Citation: Blair v. Definity Insurance Company, 2026 ONLAT 24-011238/AABS

Licence Appeal Tribunal File Number: 24-011238/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:

Donald Blair

Applicant

and

Definity Insurance Company

Respondent

DECISION

VICE-CHAIR:

Julian DiBattista

APPEARANCES:

For the Applicant:

Glen B Cox, Paralegal

For the Respondent:

Nicholas Maida, Counsel

HEARD: In Writing

OVERVIEW

1Donald Blair, the applicant, was involved in an automobile accident on December 4, 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, Definity 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. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to $2,530.00 for psychological services, proposed by Complete Rehab, in a treatment plan/OCF-18 (“plan”) submitted on May 12, 2023?

iii. Is the applicant entitled to $1,864.47 for chiropractic services, proposed by Complete Rehab, in a plan submitted on August 2, 2023?

iv. Is the applicant entitled to $1,328.10 for chiropractic services, proposed by Complete Rehab, in a plan submitted on October 11, 2023?

v. Is the applicant entitled to $1,740.17 for chiropractic services, proposed by Complete Rehab, in a plan submitted on January 11, 2024?

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

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

RESULT

3The applicant remains subject to the MIG.

4There is no entitlement to the disputed treatment plans.

5There is no entitlement to interest or an award under s. 10 of Reg 664.

ANALYSIS

The applicant remains within the MIG

6I find that the applicant has not proven a non-minor injury that would remove him from the MIG.

7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

8An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

9The applicant submits that under s. 38(11) the respondent is precluded from taking the position that the applicant is within the MIG as they have failed to properly deny the treatment plans.

10However, I do not accept this submission because the Divisional Court’s binding decision in Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 determined that the language in used in s. 38(11) refers to the specific treatment plan in question and does not impose a permanent prohibition with respect to whether the worker is out of the MIG. In other words, an applicant is not removed from the MIG based on non-compliance with s. 38 of the Schedule.

11I will consider the applicant’s arguments with respect to the non-compliance of the respondent’s denial letters in the course of my consideration of the disputed treatment plans below.

12The applicant further submits the following in paragraph 15 of written submissions:

In the alternative, should this Honourable Tribunal find that the respondent has complied with section 38(8) of the SABs, the Applicant respectfully submits that the totality of his medical evidence demonstrates that his soft tissue injuries resulted in functional impairments that limit his daily activities and recovery. Therefore, the MIG would not apply.

13The applicant has not submitted any authorities that would support removal from the MIG on the basis of soft tissue injuries with a functional impairment.

14I also note that the applicant has not directed me to any specific piece of evidence in support of his position.

15It is not this Tribunal's role to search through the evidence and make the argument on behalf of the applicant see Dooman v TD Insurance, 2025 ONSC 184 at para 50.

16The onus is on the applicant to prove that they suffered an injury that would fall outside the definition of the MIG. The applicant has not done so.

17Further, the applicant did not make reply submissions despite being given an opportunity to do so.

18Therefore, I find on a balance of probabilities that the applicant has not met his burden to prove an injury that would remove him from the MIG.

There is no entitlement to the disputed treatment plans

19Having determined that the applicant remains within the MIG, an analysis of the reasonableness and necessity of the disputed treatment plans is not required. I will now turn to consideration of the applicant’s s. 38(8) arguments.

All denials are compliant with s. 38(8)

20I find that the respondent’s denials for the treatment plans in dispute are compliant with s. 38(8) of the Schedule as the respondent has denied the plans on the basis of the applicant’s injuries falling within the minor injury guideline.

21Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has a impairment to which the MIG applies.

22The applicant submits that the denials for the four treatment plans in dispute are not compliant with s. 38(8) as they do not contain specific references to medical conditions and simply cite the applicant’s injuries as being within the definition of a minor injury.

23The respondent submits that the denials are compliant as they reference the applicant’s injuries falling within the minor injury guideline.

24I find that the letters of May 24, 2023, August 9, 2023, October 17, 2023 and January 18, 2024 are compliant with section 38(8) and 38(9) of the Schedule.

25The respondent’s letters identify the plan, unequivocally deny funding for it, and indicate that the MIG, which has a medical definition under the Schedule, applies to the applicant’s claims.

26In other words, standing within the MIG is a medical reason as it indicates that the applicant’s impairments are minor, which is a medical definition in the Schedule.

27As all four denial letters are compliant with s. 38(8), I find that the applicant has not established entitlement to the treatment plans on this basis.

Interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.

Award

29The 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.

30As I have found no benefits were withheld, there is no basis for an award.

ORDER

31For the reasons above I find that:

i. The applicant remains within the MIG;

ii. The applicant is not entitled to the disputed treatment plans; and

iii. There is no entitlement to interest or an award under s. 10 of Reg 664.

32This application is dismissed.