Anna Ambrosini v. Aviva General Insurance Company, 2026 CanLII 2229

Citation: Ambrosini v. Aviva General Insurance Company, 2026 ONLAT 23-009854/AABS

Licence Appeal Tribunal File Number: 23-009854/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:

Anna Ambrosini

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

VICE-CHAIR: Christopher Climo

APPEARANCES:

For the Applicant: Joshua Gautreau, Counsel

For the Respondent: Yann Grand-Clement, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Anna Ambrosini, the applicant, was involved in an automobile accident on March 28, 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, Aviva General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2A case conference was held on March 8, 2024. The Tribunal issued a Case Conference Report and Order on March 19, 2024, to proceed with a written hearing. The applicant subsequently withdrew issues 1, 2, 4 and 5 as listed in the Case Conference Report and Order.

3The applicant’s reply submissions dated October 25, 2024, requested costs pursuant to Rule 19. The respondent subsequently served a Notice of Motion dated October 29, 2024, to request that paragraphs 8 to 11 of the applicant’s reply submission, which requested costs, be struck. On October 30, 2024, the Tribunal notified the parties that the motion would be heard at the scheduled written hearing. The parties were given an opportunity to make submissions on the Notice of Motion.

ISSUES

4The issues in dispute are:

i. Is the applicant entitled to $3,557.52 for physiotherapy services, proposed by Hydro Active in a treatment plan/OCF-18 dated March 11, 2022?

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

iii. Is the applicant entitled to costs because the respondent acted unreasonably, frivolously, vexatiously or in bad faith?

RESULT

5I find that the physiotherapy services, proposed by Hydro Active in a treatment plan/OCF-18 dated March 11, 2022, are reasonable and necessary.

6The applicant is entitled to interest on any overdue payment of benefits.

7The applicant is not entitled to costs.

PROCEDURAL ISSUES

8The Notice of Motion, dated October 29, 2024, requested that paragraphs 8 to 11 of the applicant’s reply submissions be struck.

9The respondent submits that it would be prejudicial to allow the applicant to request costs as it was not an issue in dispute at the case conference, and by first raising the issue in the applicant’s reply submission (as opposed in their original submission or via a motion), the respondent does not have an opportunity to reply. The respondent also submits that the request for costs is “not properly brought” as the applicant’s justification “has nothing to do with the respondent acting unreasonably, frivolously, vexatiously or in bad faith” and does not mention the factors set out in Rule 19.

10The applicant submits that a request for costs under Rule 19 can be brought at any time in a proceeding and that the issue of procedural unfairness and prejudice was addressed by the respondent’s opportunity to provide submissions on the motion. The applicant also submits that the motion, and submissions on same, constitute the respondent continuing to act in bad faith.

11The application in this case was filed on August 21, 2023. As such the Licence Appeal Tribunal Rules (August 2023) apply to this motion.

12I find that the motion of the respondent meets the filing requirements of Rule 15.1, that both parties were provided with the opportunity to make submissions under Rule 15.2, and that the Tribunal ordered that the motion be heard at a scheduled adjudicative event under Rule 15.2.

13Rule 19.2 is very clear that a request for costs can be made in writing “at a case conference or hearing, at any time before a decision is released”. The applicant’s request for costs was brought in written hearing submissions and before a decision on the hearing was released. Any potential prejudice to the respondent or procedural unfairness was cured by the motion process initiated by the respondent. The respondent’s motion to strike paragraph 8 to 11 of the applicant’s reply submission is denied.

14Both the applicant and the respondent have conjoined the issue of whether the applicant should be allowed to request costs in their reply submission, with the issue of whether a cost award is justified on the merits. Having denied the motion, I find that the issue of costs will be added to the issues in dispute and considered on the merits.

ANALYSIS

The Treatment Plan

15To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

The applicant is entitled to $3,557.52 for physiotherapy services, proposed by Hydro Active in a treatment plan/OCF-18 dated March 11, 2022

16I find that the applicant is entitled to the treatment plan for physiotherapy services dated March 11, 2022.

