McIntyre v. Definity Insurance Company, 2025 CanLII 84251

Licence Appeal Tribunal

Citation: McIntyre v. Definity Insurance Company, 2025 ONLAT 23-007925/AABS

Licence Appeal Tribunal File Number: 23-007925/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:

Owayne McIntyre

Applicant

and

Definity Insurance Company

Respondent

DECISION

VICE-CHAIR: Craig Mazerolle

APPEARANCES:

For the Applicant: Tina Radimisis, Counsel

For the Respondent: Ainsley Shannon, Counsel

HEARD: By way of Written Submissions

OVERVIEW

1Owayne Mcintyre, the applicant, was involved in an automobile accident on August 1, 2019, 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, Definity Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

ISSUES

2As the respondent withdrew the preliminary issue involving s. 44 of the Schedule, the following preliminary issue and substantive issues remain:

Preliminary Issue

i. Is the applicant barred from proceeding to a hearing for the following benefits:

1. $1,782.00 for functional capacity evaluation (“FCE”);
2. $2,200.00 for a driving rehabilitation assessment;
3. $2,625.00 for chiropractic and massage services (plan submitted on August 21, 2020); and,
4. An income replacement benefit (“IRB”)

because the applicant failed to dispute their denial within the 2-year limitation period?

Substantive Issues

i. Is the applicant entitled to attendant care benefits (“ACB”) in the amount of $1,110.37 per month from August 1, 2019 to ongoing?

ii. Is the applicant entitled to an IRB in the amount of $400.00 per week from August 9, 2019 to ongoing?

iii. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by Dr. Igor Wilderman in a treatment plan submitted on July 9, 2021?

iv. Is the applicant entitled to $2,450.00 for chiropractic and massage services, proposed by Robert Billow of 2245435 Ontario Inc. in a treatment plan submitted on December 1, 2022?

v. Is the applicant entitled to $1,161.94 for assistive devices, proposed by Robert Billow of 2245435 Ontario Inc. in a treatment plan submitted on June 8, 2021?

vi. Is the applicant entitled to $1,782.00 for an FCE, proposed by Dr. James Fung, chiropractor of 2245436 Ontario Inc. in a treatment plan submitted on March 2, 2021?

vii. Is the applicant entitled to $2,200.00 for a driving rehabilitation assessment, proposed by Dr. Mandeep Kaur Singh of 2245435 Ontario Inc. in a treatment plan submitted on April 20, 2021?

viii. Is the applicant entitled to $2,625.00 for chiropractic and massage services, proposed by Robert Billow, chiropractor of Knead Wellness in a treatment plan submitted on August 21, 2020?

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?

3The applicant also asked for “special damages” at the end of his initial written submissions.

RESULT

4The applicant is barred from proceeding to a hearing for the IRB and the treatment plans for an FCE, a driving rehabilitation assessment, and chiropractic and massage services (plan submitted August 21, 2020), pursuant to s. 55(1) of the Schedule.

5The applicant has not established entitlement to an ACB at a rate of $1,110.37 per month.

6The applicant is not entitled to the treatment plans for a chronic pain assessment, chiropractic and massage services (plan submitted December 1, 2022), and assistive devices.

7The applicant is not entitled to interest, an award, or special damages.

ANALYSIS

Preliminary Issue – Limitation Periods

8The applicant has not established that I should exercise my discretion to extend the limitation periods for the four denials identified in the preliminary issue.

9Section 56 of the Schedule requires an applicant to commence a proceeding “in respect of a benefit within two years after the insurer’s refusal to pay the amount claimed.”

10The applicant concedes that the denials of the four benefits identified by the respondent were not appealed within the two-year limitation period set out in s. 56. However, he asks the Tribunal to use its discretion under s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c.12, Sch. G (“LAT Act”) to extend the limitation periods for these benefits. The respondent opposes this request.

11Section 7 of the LAT Act allows the Tribunal to extend a time limit if there are “reasonable grounds” for doing so. Following the Divisional Court’s guidance in Manuel v. Registrar, 2012 ONSC 1492, the factors that the Tribunal considers on a request for an extension of time are:

i. The existence of a bona fide intention to appeal within the appeal period;

ii. The length of the delay;

iii. Prejudice to the other party; and

iv. The merits of the appeal.

12Manuel directs a holistic analysis of the factors, as no single factor is determinative. Or, as the Tribunal noted at paragraph 8 of 18-001196 v. Certas Home and Auto Insurance Company, 2018 CanLII 141018 (ON LAT), the four factors are “not strict elements that must each be met in order to grant an extension of time”. The factors are subject to a broader rule that an extension should not be granted unless the “justice of the case” requires it. The applicant has the onus to show “reasonable grounds” for granting an extension.

