Licence Appeal Tribunal File Number: 24-008951/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:
Fatemeh Goodarzi
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Kalim Khan, Counsel
For the Respondent:
Parthenia Magharious, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Fatemeh Goodarzi, the applicant, was involved in an automobile accident on April 16, 2022, 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 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 (“IRB”) in the amount of $400.00 per week from December 8, 2022, to July 17, 2024?
ii. Is the respondent entitled to a repayment of $442.10 relating to its payment of an IRB?
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?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3The parties agree that, on July 15, 2025, the respondent approved the treatment plans/OCF-18s for occupational therapy services, physiotherapy services, and an attendant care assessment set out as issues 2, 3, and 4 in the Case Conference Report and Order dated October 30, 2024 (“CCRO”). Accordingly, these issues are no longer in dispute.
4In her submissions, the applicant advises that she withdraws her claim for expenses related to accounting reports as set out as issue 5 in the CCRO.
RESULT
5The applicant is not entitled to an IRB.
6The respondent is entitled to a repayment of $442.10 relating to its payment of an IRB to the applicant.
7The respondent is not liable to pay an award.
8The applicant is not entitled to interest.
ANALYSIS
Income replacement benefits
9For the following reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that she is entitled to an IRB.
The applicant is not entitled to an IRB based on her procedural arguments
10The applicant is not entitled to an IRB based on her procedural arguments.
11The applicant bases her arguments on the following provisions in the Schedule.
12Section 36(4) sets out that within 10 business days after the insurer receives the application and completed OCF-3, it shall pay the specified benefit; give the applicant a notice explaining the medical and any other reasons why it does not believe the applicant is entitled to the benefit and, if the insurer requires a s. 44 examination, advise the applicant of the requirement for an examination; or send a request to the applicant under s. 33(1) or (2). Pursuant to s. 36(6), if the insurer fails to comply with s. 36(4), the insurer shall pay the benefit for the period starting on the day the insurer received the application and OCF-3 until the insurer gives notice described in s. 36(4)(b).
13Section 37(2)(c) sets out that an insurer shall not discontinue paying a specified benefit to an insured person unless it has received the IE, if it required an IE, and has determined that the insured person is not entitled to the benefit.
14Section 38(8) provides that the insurer must reply to a plan within 10 business days after receipt of the treatment plan, must identify the goods and services it does not agree to pay for, and must give the medical and all other reasons for the denial.
15Section 44 provides that an insurer may require an insured person to be examined at an insurer’s examination (“IE”) to assess entitlement to a benefit under the Schedule, but not more than is reasonably necessary. A proper notice under s. 44(5) must state, among other things, the medical and any other reasons for the examination.
16Pursuant to s. 55(1), an insured shall not apply to the Tribunal if the insured has not complied with a s. 44 request.
17The applicant submits that, in discontinuing her IRB, the respondent failed to comply with the notice provisions in the Schedule, thereby triggering as a “mandatory consequence,” the continuation of the IRB.
18The applicant refers to the Ontario Court of Appeal decision of Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 (“Tomec”) at para. 42, in submitting that the Schedule is remedial and constitutes consumer protection legislation which must be interpreted harmoniously with its goals and with legislative intent, and that the goal of the Schedule is to reduce the economic dislocation and hardship of motor vehicle accident victims.
19The applicant also refers to Peixeiro v. Haberman, 1997 CanLII 325 (SCC) at para. 22, where the Supreme Court of Canada pointed out that no fault insurance is predicated upon the desire to provide accident benefits to all victims, efficiently and expeditiously.
20The applicant submits that the reference to “medical reasons and all of the other reasons” in s. 38(8) of the Schedule was enacted by the legislature in January 2013 expressly to require insurers to provide more complete reasons for denying claims. She references the Ontario Automobile Insurance Anti-Fraud Task Force, Final Report of the Steering Committee, November 2012. Consequently, the applicant argues that insurer denials and IE requests that rely on limited, non-specific explanations are irreconcilable with legislative intent, and therefore, in accordance with Tomec, are unable to meet the requirements of the notice provisions.
21The applicant further refers to decisions of the Tribunal addressing the interpretation of “medical reasons and all of the other reasons,” including M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) (“M.B.”), which deals with the appropriateness of applying a s. 38(8) analysis to other sections in the Schedule. In M.B., the Tribunal identified several factors to be considered in determining whether an insurer satisfies its obligation to provide medical and any other reasons, whether under s. 44(5)(a) or elsewhere.
