Licence Appeal Tribunal File Number: 24-006118/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:
Heather Osborn
Applicant
and
The Commonwell Mutual Insurance Group
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Frances Panganiban, Paralegal
For the Respondent:
Cecil Jaipaul, Paralegal
HEARD:
In Writing
OVERVIEW
1Heather Osborn, was involved in an automobile accident on July 19, 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, The Commonwell Mutual Insurance Group, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The preliminary issues to be decided are:
i. Is the applicant barred from proceeding to a hearing for issues 1 and 5 below because the applicant failed to dispute their denial within the 2-year limitation period?
ii. Is the applicant barred from proceeding to a hearing for issues 2, 3, and 4 below because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule?
ISSUES
3The issues in dispute are:
Is the applicant entitled to an income replacement benefit (IRB) in the amount of $185.00 per week from July 1, 2022 to ongoing?
Is the applicant entitled to $4,389.16 for psychological services, proposed by 101 Assessments in a treatment plan/OCF-18 (“plan”) submitted June 21, 2023, and denied July 5, 2023?
Is the applicant entitled to $2,460.00 for a neuropsychological assessment, proposed by 101 Assessments in a plan submitted July 20, 2023, and denied August 1, 2023?
Is the applicant entitled to $2,460.00 for a psychiatry assessment, proposed by 101 Assessments in a plan submitted July 20, 2023, and denied August 1, 2023?
Is the applicant entitled to $2,460.00 for an orthopaedic assessment, proposed by 101 Assessments in a plan submitted September 20, 2021, and denied September 24, 2021?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is barred from proceeding to a hearing for the treatment plans.
5The applicant is entitled to receive IRB payments from January 4, 2023 to January 20, 2023, plus interest on any unpaid IRB benefits.
6The respondent is not liable to pay an award.
PROCEDURAL ISSUES
7The applicant asks for the respondent’s submissions to be struck because they were served and filed three days after the deadline set by the Case Conference Report and Order (CCRO) issued by the Tribunal on October 9, 2024.
8I agree that the respondent’s submissions are late. However, the applicant has not identified any prejudice or unfairness caused by this lateness. Additionally, this issue was raised in the applicant’s reply submissions and there are no provision in the CCRO for the respondent to address issues raised in reply.
9I find that it would be procedurally unfair to consider the applicant’s request as the respondent has no opportunity to make submissions on this point. As well, there is no indication of prejudice to the applicant. For these reasons, I will not make a ruling on the applicant’s request.
10The respondent notes that the applicant did not reference evidence by tab and page number as required by the CCRO. It argues that it is procedurally improper for the applicant to expect the Tribunal to search page by page through the briefs to find evidence and make the applicant’s case for them. The respondent further argues that the absence of specific pinpoint references in the evidence means that there is no evidentiary basis to support the applicant’s case, and as such, her case should be dismissed. The applicant did not respond to these submissions.
11The applicant’s submissions do not make specific pinpoint references to the evidence with tab and page numbers, and this is inconsistent with the CCRO. However, the applicant does point to evidence, for example to specific letters by the respondent and conclusions in medical reports, and also makes submissions on that evidence. In my view, these efforts amount to the applicant putting forward a case that is supported by evidence and which must be considered by the Tribunal. This is distinguishable from Duali v. The Dominion of Canada General Insurance, 2025 CanLII 13547 (ON LAT), a case cited by the respondent, where the Tribunal gave no weight to medical reports referenced by the insured because those reports could not be located in the briefs. The applicant’s case is also distinguishable from Adeyeo v Aviva Insurance Company, 2024 CanLII 106228 (ON LAT), a reconsideration decision also referenced by the respondent, where the Tribunal was not given sufficient information to identify the documents referenced by the insured. Neither circumstance applies here. As such, I am denying the respondent’s request to dismiss the applicant’s case.
Preliminary Issue: IRB
12I find that the applicant can proceed to a hearing on the IRB issue.
13Under section 56 of the Schedule, applications to the Tribunal must be commenced within two years after the insurer’s refusal to pay a benefit.
14According to the applicant, the respondent stopped paying the IRB in January, 2023 without explaining why it stopped paying this benefit. She submits that her application, filed May 15, 2024, is not subject to the s. 56 time limitation.
15The respondent points to its denial letter dated November 9, 2021 which served as notice of non-compliance under section 33(1) of the Schedule for failure to provide the applicant’s Canada Emergency Response Benefit (CERB) file. The letter also states that no further benefits are payable as of November 9, 2021. It submits that the application was filed over two years after the denial of benefits under s. 33(6).
