Citation: Mihele v. Allstate Insurance Company of Canada, 2025 ONLAT 23-013357/AABS

Licence Appeal Tribunal File Number: 23-013357/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:

Adrian Mihele

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Lisa Holland

APPEARANCES:

For the Applicant:

Gerald Sternberg, Counsel

For the Respondent:

Jessica Telfer, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Adrian Mihele, the applicant, was involved in an automobile accident on October 1, 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, Allstate Insurance Company, 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 $4,630.00 for medical services, proposed by Back in Action, in a treatment plan/OCF-18 (“plan”) dated August 20, 2022?

ii. Is the applicant entitled to $2,200.00 for other goods and services, proposed by Back in Action, in a plan dated August 30, 2022?

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

RESULT

3The applicant is not entitled to the disputed treatment plans.

4As there are no delayed or overdue benefits, no interest is payable.

PRELIMINARY ISSUES

The respondent is raising a new preliminary issue of whether the applicant was non-compliant with s. 32(5) of the Schedule because he did not submit an Application for Accident Benefits (“OCF-1”)

5On April 18, 2024, the parties attended a Case Conference and on consent determined the issues in dispute, which included the substantive issues, as identified above. On April 30, 2024, the Case Conference Report and Order (“CCRO”) was released and reflected that only these issues were in dispute for this hearing. The respondent has not referred me to evidence to establish that it took steps after the issuance of the CCRO to add a preliminary issue to reflect that it was arguing that the applicant was non-compliant with s. 32(5) of the Schedule.

6Section 32(1) of the Schedule requires an insured person to inform an insurer of their intention to claim accident benefits within seven days of the accident, or as soon as practicable after.

7Once an insurer receives notice of an applicant’s intention to apply for statutory accident benefits, the insurer must provide the applicant with the appropriate OCF-1 forms, a written explanation of the benefits available, information to assist the person in applying for benefits and information on the election relating to specified benefits, if available (s.32(2)). Pursuant to s.32(5) of the Schedule, the applicant must then submit a completed and signed application for benefits to the respondent within 30 days after receiving the forms.

8Section 34 states that if the insured person does not comply with the time limits prescribed under Part VIII of the Schedule, the insured person may still be entitled to benefits if they have a reasonable explanation for the delay.

9Section 55(1)1 of the Schedule provides that an insured person shall not apply to the Tribunal if they have not notified the insurer of the circumstances giving rise to a benefit or has not submitted an application for the benefit within the times set out in the Schedule.

10The interpretation of “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada, 2003 ONFSCDRS 92, and was more recently reiterated in K.H. v. Northbridge, 2019 CanLII 101613 (ON LAT). The guiding principles are summarized as follows:

1. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.

2. The onus is on the insured person to establish a “reasonable explanation”.

3. Ignorance of the law alone is not a “reasonable explanation”.

4. The test for “reasonable explanation” is both a subjective and objective test that should take account of both personal characteristics and a “reasonable person” standard.

5. The lack of prejudice to the insurer does not make an explanation automatically reasonable.

6. As assessment of reasonableness includes a balancing of prejudice to the insurer, hardship to the claimant and whether it is equitable to relieve against the consequences of the failure to comply with the time limit.

11The applicant in his initial hearing submissions did not address the preliminary issue, and he did not file a reply.

12The respondent in its submissions argued that there is a preliminary issue over the applicant’s failure to submit an OCF-1 within the time prescribed, and therefore, his application is barred under s. 55 of the Schedule.

13Based on the CCRO, I find that the respondent is attempting to raise a new preliminary issue because it is not listed in the CCRO. Further, I find that it would be highly prejudicial to the applicant if the respondent was allowed to raise this new preliminary issue in its responding submissions, as the applicant was deprived of the opportunity to fully consider and prepare for this issue in advance of the hearing. The respondent has not directed me to evidence that shows that it advised the applicant that it would be raising this preliminary issue prior to the hearing, nor did it attempt to bring a motion to add this issue in advance of the hearing.

14Considering the purpose of the Schedule is to provide accident benefits to individuals while balancing the parties’ rights to a fair adjudication of their dispute, I have therefore decided to disallow the new issue raised by the respondent. I find that it would be procedurally unfair to require the applicant to defend against an issue that was not listed in the Order.