17The OCF-18 recommends aqua therapy which is also known as hydrotherapy. The applicant submits that the stated goal of the OCF-18 is pain reduction, increase in strength, increase in range of motion, improving flexibility, balance and coordination, building muscle strength and endurance, enhancing aerobic capacity, assisting with gait and locomotion, reducing stress and promoting relaxation. The applicant argues that the treatment plan is therefore reasonable and necessary.

18In support of their position, the applicant relies on clinical notes and records of a number of medical providers from the date of loss to February 2024. These clinical notes and records outline the results of examinations and consultations over that period including diagnosis and treatment recommendations. The applicant’s submissions state that “as per the above…OHIP providers have confirmed that Anna requires aqua therapy because of the subject accident, and that the Insurer’s own assessor confirm that Anna finds that aqua therapy assists in her accident-related pain”.

19The respondent submits that the applicant failed to show that they should be entitled to the treatment being proposed instead providing a broad file review without pointing to how the medicals being cited justify the services at issue. The respondent also submits that the applicant has reached maximum medical improvement for her accident-related impairments and expressed interest in hydrotherapy for her unrelated fibromyalgia, which pre-dates the subject accident.

20In support of its position the respondent refers to the clinical notes and records of Dr. K. Dobkin, Family Doctor, dated September 2020 and submits that they recommend that the applicant “continue conservative measures” for her back pain, which is a far cry from recommending the aqua therapy and massage therapy in the treatment plan at issue.

21The respondent also relies on the s. 44 Insurer Examination (IE) reports of Dr. R. Soric, Physiatrist, dated January 2020, December 2021, April 2022 and June 2023. These reports conclude that, while the applicant has chronic pain, it cannot be solely attributed to the accident due to a history of fibromyalgia, and that maximum medical improvement has been reached.

22The December 2019 notes of Dr. V. Basille, Neurologist, recommends aqua fitness, which is not the same as aqua therapy but is water-based activity.

23Both parties refer to the notes of Dr. K. Dobkin dated September 2020. While I agree with the respondent that Dr. Dobkin did recommend continued conservative measures, I disagree with the subsequent conclusion the respondent drew on the treatment plan in dispute. The full version of Dr. Dobkin’s notes of September 2020, supplied by the applicant, states that she recommends spine therapeutic conservative management and provides a list of such activities, which includes aquatic therapy. Dr. Dobkin again recommends aquatic therapy in her notes of January 2023.

24Dr. M. West, Orthopaedic Surgeon, conducted an assessment in May 2023 and recommended aqua therapy treatment for both cervical and thoracolumbar spine, as well as the left shoulder.

25Dr. Soric, in her report of June 2023, notes that the applicant finds hydrotherapy beneficial in managing pain and that the applicant feels better after each treatment. Dr. Soric did not state, as submitted by the applicant, that “aqua therapy assists in accident-related pain”. She did recommend that the applicant join a community centre that has warm therapeutic pool but linked that that recommendation to the pre-existing fibromyalgia rather than accident-related injuries.

26Both parties agree that the applicant has chronic pain but differ on the reason for that pain. Both parties agree that the applicant would benefit from the use of a warm therapeutic pool. Aqua therapy is treatment in a warm pool guided by a therapist to help with healing, strength, balance and pain relief. The medical evidence supports that it has been recommended by the Dr. Dobkin in 2020 and 2023 and by Dr. West in 2023. Both Dobkin and Dr. West were aware of the pre-existing fibromyalgia, but their treatment recommendations were linked to the accident and not to the fibromyalgia.

27The treatment plan has clear goals, which can be met to a reasonable degree at a reasonable cost and is supported by medical reports. I find that the applicant has met her onus to prove the treatment plan is reasonable and necessary.

Interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I find that the applicant is entitled to the treatment plan, interest is payable by the respondent.

Costs

29The applicant sought costs pursuant to Rule 19 of $500.00 for having to file a reply submission, and an additional $500.00 for replying to the respondent’s motion to strike the cost request.