22The applicant refers to the respondent’s October 7, 2022 notice to attend IEs in relation to her IRB, and makes extensive submissions with respect to why this notice does not provide sufficient “medical and any other reasons for the examination” that are required under s. 44(5). The applicant argues that, because the IEs were improperly procured, their results are void ab initio, and that therefore, the respondent is barred from relying on the corresponding IE reports, citing Taksali v. Aviva Insurance Company, 2023 CanLII 96347 (ON LAT) (“Taksali”). In Taksali, the Tribunal held that the IE notice did not contain sufficient medical and other reasons, and therefore the Tribunal did not consider the IE reports in coming to a decision. The applicant also argues that this reasoning is consistent with the principle in Tomec that the Schedule, being consumer protection legislation, must be interpreted in a manner that is consistent with its aims and with legislative intent.
23The applicant takes the position that, since the reasons for the respondent’s discontinuation of the IRB are based on the void IE reports, the reasons are also void, and therefore, do not comply with either s. 36(6) or 37(2)(c) of the Schedule. Accordingly, the applicant submits that she continues to be entitled to an IRB from December 8, 2022, to July 17, 2024.
24The respondent does not make submissions with respect to the sufficiency of the IE notice.
25I do not need to conduct an analysis in this case regarding whether the respondent’s IE notice complied with s. 44(5) for the following reasons.
26Although I am bound by the Tomec decision, I find that Tomec does not promote an interpretation of the Schedule that would result in adding a significant consequence that is not contained within it. I am not bound by other decisions of the Tribunal, and I do not agree with the reasoning in Taksali that if an insurer’s notice is non-compliant with the Schedule, then the resulting IEs should not be considered. The applicant has not directed me to a provision in the Schedule stating that an insurer is not entitled to rely on an IE report made pursuant to a s. 44 notice that was non-compliant with s. 44(5). I find that, if the legislature intended for that to be a consequence, it would have been included within the Schedule. Further, I note that since the applicant did attend at the IEs, s. 55(1) does not apply. For these reasons, even if I were to find that the respondent’s IE notice did not contain sufficient medical and other reasons, it would not change the outcome for the applicant. I would still consider the IEs (although the lack of a compliant notice might go to weight), and the applicant would not automatically be entitled to an IRB.
The applicant is not entitled to an IRB on the merits
27To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them.
28To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience.
29The applicant bears the burden of proving, on a balance of probabilities, that they meet the respective test. The applicant does not make submissions with respect to her entitlement to an IRB based on either of the tests set out above.
30For these reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that she is entitled to an IRB.
The respondent is entitled to a repayment
31The respondent has met its onus to establish on a balance of probabilities that it is entitled to a repayment in the amount of $442.10 relating to its payment of an IRB to the applicant.
32Pursuant to s. 52(1)(b) of the Schedule, a person is liable to repay the insurer any IRB that is paid to a person who was disqualified from receiving the benefit.
33The respondent refers to an Explanation of Benefits (“EOB”) dated December 1, 2022, advising the applicant that further to two IEs, she did not suffer from an impairment that would prevent her from returning to her pre-accident employment. The EOB further advised that effective December 8, 2022, the applicant was not eligible to receive the IRB.
34The respondent also refers to an EOB dated December 23, 2022, notifying the applicant that since she was not eligible for the IRB, there was an overpayment of $422.10, as calculated by Davis Martindale LLP, based on the total IRB paid up to December 8, 2022 ($8,411.70) less the amount payable ($7,989.60). In the EOB, the respondent requested payment of the $422.10 further to s. 52 of the Schedule enclosing a copy of s. 52 as well as the Davis Martindale LLP report. The respondent submits that to date, it has not received payment from the applicant.
35The applicant submits that, given that the respondent was not entitled to discontinue her IRB, the repayment issue is moot. The applicant does not make any further submissions with respect to the repayment. Specifically, the applicant does not take issue with the calculation of the repayment amount that was made by Davis Martindale LLP.
36I have already found that the applicant has not established that she is entitled to an IRB as of December 8, 2022. Based on the evidence before me, I find that the respondent provided the applicant with notice that she was no longer eligible for an IRB effective December 8, 2022, and requested a repayment based on a calculation made by Davis Martindale LLP, which I accept. Accordingly, pursuant to s. 52(1)(b) of the Schedule, the repayment is payable.
37For these reasons, I find that the respondent has met its onus to prove on a balance of probabilities that it is entitled to a repayment in the amount of $442.10 relating to its payment of an IRB to the applicant.
Interest
38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.
Award
39The 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. Since no benefits were unreasonably withheld or delayed, the applicant is not entitled to an award.
ORDER
40For the above reasons, I find:
i. The applicant is not entitled to an IRB.
ii. The respondent is entitled to a repayment of $442.10 relating to its payment of an IRB to the applicant.
iii. The applicant is not entitled to interest.
iv. The respondent is not liable to pay an award.
Released: February 18, 2026
Laura Goulet
Adjudicator