13I find the Manuel factors weigh against granting the applicant’s request for each of the four denials.

14Common to each of the four benefits at issue is a dispute over what the correct “length of the delay” is. First, the applicant claims that some of the denials are subject to the 183-day limitation period freeze under s. 2 of Reg. 73/20, a regulation enacted under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17. I accept the applicant’s position that Reg. 73/20 applies to the IRB denial and the denial of the chiropractic and massage services treatment plan, because these denials fell during this limitation period freeze.

15Second, the parties both note that the four benefits did not form part of the applicant’s initial application, but rather they were added to the dispute prior to the case conference. The applicant did not provide a firm date for when his request to add the issues was first made, but the respondent (without evidence) has suggested that it took place on December 7, 2023. The applicant did not contest this date in his reply, so I have accepted December 7, 2023 as the date when the four denials were first disputed at the Tribunal.

Income Replacement Benefit

16The IRB was denied on September 27, 2019. With the addition of the Reg. 73/20 freeze, the limitation period for this benefit ended on March 29, 2022. Since this benefit was added to the dispute on December 7, 2023, the delay is a total of 618 days.

17According to the applicant, while this delay “may border on problematic”, the respondent is unable to show prejudice from his actions. It has continued to adjust the file, and disallowing him from pursuing this benefit would cause him significant prejudice. The applicant also claims that the merits of the case lean in favour of granting the relief, as he was only able to return to work for a short period after the accident.

18The respondent challenges the applicant’s assertion about prejudice, claiming that it is “particularly acute” for the IRB. As the applicant informed the respondent that he had returned to work after the accident, it arranged for insurer’s examinations (“IE”) to assess entitlement to a non-earner benefit.

19I find the Manuel factors weigh against granting the applicant an extension. Aside from the fact that the applicant has not provided any compelling explanation to show that he intended to appeal this denial by March 29, 2022, I find the length of the delay greatly weighs against granting this relief. The over 20-month delay is not only excessive, but it led to significant prejudice against the respondent by removing its ability to assess the applicant’s employment capacity in a timely fashion. This inability to set up IEs, request documents, etc. in a contemporaneous manner is particularly prejudicial in the context of an IRB, as the entitlement standard for this benefit changes at the 104-week mark post-accident. While the applicant may make some general statements about the respondent’s ongoing adjustment of the file (as well as his contention that the respondent should have been more proactive in arranging an IE), I find the applicant’s lack of timely notice that this denial would be disputed is highly prejudicial.

20Finally, I accept that the applicant has presented some arguments that suggest there is merit to his appeal. However, in light of the heavy weight of the other three factors and in considering the justice of the case, I find it is not appropriate to use my discretion to grant relief under s. 7.

Chiropractic and Massage Services

21The chiropractic and massage services treatment plan (submitted on August 21, 2020) was denied by the respondent on September 10, 2020. With the addition of five days from the Reg. 73/20 freeze, this limitation period ended on September 15, 2022. The delay is, therefore, 448 days.

22In addition to many of the same arguments detailed above, the applicant notes that the respondent’s denial of this plan relied on the Minor Injury Guideline. Since he was removed from this funding and treatment limit on March 31, 2021, the applicant submits that “there is no reason as to why the denial should have been upheld, if not at least re-evaluated”.

23The respondent again contends that the delay was excessive and prejudicial.

24For much the same reasons as set out above for the IRB, I find the applicant has not established that I should use the discretion afforded to me under s. 7. Though not quite as lengthy as for the IRB, this almost 15-month delay is still highly prejudicial to the respondent. Parties have the right to understand what case they need to meet, and the inability to assess an insured person’s entitlement (or at least start collecting documents) in a timely manner is highly prejudicial to this right.

25By considering the Manuel factors and the justice of the case, I decline to exercise my discretion to extend this time limit.

Functional Capacity Evaluation and Driving Rehabilitation Assessment

26The FCE and driving rehabilitation assessment treatment plans were denied on March 23, 2021 and May 5, 2021, respectively. The Reg. 73/20 freeze does not apply to these denials, so the limitations periods ended on March 23, 2023 and May 5, 2023.

