Giergon-Montoya v. Aviva Insurance Company of Canada, 2025 CanLII 97794

Giergon-Montoya v. Aviva Insurance Company of Canada, 2025 CanLII 97794

Citation: Giergon-Montoya v. Aviva Insurance Company of Canada, 2025 ONLAT 23-013612/AABS

Licence Appeal Tribunal File Number: 23-013612/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:

Jennifer Giergon-Montoya Applicant

and

Aviva Insurance Company of Canada Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Cary Schneider, Counsel

For the Respondent: James Brown, Counsel

HEARD: By way of written submissions

OVERVIEW

1Jennifer Giergon-Montoya, the applicant, was involved in an automobile accident on January 29, 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, Aviva 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 an income replacement benefit of $400.00 per week from July 5, 2023 ongoing? Note: both parties accepted that the applicant meets the entitlement for an income replacement benefit, in dispute is the quantum of the benefit.

ii. Is the applicant entitled to $2,159.82 for physiotherapy services, proposed by Proactive Rehab in a treatment plan (“OCF-18”) dated February 27, 2023?

iii. Is the applicant entitled to $2,460.00 for physiatry examination, proposed by Dr. Wong in an OCF-18 submitted April 25, 2022? [Note: the stated amount of the assessment in the OCF-18 was $5,085.00]

iv. Is the applicant entitled to $2,460.00 for a neurological examination, proposed by Dr. Maji in an OCF-18 submitted April 25, 2022? [Note: the stated amount of the assessment in the OCF-18 was $5,085.00]

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

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

RESULT

3I find that:

i. Pursuant to s. 33(6) of the Schedule, the respondent was not liable to pay income replacement benefits from July 5, 2023 ongoing;

ii. The applicant is entitled to the OCF-18 dated February 27, 2023 for physiotherapy services;

iii. The applicant is entitled to partial payment of the OCF-18 for a physiatry assessment in the amount of $2,460.00;

iv. The applicant is entitled to partial payment of the OCF-18 for a neurological assessment in the amount of $2,460.00;

v. The applicant is entitled to interest in accordance with s. 51 of the Schedule; and

vi. The respondent is not liable to pay an award.

PROCEDURAL ISSUES

4On January 24, 2025 the respondent filed a Notice of Motion (“NOM”) requesting: (i) a dismissal of the applicant’s claim for an award pursuant to s. 10 of Reg. 664 because of the applicant’s failure to provide particulars of her s. 10 claim as required by the Case Conference Report and Order (“CCRO”); and (ii) leave to file an additional four pages of written submissions. On January 27, 2025 the Tribunal set the respondent’s motion to be heard as part of this written hearing.

5The respondent’s request to dismiss the applicant’s claim for a s. 10 award is denied. The respondent’s request to file an additional four pages of written submissions is granted. However, I note that the respondent’s responding submissions for this written hearing were already inclusive of four additional pages of submissions. Therefore, the respondent’s full submissions for this written hearing will be considered. However, no additional submissions may be filed.

Motion re: s. 10 award

6The respondent submits that pursuant to the CCRO, the applicant was required to provide particulars for her claim for a s. 10 award within 30 days of receiving the adjuster’s log notes. In contravention of the CCRO, she did not provide the particulars until she filed her written submissions for this hearing. The respondent argues that this failure to comply with the Tribunal order and late provision of the particulars constitute an abuse of process and trial by ambush. The respondent cites Tribunal caselaw in support of its position.

7The applicant argues that she has repeatedly advised the respondent of the special award issues by multiple emails throughout 2023-2024, in her Tribunal application and in her case conference summary. As such, she submits that there is no prejudice to the respondent. The applicant also cites Tribunal caselaw in support of her position that the Tribunal has the discretion to allow a claimant to pursue their s. 10 award claim even when particulars are not provided in advance of a hearing.