PROCEDURAL ISSUES

The respondent’s motion dated January 8, 2025

15On January 8, 2025, the respondent filed a Notice of Motion, requesting that the Tribunal exclude the clinical notes and records (“CNRs”) from Sunnybrook Hospital, dated October 2, 2020 to October 5, 2020; the letter dated December 16, 2024 from Dr. Lauren Karatanevski, chiropractor, of Back in Action; and the applicant’s document brief, dated December 29, 2024.

Has the applicant submitted late evidence that was not properly disclosed?

a) The Sunnybrook Hospital records are not admitted into evidence

16In its motion submissions, the respondent requests that the Sunnybrook Hospital records served on December 23, 2024, not be considered as they were provided to the respondent after the final production deadline of June 17, 2024.

17I decline to admit the CNRs of Sunnybrook Hospital, dated October 2, 2020 to October 5, 2020 (Tab 1 in the applicant’s brief) into the evidentiary record as they were submitted late and thereby breached Rule 9.3 of the Licence Appeal Tribunal Rules (the “Rules”).

18The CCRO ordered that, by no later than 90 calendar days after the case conference (i.e., July 17, 2024), the parties needed to disclose any additional items responsive to items that have already been produced which they intend to present as evidence at the hearing.

19The Sunnybrook Hospital records are dated October 2, 2020 to October 5, 2020, and the documents were produced on December 29, 2024. The fact that the applicant only produced the records to the respondent after their submissions were due on December 27, 2024, prejudiced the respondent who did not have time to respond to the records and abide by their deadline for submissions. The applicant has not explained when he requested the records or the reason why the records were not available until after the production deadlines.

20In reply submissions, the respondent submits that a sur-reply will not alleviate the prejudice because it did not have the opportunity to present this evidence to its assessors for a s. 44 assessment to obtain a medical opinion on the evidence. The respondent further submits that the applicant has not explained when the applicant requested the documents or the reason the requested documents were received five months after the production deadline.

21The applicant submits that if the respondent is allowed to file a sur-reply, any prejudice caused by the late filed evidence will be alleviated. The applicant did not make any submissions regarding the timing of serving these records, or why it should be considered given the missed production deadlines.

22I agree with the respondent. Rule 9.3 mandates that any party failing to comply with disclosure rules such as those set forth in the CCRO may not rely on the document or thing as evidence without the consent of the Tribunal. I choose not to provide such consent here. The hospital records are dated four years before the date they were produced, and the applicant has not provided an explanation for the lateness of producing the records. This is unacceptably late and in my view amounts to a procedural ambush after the date when submissions were due. I further find that the respondent has been deprived of the opportunity to present these hospital records to medical professionals for a response, and therefore the records’ prejudicial impact to the respondent is greater than their probative value.

23Correspondingly, I find that the respondent has been prejudiced by the late production of the Sunnybrook Hospital records dated October 2, 2020 to October 5, 2020. I therefore decline to admit Tab 1 of the applicant’s brief to the evidentiary record.

b) The Back in Action record is not admitted into evidence

24In its motion submissions, the respondent requests that the Back in Action record dated December 16, 2024, not be considered as it was provided to the respondent after the final production deadline of June 17, 2024.

25I decline to admit the letter dated December 16, 2024, of Dr. Lauren Karatanevski (Tab 4 of the applicant’s brief) into the evidentiary record as it was submitted late and thereby breached the Rules.

26The CCRO ordered that, by no later than 90 calendar days after the case conference (i.e., July 17, 2024), the parties needed to disclose any additional items responsive to items that have already been produced which they intend to present as evidence at the hearing.

27The letter dated December 16, 2024, by Dr. Karatanevski was produced on December 17, 2024. The applicant produced the record to the respondent ten days before their submissions were due on December 27, 2024, which prejudiced the respondent who did not have time to respond to the records and abide by their deadline for submissions. If the applicant had intended to use a new document after the production deadlines, they should have introduced it at the earliest opportunity which I find they did not do.

28The applicant did not make any submissions regarding the timing of serving these documents, or why it should be considered given the missed production deadlines.

