Citation: Abe v. Belair Insurance Company Inc., 2026 ONLAT 24-010949/AABS

Licence Appeal Tribunal File Number: 24-010949/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:

Franchesca Abe

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR:

Jeff Chatterton

APPEARANCES:

For the Applicant:

Haider Bahadur, Counsel

For the Respondent:

Navjot Banipal, Counsel

HEARD: In Writing

OVERVIEW

1Franchesca Abe, the applicant, was involved in an automobile accident on July 24, 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, Belair Insurance Company Inc., and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2Is the applicant barred from proceeding to a hearing for the following benefit: Issue (ii) below, because the applicant failed to dispute their denial within the 2-year limitation period?

SUBSTANTIVE ISSUES

3The substantive issues in dispute are:

i. Are the applicant’s injuries predominantly minor in nature as defined in the s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $5,173.79 for psychological services, proposed by Sarvin Sabet Psychological Services in an OCF-18 dated August 17, 2022?

i. Is the applicant entitled to interest on any overdue payments?

RESULT

4The applicant is not barred from proceeding to a hearing because she failed to dispute a denial within the two-year limitation period;

5The applicant is held to the Minor Injury Guideline;

6The applicant is not entitled to the treatment plan in dispute.

7Interest is not payable.

PROCEDURAL ISSUES

8The respondent dedicated considerable space in their written submission to raising the issue of a late submission from the applicant, arguing that because the applicant’s written submission was late, it should be dismissed. The respondent argued that the deadline to submit the applicant’s submission was July 30, 2025.

9The applicant responded that the deadline to submit their written submission was indeed July 30, 2025, and included a copy of their email submission to the Tribunal indicating it was submitted on July 30, 2025.

10As the applicant’s submission was filed within the deadline, the respondent’s request is denied.

11The applicant has also filed a procedural objection, pointing out that the respondent’s deadline to file a submission was August 15, 2025. The respondent’s submission was not filed until August 20, 2025, which gave the applicant only two days to file a reply. As a result, the applicant has requested that the Tribunal disallow the respondent’s submission in its entirety.

12I agree that the respondent’s submission was late-filed and the applicant was prejudiced because she only had two days to prepare a reply submission.

13As I have already ruled in favour of the applicant, and found that she did indeed file her submission on time, I will not strike the respondent’s submission. I find the applicant was able to successfully counter the respondent’s claim regarding the submission deadline issue, and that to disallow the respondent’s submission would result in significant prejudice to the respondent. The applicant’s request is denied.

PRELIMINARY ISSUE ANALYSIS

Preliminary Issue: Is the applicant barred from proceeding to a hearing regarding issue ii?

14The respondent argues that the applicant is barred from proceeding to a hearing because she failed to submit an application to the Tribunal within the two-year limitation deadline.

15To support their claim, the respondent points to the original denial letter, dated September 1, 2022, and the fact that the appeal was not filed with the Tribunal until September 3, 2024. The respondent argues that this is beyond the two year limitation deadline.

16Section 56 of the Schedule provides that an application shall be commenced within two years after the insurer’s refusal to pay the amount claimed.

17The applicant submits that the date that is “two years after” the date of Notice was September 1, 2024, which fell on a Sunday. The following day, Monday September 2, 2024, was a statutory holiday. Further, the applicant points to Rule 5.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”), which provides that “[w]here the time for doing an act ends on a holiday, the act may be done on the next day that is not a holiday.” In this case, the next day that was not a holiday was September 3, 2024. The applicant filed her application on September 3, 2024.

18I agree with the applicant that the application was filed on September 3, 2024, and that is within the two-year limitation deadline as defined in Rules and the Schedule.

19For this reason, I find the respondent has not, on the balance of probabilities, met the onus to establish that the applicant is barred from proceeding because she failed to dispute a denial within the two-year limitation period.

SUBSTANTIVE ISSUE ANALYSIS

Is the applicant being held to the Minor Injury Guideline?

20The applicant is being held to the Minor Injury Guideline, with the $3,500 treatment limitation.

21Section 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.”

22An 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.

23The applicant did not make a submission regarding the MIG or what impairments she believes justify removal. Instead, the applicant has chosen to make submissions about a potential violation of s. 38(8) of the Schedule by the respondent, and the potential reasonableness and necessity of the treatment plan in dispute.

24Section 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.

25However, a non-compliant s. 38(8) notice does not, on its own, warrant removal from the MIG. The consequences of s. 38(11) regarding the MIG apply only to the specific OCF-18 to which the notice relates. It does not impose a permanent prohibition on whether the applicant is covered by the MIG (see: Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707, at para 21).

26As the onus remains on the applicant, and in the absence of submissions on the issue of the MIG from the applicant, I find the applicant has not, on the balance of probabilities, met her onus to demonstrate she should be removed from the MIG.

Is the applicant entitled to the treatment plan due to a violation of s.38(8) of the Schedule?

27The applicant is not entitled to the treatment plan in dispute, as I find that the insurer’s denial notice dated September 1, 2022 is compliant with s.38(8) of the Schedule.

28The applicant argues the denial letter of September 1, 2022 did not comply with the Schedule because it did not list specific accident-related injuries, but was composed of “baseless, non-specific and meaningless language”.

29The respondent’s submission states simply that the denial letter was compliant with the Schedule. To support their claim, they have included a copy of the September 1, 2022 denial letter in question.

30I have reviewed the denial letter and agree with the respondent that the letter complies with s. 38(8) of the Schedule. The letter clearly identifies the treatment plan and provider who submitted the treatment plan. The letter states that the treatment plan appears to be a duplicate of other services already submitted for, and subsequently denied due to an Insurers Examination conducted by Dr. Rakesh Ratti on May 20, 2022, which concluded that the services were not reasonable or necessary. I find that the respondent provided medical and other reasons, as required by s. 38(8).

31While I acknowledge that the applicant has also argued the merits of the services referred to in the letter, and the merits of the Insurer’s Examination, I must note that those issues are not before the Tribunal. The question before me is whether or not the respondent was compliant with s. 38(8), and I find that it was compliant.

32As I have found that the denial letter is compliant with s. 38(8) of the Schedule, I find that the applicant is not entitled to the treatment plan in dispute.

Is the treatment plan reasonable and necessary?

33The applicant has submitted that the treatment plan is reasonable and necessary. However, as noted above, the applicant is being kept within the Minor Injury Guideline. As the treatment plan in dispute would exceed the funding limits allowed by the MIG, the applicant must be removed from the MIG in order to be entitled to the treatment plan.

34Therefore, as I have found that the applicant is being held to the MIG, and that the Respondent has not violated s.38(8), it is not necessary for me to do a reasonable and necessary analysis.

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.

ORDER

36The application is dismissed.

37The applicant is being held to the Minor Injury Guideline.

38The applicant is not entitled to the treatment plan in dispute.

39No interest is payable.