8I agree with the applicant and deny the respondent’s motion to dismiss the applicant’s claim for a s. 10 award. I agree with the respondent that all of the particulars of the s. 10 award claim were not provided prior to the applicant’s written hearing submissions. I further agree with the respondent that the decisions cited by the applicant did not address this specific situation, where the applicant first provided particulars as part of her written hearing submissions. However, I still find that the caselaw cited by the applicant is persuasive on the issue of whether a s. 10 award claim can be considered.

9In the Divisional Court decision Waldock v. State Farm Mutual Insurance Company, 2019 ONSC 6105, at the initial hearing a special award was granted by the arbitrator even though an award had not been included as an issue in dispute in any of the pre-hearing documents. The Court found that the arbitrator had inherent discretion to award a special award and that a special award is “always a possibility if the arbitrator find that the insurer unreasonably withheld or delayed the payment of benefits”. The Court also found that procedural fairness was not denied, since the respondent had opportunities to make submissions on the issue.

10Waldock was applied in both Tribunal decisions cited by the applicant, Sutherland v. Economical Insurance Company, 2024 CanLII 28822 (ONLAT). and Abdullahi v. BelairDirect Insurance Company, 2024 CanLII 121090 (ONLAT) In Sutherland, the claimant also provided particulars of the s. 10 award well-outside the case conference report and order deadline. However, after applying the reasoning in Waldock, the Tribunal found that despite the late disclosure and breach of the case conference order, it would not be procedurally unfair to consider a s. 10 award. This was because the respondent had the opportunity to respond to the applicant’s submissions by delivering written hearing submissions on the issue of an award.

11In the case at hand, the respondent had, and exercised, its opportunity to provide written submissions on the issue of the s. 10 award. As per my additional finding below, the respondent has been permitted to file an additional four pages of submissions. I agree with the reasoning in Sutherland and find that it would not be a breach of procedural fairness to consider the applicant’s claim for a s. 10 award.

Motion re: additional four pages of submissions

12In its NOM the respondent also requested leave to file an additional four pages of submissions for this written hearing. The respondent submits that the applicant provided written hearing submissions well-outside the 15 page limit provided in the CCRO and included detailed submissions on the issue of a s. 10 award. The respondent argued that it required an additional four pages to respond to the claim.

13I agree with the respondent and grant its request for an additional four pages of submissions. I note that the respondent’s written submissions for this hearing were 19 pages, thereby including the additional four pages. The respondent’s written hearing submissions will be considered in full.

ANALYSIS

Income Replacement Benefits (“IRB”)

14In the present application there is no dispute that the applicant meets the test for entitlement to post-104 week IRBs pursuant to s. 6(2) of the Schedule. Rather, the issue is whether the respondent was permitted by s. 33(6) of the Schedule to suspend the payment of IRBs from July 5, 2023 ongoing, due to the applicant’s failure to provide reasonably required financial documents that had been requested pursuant to s. 33(1).

15I find that the applicant did not comply with s. 33(1) of the Schedule and therefore, pursuant to s. 33(6) the respondent was not liable to pay IRBs from July 5, 2023 ongoing.

16Section 33(1) of the Schedule states in part:

An applicant shall within 10 business days after receiving a request from the insurer, provide the insurer with the following:

1. Any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.

17Section 33(6) states that the respondent is not liable to pay a benefit in respect of any period during which the insured person fails to comply with s. 33(1).

Background and parties’ positions

18The applicant was involved in an automobile accident on January 29, 2020. She submits that at the time of the accident, she was a full-time T4 employee at HM Day Spa and that while she tried to return to work, she stopped working soon after the accident due to her accident-related impairments. The applicant was initially self-represented and submits that she provided the respondent with the financial documents it requested, being the OCF-2, pay stubs and Record of Employment (“ROE”). The respondent calculated the quantum of her IRBs as $400/week, based on her income in the four weeks before the accident and began to pay IRBs effective from March 8, 2020. The respondent continued to pay post-104 week IRBs after its insurer’s examination (“IE”) assessors found that the applicant met the post-104 week complete inability test.

