Licence Appeal Tribunal File Number: 24-010267/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:
Toryalai Shikh Mati
Applicant
and
Definity Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Slavko Ristich, Counsel
For the Respondent:
Maia Abbas, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Toryalai Shikh Mati, the applicant, was involved in an automobile accident on January 26, 2024, 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”) for resolution of the dispute.
2In his written submissions, the applicant withdrew the substantive entitlement disputes regarding: (i) medical/rehabilitation benefits for assistive devices; (ii) psychological services and physiotherapy; and (iii) the Attendant Care Benefit (“ACB”). The hearing proceeded only on (i) an award under section 10 of Regulation 664 and (ii) interest on overdue benefits under section 51 of the Schedule.
ISSUES
3The issues in dispute are:
i. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4For the reasons set out below, I find that the applicant is not entitled to an award or interest.
PROCEDURAL ISSUE
5The parties disagreed on whether the applicant could pursue entitlement for an award after the applicant withdrew the substantive entitlement issues set out in the Case Conference Report and Order (“CCRO”).
6The Divisional Court in Vivekanantham v. Certas Direct Insurance Company, 2024 ONSC 6198, confirms that a s.10 award under Regulation 664 remains available where there is evidence that an insurer unreasonably withheld or delayed payment, notwithstanding how the underlying entitlement issues are resolved or framed.
7Having regard to Vivekanantham, I find that the Tribunal has jurisdiction to consider the applicant’s s.10 claim. However, jurisdiction does not relieve the applicant of the onus of proving that a benefit was payable and that the respondent unreasonably withheld or delayed payment.
8Therefore, I find that I have jurisdiction to consider an award under s. 10 of Reg. 664.
ANALYSIS
Background
9An Assessment of Attendant Care Needs (“Form 1”) was completed on February 7, 2024, and submitted to the respondent on April 4, 2024, for $3,044.35 per month. The respondent issued an Explanation of Benefits (“EOB”) letter on April 18, 2024, denying the ACB, capping the non‑catastrophic ACB at $3,000 per month, and advising that a section 44 insurer examination notice would follow.
10An insurer’s section 44 occupational therapy assessment was conducted on June 24, 2024, by Ms. Susanna Pui Shan Au, an occupational therapist. The resulting report, dated July 8, 2024, recommended ACBs of $1,294.62 per month. The respondent implemented this amount prospectively, effective August 1, 2024, subject to the applicant providing proof of incurred expenses.
11The applicant submitted an OCF‑6 expense form on May 3, 2024, and a further OCF‑6 on May 22, 2025. The OCF‑6s included some economic‑loss documentation from Pizzaville (e.g., employer letter, T4s, tax returns), but did not provide sufficient particulars of the attendant care services rendered (tasks performed, dates, hours/minutes), as set out in the respondent’s letters dated May 23, 2024, and June 13, 2024, requesting the aforementioned information. The applicant declined to provide bank statements, arguing that sufficient information had already been provided to calculate the economic loss (see: letter dated June 16, 2025, from the applicant’s representative stating: “We will not be providing you with a copy of her bank statements, as sufficient information has already been provided to calculate her economic loss”).
12As noted above, the issue of entitlement to ACBs is not before me.
Applicable Law
Attendant Care Benefit
13Although entitlement to ACBs is not before me, for ACBs to be payable, expenses must be “incurred”: the claimant must have received services and paid, promised to pay, or become legally obligated to pay. Where services are provided by a non-professional, payment is capped at the provider’s proven economic loss (Schedule, ss. 3(7)(e) and 19).
Award (Reg. 664, s. 10).
14The Tribunal may grant an award (up to 50% of the benefits payable) where an insurer unreasonably withholds or delays payment. The applicant bears the onus on a balance of probabilities to show conduct that is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate in the handling of benefits that were payable.
Interest (Schedule, s. 51).
15Interest is payable only on an amount payable in respect of a benefit that becomes overdue. A benefit cannot be overdue unless entitlement is first established in accordance with the Schedule.
A. Award
16I find that the applicant is not entitled to an award under s. 10 of Reg. 664.
17The applicant argues that an award is warranted because the respondent failed to pay ACBs despite receiving a Form 1, an OCF‑6 with proof of economic loss, and a subsequent section 44 assessment confirming $1,294.62 per month. The applicant submits that the respondent’s further requests, particularly for bank statements and an updated letter from Pizzaville, were unreasonable and effectively altered the requirements. The applicant cites 17‑006475 v. Aviva Insurance Company, 2017 CanLII 147725 (ON LAT), and Aviva v. Sierra Morten, 2018 ONFSCDRS 54. However, these authorities do not demonstrate that the respondent acted in the ‘excessive, imprudent, stubborn, inflexible, unyielding, or immoderate’ manner required for an award under s. 10, nor do they show that any benefit was unreasonably withheld or delayed.
18The respondent submits that ACBs are payable only if incurred under section 3(7)(e) and section 19 of the Schedule, and only up to the lesser of the Form 1 amount and the non‑professional provider’s proven economic loss. It argues that the OCF‑6s lacked the necessary particulars of services, timing, and duration to establish that any ACBs were incurred in accordance with the Schedule, and that its information requests and section 44 process were measured and reasonable.
19I agree that an award requires, at a minimum, a foundation that benefits were payable and that the insurer’s non‑payment was unreasonable or delayed. The applicant has withdrawn his request for entitlement to ACBs, and on the record before me, the respondent determined that the “incurred” requirement was not met. It found that the OCF‑6 submissions did not sufficiently identify which attendant care services were provided, by whom, on which dates, and for how long, to establish receipt of the services and an incurred expense under section 3(7)(e), or to permit calculation of any economic‑loss cap under section 19.
20Accordingly, even if jurisdiction were established under Vivekanantham, the applicant has not shown that the ACBs are payable and, in any event, has withdrawn the ACBs as an issue in dispute. As a result, I have no evidence before me that the respondent acted in an excessive, imprudent, stubborn, inflexible, unyielding, or otherwise immoderate manner in the handling of any benefits that were payable. The applicant has therefore not met the burden of proving that the respondent unreasonably withheld or delayed benefits and is not entitled to an award under section 10.
B. Interest on Overdue Benefits
21Interest under section 51 applies to an amount that was payable and became overdue under the Schedule. Since no benefits are overdue, interest cannot be applied.
ORDER
22For the reasons stated above, it is ordered that the applicant is not entitled to an award or interest.
23The application is dismissed.
Released: March 4, 2026
Harouna Saley Sidibé
Adjudicator