27The applicant relies on many of the same arguments, adding that there is merit to all the disputed treatment plans before the Tribunal. However, once again, I find there is no compelling explanation to show that there was an intention to appeal the denials within the limitation periods, and the resulting delays are prejudicial. I accept that these delays are not as extreme as the ones for the IRB and the chiropractic and massage services, but, even for the driving rehabilitation assessment, the gap between May 5, 2023 and December 7, 2023 is over seven months. The applicant highlighted cases where delays around 60 days were not found to be lengthy, but the delay for these treatment plans go well beyond the scope of these prior cases.

28Therefore, I again find the applicant has not demonstrated that I should engage my discretion under s. 7 of the LAT Act to extend these two limitation periods.

29I also note that, in his reply submissions, the applicant contends that the respondent erred by stating that he was represented by counsel during a period when he was represented by a paralegal. The applicant does not provide a compelling explanation for why this error impacts the limitation period analysis.

30Taken together, I find the applicant did not dispute the IRB and the treatment plans for an FCE, a driving rehabilitation assessment, and chiropractic and massage services in compliance with the limitations period set out in s. 56 of the Schedule. As such, the applicant is barred from proceeding to a hearing for these benefits, pursuant to s. 55(1) of the Schedule.

Attendant Care Benefits

31I find the applicant has not established entitlement to an ACB at a rate of $1,110.37 per month.

32Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for an ACB must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”). The applicant has the onus to demonstrate entitlement on a balance of probabilities.

33Despite its centrality to the ACB analysis, neither the applicant’s nor the respondent’s submissions include a copy of the disputed Form-1. Instead, the applicant’s central piece of evidence for this benefit is the Assessment of Attendant Care Needs Report from occupational therapist Arash Sasani (dated May 12, 2021). The report states that there is a Form-1 “enclosed”, but this document has not been provided to me.

34Rather, Mr. Sasani’s report lists the total amounts recommended for each of the three Parts of the Form-1. There is no breakdown of these overall amounts into the separate types of services found under each Part. For instance, though Mr. Sasani appears to recommend separate amounts of time for meal preparation and mobility, there is only a total amount of time provided for Part 1 of the Form-1 [emphasis in original]: “a minimum of 10.5 hours of assistance per week with these tasks including mobility and meal preparation”. The applicant’s initial submissions provide much of the same information about these recommendations, i.e., there is no breakdown of the services and amounts included under each Part.

35The respondent does include some additional information about these recommendations in its written submissions, but aside from the fact that it does not have the onus to demonstrate entitlement these submissions are not supported by documentary evidence.

36The invoices from the applicant’s PSW, Joyce Kerr, add further uncertainty to this analysis. Included with the respondent’s submissions, these records list the PSW as completing two types of Part 2 services, i.e., “ensures comfort, safety and security” in the bedroom, and “changes applicant’s bedding, makes bed, cleans bedroom, including Hoyer lifts, overhead bars, bedside tables”. Yet, the report from Mr. Sasani only appears to recommend time for the former service. Additionally, the respondent highlights that the invoices from Ms. Kerr do not include any time spent performing services from Part 3, despite Mr. Sasani’s recommendation for 2.5 hours per week under this heading.

37Without the specific amounts of time assigned to each part of the Form-1, I find I cannot assess whether these recommendations are reasonable and necessary. Put another way, by not providing this basic information about Mr. Sasani’s recommendation for attendant care services in the amount of $1,110.37 per month, I find the applicant has not met his burden to demonstrate entitlement to the ACB for this amount.

38I do note that much of the applicant’s arguments about the ACB are focused on his concerns about the respondent’s adjusting practices, namely, its scheduling of the IEs. Though these allegations could potentially engage the “deemed incurred” provision under s. 3(8) of the Schedule, the applicant must still demonstrate that the requested attendant care services are reasonable and necessary. Once again, without some indication of what specific services and amounts are being requested, the applicant has not met this burden.

39For these reasons, I find the applicant has not established, on a balance of probabilities, entitlement to an ACB at a rate of $1,110.37 per month.

40To receive payment for a treatment and assessment plan under s. 15 and s. 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

41With several of the plans barred from proceeding under s. 55(1), only the following treatment plans remain in dispute:

i. $2,460.00 for a chronic pain assessment; ii. $2,450.00 for chiropractic and massage services (plan submitted December 1, 2022); and, iii. $1,161.94 for assistive devices.

42The applicant has not established entitlement, on a balance of probabilities, to these three plans.

Chronic Pain Assessment

43I find the applicant has not established entitlement to the treatment plan for a chronic pain assessment on a balance of probabilities.