19On May 17, 2023, the respondent requested that the applicant attend an Examination Under Oath (“EUO”) and requested financial documents pursuant to s. 33, including:

i. Complete copy of the applicant’s 2019-2022 personal income tax returns including all schedules and attachments. Specifically, the T2125 – Statement of Business Activities and the CCA Schedule;

ii. Copies of the corresponding 2019-2022 CRA Notices of Assessment;

iii. A copy of the financial statement for the last fiscal year completed prior to the loss, the 52 weeks prior to the loss, and the period after the loss;

iv. HST remittances for the period of January 2019 to date of the letter;

v. Copies of any run sheets or revenue/expense journal for the period of January 2019 to the date of the letter;

vi. Details with respect to any collateral benefit insurance policies including copies of the policies and the dates and amounts of any payments made;

vii. Details, including names, telephone numbers, and amounts paid to any replacement workers;

viii. Dates of any return to work; and

ix. Particulars of any post-accident income.

20The applicant did not provide the requested records and on July 5, 2023 the respondent advised that pursuant to s. 33(6) of the Schedule, IRBs would be suspended as of July 15, 2023. The applicant attended the EUO on February 2, 2024. On May 3, 2024, the respondent added a request for copies of the applicant’s bank records, redacted to show only the amounts that she received from HM Day Spa, her mother, or other persons affiliated with HM Day Spa, from 1 year pre-accident to date.

21On May 8, 2024 the applicant provided Income Tax Summaries for the tax years 2020 to 2022. Although the applicant states that the ROE was provided soon after the accident, the respondent submits that it did not receive the ROE until July 31, 2024. The applicant does not dispute that she has not provided the remaining requested documents.

22The respondent argues that these tax and financial documents were reasonably required to corroborate the applicant’s pre and post-accident income, to determine the quantum of IRBs and to verify post-accident income that may not be accurately recorded by a non-arm’s length employer. It submits that the applicant’s obligations to comply with s. 33 requests do not cease simply because these documents were requested 3.5 years after the accident.

23The applicant argues that none of the requested documents are relevant for a T4 employee. She submits that in the initial period post-accident, she submitted the requested financial documents which make clear her status as a T4 employee. The respondent performed its own IRB quantum calculations and paid the $400 weekly rate. The applicant submits that the request for additional financial and tax documents came “out of the blue” 3.5 years after the accident and that her counsel had emailed the respondent 12 times to request an explanation as to why this documentation was reasonably required, without a response. She further argues that her income tax returns and testimony at the EUO established that she was only employed as a T4 employee at the time of the accident, and that the respondent has not provided any accounting report as evidence that the original IRB calculation was incorrect.

24Finally the applicant argues that the respondent failed to request the production of the financial and tax documents at the case conference held on May 8, 2024. She argues that the documentation cannot be “reasonably required” under s. 33, if the respondent had not requested the production of the documents for this written hearing.

Section 33(1) request for additional documents

25I find that most of the tax and financial documents requested by the respondent were reasonably required under s. 33(1) of the Schedule.

26The applicant argues that the requested documents are not relevant to a determination of quantum of IRBs, since the evidence establishes that she was a T4 employee at the time of the accident. However, I find that the respondent has provided sufficient evidence to establish that additional information was reasonably required to clarify both the applicant’s income at the time of the accident to properly calculate the quantum of IRBs, and to verify any post-accident income resulting from a return to work post-accident.

27I note the applicant’s argument that her T4, pay stubs and testimony at the EUO establish that starting in January 2020, she only worked at the HM Day Spa as a T4 employee and nowhere else. However, the respondent argues that when it requested the tax and financial documents, it knew that the applicant had previously operated her own business, but did not know if it was still in operation at the time of the accident. The respondent points to the income tax return summary for the 2020 tax year, which recorded a professional loss of $9,256, to argue that the additional documents were required to determine if the applicant had still been operating her business at the time of the accident. If that was the case, then the IRB quantum would not have been calculated using the four-week period prior to the accident.