16I note that the respondent continued to adjust the IRB after November 9, 2021 and on January 3, 2023 issued a letter stating that it was sending a payment in the amount of $9,865.67 plus interest for “past and ongoing IRB.” The letter also states that the respondent “will be paying” the applicant an IRB of $185.00 per week, less deductions for post accident income, if she continues “to meet the test of disability...” As such, the applicant was receiving an IRB after the November 9, 2021 denial letter.
17Three days later, in a letter dated January 6, 2023, the respondent requested information under s. 33(1) of the Schedule. Neither party provided documents to show when the applicant’s IRB stopped after January 6, 2023.
18The applicant filed an application on May 15, 2024 to address the stoppage of IRB payments in 2023. As such, her application was timely, and I find that the two year time limitation under s. 56 does not apply and that the applicant can proceed to a hearing on the IRB issue.
Preliminary Issue: orthopaedic assessment
19I find that the two year s. 56 limitation applies, and that the applicant cannot proceed to a hearing for this treatment plan.
20According to the applicant, this issue was settled at a settlement conference on January 5, 2023, but the respondent did not abide by their agreement. She submits that that January 5, 2023 should be viewed as the denial date and that the two year limitation period does not apply.
21The respondent notes there is no evidence to support the applicant’s position. It submits that September 24, 2021, the date of the insurer’s denial letter, is the correct date of denial and that the limitation period applies.
22The applicant has not pointed to any evidence supporting her submissions. Therefore, I do not accept her position and find that the denial date is September 24, 2021 and that the applicant cannot proceed to a hearing for this issue because two year limitation period in s. 56 applies.
Preliminary Issue: failing to attend a s.44 examination
23The applicant is barred from proceeding to a hearing for issues 2, 3, and 4 because she failed to attend an insurer’s examination under s. 44 of the Schedule.
24Section 44(5)(a) of the Schedule requires insurers to provide medical and other reasons for insurer examinations.
25The applicant disputes her non-attendance at s. 44 insurer examination on the ground that a proper medical reason for the examination was not provided. The insurer’s letter requesting attendance at a s. 44 examination, dated August 18, 2023, states that reason for the examination is in the denial letter, dated August 1, 2023. The applicant argues that the medical reason for the denial is a post-accident slip and fall incident which has no connection to the psychological treatment being sought in the treatment plans. Consequently, she submits that the notice to attend an examination under s. 44 is invalid as the respondent did not provide a proper reason for the examination.
26The respondent submits that the notice to the applicant meets the requirements of s. 44 and that the applicant has not given a reasonable explanation for not attending the examination.
27The August 1, 2023 letter referenced by the applicant states:
We are now more than Four (4) years post-accident. The Commonwell Mutual Insurance Group question whether the goods, services, assessments and/or examinations as specified in the OCF-18 above is required as a direct result of injuries you sustained in your accident on July 19, 2019, or some other causation. Following the accident, you had an unrelated slip and fall incident on February 25, 2021, where you broke your 4^th^, 5^th^, 6^th^, and 7^th^ ribs as you were walking to your mailbox and, as a result you did not work for 3 ½ months.
28The letter goes on to state that there are no contemporaneous notes to support an ongoing psychological impairment. The above statements are repeated for all three treatment plans. The letter concludes by stating that the respondent will be arranging an insurer examination.
29I find that the medical and other reasons for the examination relate to the disputed treatment plans; in particular, causation and the absence of evidence supporting ongoing impairment. I further find that the applicant has not provided a reasonable explanation for not attending the examination, and therefore, decline to exercise my discretion under s. 55(2) of the Schedule to permit her apply to the Tribunal. As a result of these findings, I further find that she is barred from proceeding to a hearing for issues 2, 3, and 4.
ANALYSIS
IRB
30I find that the applicant is entitled to receive IRB payments from January 4, 2023 to January 20, 2023.
31The applicant submits that she did not receive notice from the respondent after January 3, 2023 letter that the IRB was stopped. In her view, this is contrary to s.37(4) of the Schedule. She argues that she is entitled to ongoing IRB payments pursuant to s. 36(4) until the respondent complies with 37(4).
32The respondent submits that its letter dated November 9, 2021 shows that the applicant did not provide information requested under s. 33(1), and that the IRB is not payable under s. 33(6). The respondent also submits that the applicant is not entitled to an IRB based on not meeting the disability test, not establishing causation, a return to work, and other reasons as well.
33I disagree with the applicant in regard to the applicability of s. 36(4). This section regulates the start of a claim, before the IRB is paid. The applicant received payment for IRBs, and therefore, s. 36(4) does not apply.