44In support of all the disputed plans, the applicant broadly asserts that the proposed treatments and assessments have been “specifically tailored to meet [his] individual goals and treat his collision-related impairments.” There is also a general submission that his accident-related impairments have “made it impossible for him to return to his pre-collision capabilities”, adding that a lack of treatment will leave him “trapped in a cycle of physical and psychological pain.” By pointing to the medical evidence summarized in the first half of his initial submissions (and by citing several Tribunal cases), the applicant submits that all the disputed medical benefits are reasonable and necessary.

45I find these submissions do not draw any specific connections to the medical evidence that is summarized in the first half of his submissions, nor do they provide detailed explanations for why each individual plan is reasonable and necessary.

46For instance, in the case of this chronic pain assessment, I note that the applicant’s initial submissions include two records from Dr. Albert Wong, family medicine physician. In these records from 2023 and 2024, Dr. Wong diagnoses the applicant with chronic pain and chronic pain syndrome. With these diagnoses in hand, there is no indication about why the chronic pain assessment in dispute is needed. While I accept that there could be potential reasons for a comprehensive assessment (e.g., charting a course for treatment, re-evaluating prior diagnoses, etc.), the applicant has the onus to detail these reasons at first instance. He is also expected to make explicit references to the evidence to show why this treatment plan meets the entitlement standard. I find the applicant has not met this burden.

47I also note that the applicant has not directed my attention to a copy of this treatment plan.

48Finally, as with the other plans below, I find the applicant’s case law does not help him to meet his evidentiary burden. Aside from the fact that I am not bound by the decisions of my fellow adjudicators, the analysis needed to determine entitlement to a treatment plan is highly fact specific. There is little assistance that Tribunal case law can provide a decision-maker when faced with a disputed medical benefit, even if prior circumstances share some similarities with the present case.

49As such, I find the applicant has not established entitlement to the chronic pain assessment treatment plan on a balance of probabilities.

Chiropractic and Massage Services

50I find the applicant has not established entitlement to the chiropractic and massage services treatment plan (submitted on December 1, 2022) on a balance of probabilities.

51I again find the applicant’s submissions do not draw specific connections to the medical evidence to show why this particular plan is reasonable and necessary. There is a summary of the evidence in the first half of his submissions, but there are few connections drawn between this summary and the specific treatment plans in dispute. The applicant has the onus to establish these connections at first instance, and I find he has not met this burden.

52Also, there is no explanation provided for why chiropractic and massage services are needed, as the records summarized in his submissions appear to focus on the efficacy of physiotherapy (e.g., medical report from Dr. Wong dated November 25, 2023). In fact, aside from listing the issues in dispute, there is no explicit reference to massage services in his initial written submissions.

53Finally, I note that the applicant has not pointed me to a copy of this plan.

54As such, I find the applicant has not established entitlement to this chiropractic and massage services treatment plan on a balance of probabilities.

Assistive Devices

55I find the applicant has not provided specific details and arguments about the assistive devices treatment plan to demonstrate entitlement on a balance of probabilities.

56As above, the applicant has not provided specific arguments to show why this treatment plan is reasonable and necessary to address his accident-related impairments. This lack of specific arguments and pinpoint references to the evidence is especially important for this plan, as a request for assistive devices necessarily involves funding for different items with presumably different uses. By not specifying how these different items will each help with his recovery, I find the applicant has not met the entitlement standard for this plan.

57I again note that the applicant has not directed my attention to a copy of this treatment plan. This OCF-18 is especially important to the analysis, as I am not clear on what specific devices the applicant is seeking to purchase.

58Taken together, I find the applicant has not met his burden to demonstrate entitlement to any of the remaining, disputed treatment plans on a balance of probabilities.

Interest

59Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. With no payments owing, the applicant is not entitled to interest.

Award and Special Damages

60The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50% of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. With no payments owing, there is no basis for an award.

61The applicant also briefly claims that the respondent’s “conduct gives rise to a claim for special damages”. I was not pointed to any arguments or legal authorities to show that the Tribunal has the jurisdiction to grant such a remedy.

ORDER

62For the above reasons, I make the following orders:

i. The applicant is barred from proceeding to a hearing for the IRB and the treatment plans for an FCE, a driving rehabilitation assessment, and chiropractic and massage services (plan submitted August 21, 2020), pursuant to s. 55(1) of the Schedule;

ii. The applicant is not entitled to an ACB at a rate of $1,110.37 per month;

iii. The applicant is not entitled to the treatment plans for a chronic pain assessment, chiropractic and massage services (plan submitted December 1, 2022), and assistive devices;

iv. The applicant is not entitled to interest, an award, or special damages; and,

v. The application is dismissed.