28The applicant points to her testimony at the EUO that the 2020 tax entry listing a professional loss of $9,256 was a mistake, as she had prepared her taxes herself. However, in my view, the respondent’s request for additional documentation to corroborate the 2020 business income loss and whether her personal business was in operation at the time of the accident, was reasonable. Particularly since the income tax documentation provided by the applicant (the income tax summary for 2020) showed the business loss, but did not provide an explanation for it. I find that the following documents requested in the May 17, 2023 letter are reasonable requests to clarify the 2020 business loss and any post-accident income: the complete personal tax returns for 2019 and 2020, specifically, the T2125 Statement of Business Activities and CCA Schedule, copies of financial statements for 2019 and 2020 and Notices of Assessment from 2019 to the date of the letter. It further does not appear that the applicant provided an income tax summary for the pre-accident tax year 2019.

29Further, I find that the respondent has led evidence establishing that its s. 33 request for additional documentation to clarify whether the applicant had returned to work post-accident, was reasonable. The respondent points to the fact that its surveillance on February 11, 14 and 20, 2021 indicated that the applicant had attended HM Spa (owned by the applicant’s mother) for up to three hours at a time. Further, clinical notes and records from the applicant’s treating clinics indicated that: in May 2022 the applicant reported that she had to go into work to take over some of her mother’s clients and that she was trying not to work more than 4 hours; in September 26, 2022 she reported she was doing “a lot more at work”; in October 2022 she reported finding her role of working with her mother at her spa difficult to navigate; and in November 2022 she reported making a “plan to exit working for her parent’s spa for several upcoming weeks”.

30The applicant points to her EUO testimony that she attended the spa to socialize as her mother and friends were there, and that she has at times volunteered at the spa. She argues that since disability is not an issue in this case and that her income tax summaries show no income in 2021-2022, the surveillance and CNRs do not support the additional s. 33 requests. However, I agree with the respondent that additional documentation, such as dates of any return to work, particulars of any post-accident income, and redacted bank records, were reasonably required to clarify whether there was any post-accident income.

31With respect to the respondent’s argument that the applicant had been employed by a non-arm’s length employer, the applicant argues that there is nothing in the Schedule stating that a different standard for documentation applies to an employee at a family business. However, the respondent has cited Tribunal decision 18-004768 v Aviva Canada, 2019 CanLII 72203 (ONLAT) where in similar circumstances, the Tribunal found that a s. 33 request for bank records was reasonable, based on surveillance showing that the claimant went to her employer’s premises on several occasions after the accident, and that the company was owned by the claimant’s husband. The Tribunal found that this raised legitimate questions about the claimant’s post-accident employment status to justify seeking further information about post-accident income.

32Similarly, in the present case the applicant had been employed by her mother’s business, and reported a number of times that in 2022 that she was working at her mother’s spa. While the applicant testified at the EUO that this was simply volunteering, I find the respondent’s request for financial documentation to corroborate this claim was reasonable.

33I further am not persuaded by the applicant’s argument that simply because the respondent requested this documentation 3.5 years after the accident, it would not be a reasonable request. A respondent is obliged to continuously adjust a claimant’s file. Moreover, the May to November 2022 CNRs from the treating clinic which revealed the applicant’s reports of returning to work appear to have been provided in February 2023. The respondent’s first s. 33 request which included the dates of any return to work and particulars of any post-accident income, was made only a few months later.

34The applicant also argues that the requested financial and tax documentation cannot be “reasonably required” under s. 33, if the respondent had not requested an order at the case conference that these documents be produced for this written hearing. I am not persuaded by the applicant’s argument. I agree with the respondent that an insurer’s right to request documents under s. 33 is independent from the Tribunal’s jurisdiction to order the production of relevant documents. The respondent submitted that since it had already exercised the remedy to suspend benefits under s. 33(6) of the Schedule, it did not have a need to request the Tribunal for a production order.