34The stoppage of IRB payments under s. 37(2)(f) of the Schedule reads as follows:
37(2) An insurer shall not discontinue paying a specified benefit to an insured person unless,
(f) the insurer is no longer required to pay the specified benefit by reason of subsection (7), paragraph 2 of subsection 28 (1), subsection 33 (6) or section 57 or 58;
35The respondent points to the November 9, 2021 denial letter as evidence of a determination under paragraph 37(2)(f).
36I disagree.
37This denial was based on s. 33(6) of the Schedule which states that an insurer is not liable to pay a benefit if the applicant fails to provide information requested under s. 33(1). The letter states that no further IRBs are payable because the applicant did not provide her CERB file to the respondent.
38The information requested under s. 33(1) must be “reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.” The letter of January 3, 2023 establishes that the applicant was receiving “ongoing” IRB payments over a year after the November 9, 2021 denial letter. This shows that the respondent was able to make a determination on the applicant’s entitlement to the IRB without the CERB file.
39If the respondent continued to require the CERB file, then it could have made a further s. 33(1) request. This did not happen. Instead, the respondent issued another 33(1) request letter on January 6, 2023 to assess IRB entitlement without asking for the CERB file.
40The respondent has not satisfied me that it continues to reasonably require the CERB file to assess IRB entitlement. Consequently, I find that the s. 33(6) IRB denial of November 9, 2021 is no longer in force because the respondent re-started IRB payments.
41The respondent’s second s. 33(1) notice, dated January 6, 2023, questions the applicant’s entitlement to the IRB on various grounds such as not meeting the disability test, causation, returning to work, and other reasons. However, there is no evidence that the insurer subsequently made a determination that the insurer is not liable to pay an IRB. Section 37(2) requires the insurer to make such a determination before discontinuing IRB payments.
42If a determination under 37(2) is made to stop paying the IRB, then the respondent must issue a notice informing the applicant of this decision and provide reasons under s. 37(4):
(4) If the insurer determines that an insured person is not entitled or is no longer entitled to receive a specified benefit on any one or more grounds set out in subsection (2), the insurer shall advise the insured person of its determination and the medical and any other reasons for its determination. (emphasis added)
43There are no letters in evidence related to the IRB issue that post-date the January 6, 2023 letter. As such, it appears that the respondent stopped paying the IRB without giving notice and reasons under s. 37(4).
44The applicant was receiving an ongoing IRB in January, 2023 which was discontinued without notice under s. 37(4). Consequently, I find that the respondent stopped the IRB in a manner that does not comply with s. 37(4) of the Schedule.
45The applicant also argues that she is entitled to ongoing IRB payments as her circumstances are similar to those in Cruz v. Western Assurance Company, 2024 ONLAT 21-011679/AABS (Cruz) and Chen v. Pembridge Insurance, 2025 ONLAT 23-002318/AABS (Chen). I disagree. Unlike Cruz and Chen, the respondent issued a second s. 33(1) notice that was provided to the applicant by email on January 6, 2023. Under s. 33(6), the respondent is not liable to pay the IRB in respect of any period where the applicant fails to comply with s. 33(1). There is no evidence that the applicant complied with the second s. 33(1) notice. Consequently, I cannot order the respondent to pay an IRB beyond 10 business days after the second s. 33(1) notice was served.
46The applicant submits that the IRB was stopped after January 3, 2023, but does not provide the actual date when payments stopped. There is no dispute that the applicant was receiving the IRB at the time of the January 3, 2023 letter. Consequently, I find that the applicant is entitled to an IRB from January 4, 2023 to January 20, 2023, which is 10 business days after the second s. 33(1) notice.
47I have no means of calculating IRB quantum as neither party has provided me with the documents needed to make such calculations.
Interest
48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any unpaid IRB benefits.
Award
49The respondent is not liable to pay an award.
50The 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.
51The applicant submits that the insurer unreasonably withheld payment of the IRB and treatment plans and that this has been detrimental to her recovery. The respondent argues that the applicant’s submissions do not justify an award.
52I have found that the respondent did not issue a proper denial under s. 37(4). However, I am not persuaded that this action can be characterized as excessive, impudent, stubborn, unyielding or immoderate. This is because the respondent’s procedural non-compliance had little impact on the applicant. At most, it may have resulted in the stoppage of the IRB for a brief period of time that cannot be quantified due to a lack of documentation. In any event, I find that this does not meet the high threshold for an award.
ORDER
53The applicant is barred from proceeding to a hearing for the treatment plans.
54The applicant is entitled to receive IRB payments from January 4, 2023 to January 20, 2023 plus interest on any unpaid IRB benefits.
55The respondent is not liable to pay an award.
Released: March 2, 2026
Harry Adamidis
Adjudicator