29Again, since the applicant has not provided an explanation for the lateness of the letter dated December 16, 2024, I find that the respondent has been prejudiced by the late production of this document. I therefore decline to admit that portion of Tab 4 of the applicant’s brief which contains this document to the evidentiary record.

c) The applicant’s document brief is partly admitted into evidence

30In its motion submissions, the respondent also requests that the applicant’s brief which contains the late filed evidence not be considered, which consists of Tab 1 and a portion of Tab 4 of the applicant’s brief. The respondent makes no submissions regarding Tab 2, Tab 3 and the remainder of Tab 4 of the applicant’s brief.

31The applicant submits that the respondent agreed to an extension for the applicant to file his submissions late on December 18, 2024. However, he did not make any submissions to explain the reason the applicant’s brief, Sunnybrook Hospital records or Dr. Karatanevski’s letter dated December 16, 2024, were filed late, nor did he address any prejudice to the respondent.

32I find that despite the lateness of the applicant’s brief, and the respondent has not made submissions on any prejudice caused by the late filing of the applicant’s brief, I will admit the evidence in Tabs 2, 3 and a portion of Tab 4 of the applicant’s brief to the evidentiary record. As previously stated, Tab 1 and a portion of Tab 4 of the applicant’s brief is excluded.

ANALYSIS

33To receive payment for a treatment plan under s. 15 and 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. 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 same are reasonable.

The applicant is not entitled to the plan for $4,630.00

34I find that the applicant has not established on a balance of probabilities that he is entitled to the plan for $4,630.00 for medical services.

35The applicant submits generally that the disputed plan is reasonable and necessary to reduce the effects of his disability and facilitate his return to activities of daily living. The applicant further submits that the goals of the disputed plan are pain reduction, increase range of motion and strength and to return the applicant to his activities of daily living.

36The applicant makes no specific submissions to address whether the proposed medical services are reasonable and necessary as a result of the accident. Further, the applicant has not met his burden of establishing whether the disputed plan is reasonable and necessary.

37The applicant has not provided a copy of the proposed plan for medical services. Therefore, it is not possible to determine the goals of the treatment, or whether the costs are reasonable.

38The respondent submits that since the applicant was working at the time of the accident, and he has not provided an assignment signed by the Workplace Safety and Insurance Board (“WSIB”) pursuant to s. 61 of the Schedule. The respondent further submits that the applicant has not provided objective medical evidence in support of the proposed plan for medical services.

39I find that the evidence before me does not corroborate the need for the plan dated August 30, 2022, by Dr. Lauren Karatanevski, chiropractor, of Back in Action, in the amount of $4,630.00 for medical services.

40As the applicant did not make submissions with respect to this treatment plan, or submit it into evidence, I find on a balance of probabilities that the applicant has not established entitlement to the proposed medical services since he has not addressed whether the plan is reasonable and necessary.

The applicant is not entitled to $2,200.00 for other goods and services

41I find that the applicant has not demonstrated on a balance of probabilities that the plan in dispute for other goods and services is reasonable and necessary.

42The applicant submits generally that the disputed plan is reasonable and necessary to reduce the effects of his disability and facilitate his return to activities of daily living. The applicant further submits that the goals of the disputed plan are for pain reduction, increase range of motion and strength and return to his activities of daily living.

43The applicant makes no specific submissions to address whether the proposed other goods and services are reasonable and necessary as a result of the accident. Further, the applicant has not met his burden of establishing whether the disputed plan is reasonable and necessary.

44Further, the applicant has not provided a copy of the proposed plan for other goods and services. Therefore, it is not possible to determine the goals of the treatment, or whether the costs are reasonable.

45The respondent submits that the applicant was working at the time of the accident, and he has not provided an assignment signed by the Workplace Safety and Insurance Board (“WSIB”) pursuant to s. 61 of the Schedule. The respondent further submits that the applicant has not provided objective medical evidence in support of the proposed plan for other goods and services.

46I find the applicant has not met his burden of establishing entitlement to the plan for other goods and services dated August 30, 2022, submitted by Dr. Karatanevski, chiropractor, of Back in Action. The evidence before me does not corroborate the need for the proposed other goods and services.

47There are no submissions on how the treatment plan goals would be met to a reasonable degree, nor on the overall costs being reasonable. Therefore, I find on a balance of probabilities that the applicant is not entitled to this treatment plan.

Interest

48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits have been unreasonably withheld or delayed, there is no interest payable.

ORDER

49For the reasons stated above, I find that:

i. The applicant is not entitled to the treatment plans in dispute.

ii. The applicant is not entitled to interest.

iii. The application is dismissed.