30The applicant submits that their reply submission was only required because the respondent’s submission relied on the evidence of Dr. Soric, when the Tribunal had already determined that they did not carry weight, and misrepresented the findings of the Tribunal in Licence Appeal Tribunal File Number: 21-013958/AABS, a previous decision on this accident.

31The applicant submits that the respondent continued to act in bad faith by bringing a motion on October 29, 2024 to strike the cost request rather than making submissions on the issue of costs. The applicant submits that in their e-mail of October 28, 2024 they consented to allow the respondent to submit a reply (technically a sur reply) provided it was limited to the cost issue and was no more pages in length than was provided for the applicant’s reply.

32The respondent submits that they requested that the Tribunal ignore the cost request in the applicant’s reply submission by email on October 8, 2024 as they did not have an opportunity to respond. The respondent further submits that Tribunal’s response was that they did not accept requests by email and that the appropriate form must be filed in accordance with Tribunal processes.

33Rule 19.5 stipulates that in deciding whether to order costs and the amount of costs to be ordered, the Tribunal shall consider all relevant factors including:

i. the seriousness of the misconduct;

ii. whether the conduct was in breach of a direction or order issued by the Tribunal;

iii. whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process;

iv. prejudice to other parties; and

v. the potential impact an order for costs would have on individuals accessing the Tribunal system.

34The applicant submits that:

i. the misconduct was serious as the respondent misrepresented the findings of the Tribunal in the previous decision to mislead the adjudicator in this matter;

ii. ignoring the Tribunal’s previous decision on a matter and attempting to re-litigate the issue is analogous to breaching the order and interferes with the Tribunal’s ability to carry out a fair, efficient, and effective process;

iii. there is no prejudice to the respondent as the motion process allowed the respondent to make submissions on the cost issue; and

iv. the potential impact on individuals accessing the Tribunal system would be positive as individuals need to know that when they receive a decision from the Tribunal in their favour the respondent is prevented from ignoring that decision and trying to re-litigate the issue down the road.

35The applicant’s position is not supported by the evidence.

36The decision in Licence Appeal Tribunal File Number: 21-013958/AABS is publicly available. I am therefore not relying on the respondent’s submissions with regard to what the Tribunal decided, and I am not misled.

37I find that the respondent did not make a misrepresentation. The adjudicator in the previous decision stated that they gave more weight to the reports of other medical professionals due to their expertise and specialized training and that they were more persuasive than Dr. Soric. The assessment of weight is a standard decision by adjudicators, and assigning more weight to one report over another does not mean that the other report carries no weight and can never be used in a subsequent proceeding. I am also not bound by previous Tribunal decisions and will make my own decisions on the weight to assign to evidence presented to me.

38I find that the respondent is not ignoring a previous Tribunal decision and is not attempting to relitigate an issue. The issue in dispute in this hearing was not in dispute in the previous hearing. The respondent is allowed to reintroduce evidence used in a previous proceeding on different issues, if it is relevant to the issues in dispute in this proceeding.

39The Tribunal controls it own processes. The applicant’s consent to allow the respondent to file a sur reply after the close of the written hearing submission process does not mean that the Tribunal would allow the sur reply or consider it. The respondent was advised by the Tribunal to follow the process, and this resulted in a motion being filed to be considered at the scheduled adjudicative event. As noted above, while I did not grant the motion, any potential prejudice to the respondent or procedural unfairness was cured by the motion process. The applicant’s own submission that there is no prejudice to the respondent as the motion materials allowed the respondent to make submissions on costs is at odds with their request for costs for having to reply to the motion.

40I find that none of the relevant factors apply in this case so the request for costs is denied.

ORDER

41For the reasons outlined above, I find that:

i. the physiotherapy services, proposed by Hydro Active in a treatment plan dated March 11, 2022, is reasonable and necessary.

ii. the applicant is entitled to interest on any overdue payment of benefits.

iii. the applicant is not entitled to costs.