than a snapshot in time but involves assessing it over a reasonable period prior to the accident and the duration after is case specific.

iii. In proving “substantially all” requires looking at all the applicant’s pre-accident activities and life circumstances but greater emphasis can be placed on the ones that matter the most to the applicant.

iv. “Continuously prevents” means that it’s of a nature, extent or degree that is and remains uninterrupted.

v. “Engaging in” refers to a qualitative perspective – going through the motions may not be “engaging in,” and if doing the activity is sufficiently restricted then it’s not “engaging in”.

vi. If pain is a primary factor that prevents the applicant from engaging in their pre-accident activities, the question is not whether the applicant can physically do the acts, but are they practically prevented from engaging in those activities?

9The applicant submits that as a result of the accident he suffers from physical and psychological symptoms and cannot substantially carry on a normal life. The applicant relies on the Disability Certificate (OCF-3) dated May 18, 2024, completed by Vini Panchal, physiotherapist, as well as the clinical notes and records of his family physician, Dr. Rajiv Mohan.

10The respondent submits that the applicant had limitations before the accident and that there is little difference in his abilities post-accident. The respondent relies on the Insurer’s General Practitioner Examination report of Dr. Ijaz Chaudhry, general practitioner, dated January 2, 2025, in which he opined that from a musculoskeletal perspective, the applicant does not have a substantial inability to perform his pre-accident activities of daily living. Further, the respondent relies on the Insurer’s Occupational Therapy In-home Examination for NEB report of Ms. Angela Bertolo, occupational therapist, dated January 20, 2025.

11We note that the OCF-3 lists injuries and sequelae which are both physical and psychological including: reaction to severe stress and adjustment disorders, anxiety disorder (unspecified), malaise and fatigue, symptoms and signs involving emotional state, other specified anxiety disorders and recurrent depressive disorder. We place little weight on this document because there is no reference as to who made the psychological diagnoses listed, a physiotherapist is not qualified to make these conclusions, and the conclusions reached provide little context or details. For example, at Part 6 of the document it is indicated that the applicant suffers a complete inability to carry on a normal life, however no further explanation is given. There is no discussion of how the applicant’s injuries impair him. Also, at Part 8, it is indicated that prior to the accident the applicant had a disease, condition or injury that affected his ability to perform the activities listed in Part 6, however there are no further details provided.

12In order to make a meaningful comparison between the applicant’s activities and life circumstances before and after the accident, we considered the applicant’s testimony as follows:

i. We heard evidence that before the accident he stayed at home, except for Fridays, when he would go out to see a friend for about half an hour, which he no longer does post-accident.

ii. We also heard that the applicant would attend mosque before the accident, but now he prays at home. The applicant’s testimony did not include how often he attended mosque, or whether it was a significantly important activity for him.

iii. The applicant testified that before the accident his wife took care of the household chores, which she continues to do. We did not hear of any household chores for which the applicant was responsible before the accident, aside from a general statement that usually the wives take care of “inside the home” and the husbands take care of the outside.

iv. Since the accident, the applicant’s wife sometimes helps him shower and get dressed.

v. The applicant stated that he used to go outside once or twice a week, but no longer does.

vi. Before the accident he would lay in bed, eat and watch television, but now he does not eat as much and cannot lay because he is in pain.

vii. The applicant testified that he takes medication for anxiety and sleep but could not identify this medication and could not provide a timeframe for when the medications were prescribed. He testified that one of these medications was prescribed to him just last week, but he could not confirm which one.

viii. He took pain medication before the accident and continues to be in pain daily.

ix. Pre-accident he suffered from stress and headaches, which he also reported to his physician on May 8, 2024, one week after the accident.

13While we have considered the applicant’s testimony, we are not persuaded that he has a complete inability to carry on a normal life. We place little weight on the applicant’s evidence as he has not provided corroborating evidence, to substantiate how his impairments prevent him for continuing with these activities, or even if his inability to engage in them is caused by the subject accident.

14We also considered the medical evidence of the family physician. The applicant points to a visit with his family physician on May 8, 2024, a week following the accident, where it is noted that the applicant complained of:

Pt has neck and upper back pain now

Feeling anxiety/stress, reports headaches

Insomnia+

No radiating pain

15The clinical notes and records of the applicant’s family physician, Dr. Rajiv Mohan, submitted into evidence, support that Dr. Mohan prescribed physiotherapy and noted “see rx”. Although the applicant did not point us to these prescriptions, we note that a list of eight medications prescribed on that day are related to his pre-existing heart condition and sequelae and were refills of medications the applicant was already taking as evidenced by his visit on November 4, 2022. Therefore, we have not been directed to evidence that supports the applicant received prescriptions in response to the applicant’s accident-related complaints.

16The applicant made submissions that he also suffers from psychological symptoms that result in his substantial inability to carry on a normal life. However, the applicant did not lead evidence of any psychological impairment or treatment and has not directed us to evidence on how his psychological symptoms have prevented him from engaging in any of his pre-accident activities.

17We acknowledge that the applicant’s pain complaints are documented in the insurer’s assessment reports of Dr. Chaudhry and Ms. Bertolo. The applicant reported to Dr. Chaudhry that he has relief of his pain with medication. Dr. Chaudhry opined that the applicant’s uncomplicated soft tissue injuries do not cause a substantial inability to preform his pre-accident activities of daily living. The applicant reported to Ms. Bartolo that after a previous accident in 2018 his typical day involved lying in bed, eating, occasionally watching sports and television. Also, that since his 2018 motor vehicle accident and heart attack in 2019 that “most the time I’m home…Not doing anything”.

18The applicant submits he is unable to carry on with normal activities of daily living, however, we have not heard sufficient evidence of the applicant’s pre-accident activities to make a meaningful comparison pursuant to Heath. The evidence we heard supports that there has been substantially little change between the applicant’s pre-accident activities and his post-accident activities.

19The applicant has therefore not proven on a balance of probabilities that he suffers a complete inability to carry on a normal life as a result of and within 104-weeks after the accident. Therefore, we find he is not entitled to NEB.

Interest

20As there is no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Award

21Under s. 10 of Reg. 664, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits.

22The applicant submits, without specificity, that the respondent has unreasonably denied the payment of benefits and has caused unnecessary financial hardship to a vulnerable person.

23We find the applicant has not met the burden of proof to support the respondent has acted excessively, imprudently, stubbornly, inflexibly, unyielding or immoderate. No award is payable.

CONCLUSION AND ORDER

24For the reasons provided above, we find the following:

i. The applicant is not entitled to NEB.

ii. No interest or award are owing.

iii. The application is dismissed.