35However, I find that some of the requested documentation was not reasonably required. The respondent’s May 17, 2023 s. 33 letter listed the additional documents of: (i) copies of the run sheets or any revenue/expense journal from January 2019 to date; (ii) details with respect to any collateral benefit insurance policies, (iii) details, including the names, telephone numbers and amounts paid to any replacement workers; and (iv) HST remittances for the period of January 2019 to date. The respondent did not provide any submissions on why copies of the run sheets and journals or details of the collateral benefit insurance were reasonably required. I find that these documents, together with HST remittances and details of replacement workers, are overinclusive and were not reasonably required to determine the applicant’s income at the time of the accident, or whether she earned post-accident income.

36Further, while the respondent requested the complete personal tax returns, including the T2125 Statement of Business Activities and CCA Schedule, for 2019 to 2022, I find that this information relating to the applicant’s business activity would only be required for the years 2019 and 2020, to clarify the 2020 business income loss and whether her personal business was in operation at the time of the accident.

37The applicant does not dispute that she has not provided the documents I have found above to be reasonably requested. Given that I found that these documents were reasonably required under s. 33(1) of the Schedule, pursuant to s. 33(6), the respondent was not liable to pay IRBs to the applicant from July 5, 2023 onward.

38Sections 14 and 15 of the Schedule set out 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.

39The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit of treatment.

OCF-18 dated February 27, 2023 for physiotherapy services and OCF-18 dated April 25, 2022 for a physiatry assessment

40I find that the applicant is entitled to the treatment plan for physiotherapy services and is partially entitled to the treatment plan for a physiatry assessment.

41The evidence submitted by the applicant, including the clinical notes and records (“CNRs”) of her family physician Dr. McLinden, records from her treating rehabilitation clinic, and the s. 25 report of Dr. Wong (physiatrist) establish the applicant’s ongoing pain complaints post-accident. The applicant has also been diagnosed with Somatic Symptom Disorder with predominant pain by the respondent’s s. 44 psychiatrist Dr. Luczak in his June 6, 2022 report.

42The applicant incurred the proposed physiatry assessment and in a report dated July 21, 2022, Dr. Wong diagnosed the applicant with accident-related impairments including: post-traumatic headaches, myofascial injury of the cervical, thoracic and lumbar spine, chronic pain and chronic pain syndrome. He recommended a comprehensive chronic pain program, including continuing physiotherapy but transitioning to a more active exercise program.

43The respondent denied the proposed physiatry assessment based on the s. 44 GP assessment of Dr. Howard who found that the applicant did not suffer from ongoing physical impairment and instead recommended an assessment for medication management. However, I agree with the applicant that Dr. Howard did not address the applicant’s chronic pain complaints. The CNRs of Dr. McLinden and the applicant’s treating clinic document her ongoing pain and attempts at pain management including physical therapy and medical marijuana. I agree with the applicant that given the multi-faceted nature of her pain complaints, a physiatry assessment was reasonable and necessary.

44However, I agree with the respondent that the proposed cost of the assessment of $5,085.00 exceeded the maximum under the Schedule. As such, I find that the applicant is partially entitled to the OCF-18 up to the maximum cost for an assessment pursuant to s. 25(5) of the Schedule, being $2,486.00 ($2,000.00 for the assessment, $200.00 to complete the OCF-18 and $286.00 for HST).

45The applicant has also met her onus to prove that the OCF-18 for physiotherapy treatment dated February 27, 2023 is reasonable and necessary. In his July 21, 2022 s. 25 report, Dr. Wong recommended continuing physiotherapy but transitioning to a more active exercise program. The applicant submits that she has had to reduce the frequency of her physiotherapy treatment as she cannot afford it, although she pays out of pocket for massage treatment every other week. The applicant reported benefits from physiotherapy and in an April 4, 2022 progress report from Brainworks, her psychotherapy clinic, she reported that since her massage and physiotherapy treatment were cut off, she was having a difficult time managing her pain. Further, the applicant’s family doctor recommended continuing with physiotherapy around the time the treatment plan was submitted.

46The respondent denied the physiotherapy treatment based on the s. 44 assessment report of Dr. Fung, GP, dated July 11, 2023. Dr. Fung found that the applicant had initially sustained only soft tissue injuries to her neck and lower back, that she had reached maximum medical improvement and that the type of treatment being recommended was not reasonable and necessary three years post-accident.

47However, I am persuaded by the applicant’s evidence, including the recommendation from her family doctor to continue physiotherapy treatment and Dr. Wong’s recommendation of physiotherapy to transition to a more active exercise program. The applicant has established entitlement to the OCF-18 for physiotherapy treatment.

OCF-18 dated April 25, 2022 for a neurological assessment

48I find that the applicant is partially entitled to the treatment plan for a neurological assessment.

49The respondent denied the proposed assessment based on its neurologist, Dr. McLachlan’s s. 44 report dated June 21, 2022. Dr. McLachlan found that there was no evidence of a neurological injury and that the diagnostic criteria for a concussion were absent. The respondent argues that this concurs with the opinions of its previous neurology and neurocognitive assessors.

50I find that the applicant has met her onus to prove that the proposed neurological assessment is reasonable and necessary. The CNRs of her family physician document her post-accident concussion diagnosis, and consistent report of symptoms such as headaches, light sensitivity, nausea and cognitive impairments in the years after the accident. The applicant was referred by Dr. McLinden to Brainworks clinic, who reported a number of times as to the applicant’s cognitive challenges. Further, the applicant incurred the assessment and a s. 25 report was prepared by Dr. Majl, neurologist, who diagnosed the applicant with a mild, closed head injury, post-traumatic migraines and post-concussion syndrome.

51Despite the respondent’s assessor finding that the diagnostic criteria for a concussion was absent, I find that the medical evidence provided by the applicant supports the finding that further investigation was warranted by way of a neurological assessment.

52However, I agree with the respondent that the proposed cost of the assessment of $5,085.00 exceeded the maximum under the Schedule. As such, I find that the applicant is partially entitled to the OCF-18 for the neurological assessment up to the maximum cost for an assessment pursuant to s. 25(5) of the Schedule, being $2,486.00.

Interest

53Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the outstanding payment of the OCF-18 for physiotherapy services and the partial payment of the OCF-18s for neurological and physiatry assessments.

Award

54The applicant sought 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.

55The applicant submits that an award of 50% is warranted given the respondent’s suspension of IRBs out of the blue 3.5 years post-accident; that the respondent failed to effectively respond to 12 emails from applicant’s counsel to address the suspension of benefits; that the adjusting log notes do not have any entries between July 4, 2022 and March 25, 2024 to show that the applicant’s s. 25 reports were considered; that the respondent did not request the s. 33 documents as production orders for this hearing; and that the respondent’s withholding of benefits was unreasonable including failing to pay for the two s. 25 assessments while obtaining 11 of its own assessments.

56I find that the applicant has not established that an award is warranted. With respect to the applicant’s arguments in favour of an award for the IRB suspension, I agree with the respondent that an award would only be warranted if the suspension of benefits was unreasonable. However, I have found that the majority of the documents requested by the respondent were reasonably required under s. 33(1) of the Schedule and that the suspension of benefits was warranted under s. 33(6).

57With respect to the respondent’s denial of the assessments and physiotherapy treatment, the respondent relied on the opinions of its s. 44 assessors. While I have found that the OCF-18s are reasonable and necessary, it is well established that an award should not be ordered for the simple reason that an adjudicator determined that an insurer made an incorrect determination. I do not find that the applicant has established that the respondent’s conduct rises to the level of being excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

ORDER

58I find that:

i. Pursuant to s. 33(6) of the Schedule, the respondent was not liable to pay IRBs from July 5, 2023 ongoing;

ii. The applicant is entitled to the OCF-18 dated February 27, 2023 for physiotherapy services;

iii. The applicant is entitled to partial payment of the OCF-18 for a physiatry assessment in the amount of $2,460.00;

iv. The applicant is entitled to partial payment of the OCF-18 for a neurological assessment in the amount of $2,460.00;

v. The applicant is entitled to interest in accordance with s. 51 of the Schedule; and

vi. The respondent is not liable to pay an award.