Citation: Zhong v. Pembridge Insurance Company, 2026 ONLAT 24-005922/AABS

Licence Appeal Tribunal File Number: 24-005922/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:

Qian Yi Zhong

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jim Zotalis

APPEARANCES:

For the Applicant:

Sareena Samra, Counsel

For the Respondent:

Ryan Kirshenblatt, Counsel

HEARD:

In Writing

OVERVIEW

1Qian Yi Zhong, the applicant, was involved in an automobile accident on June 20, 2021, 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, Pembridge 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 limit (“MIG”)? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to $4,069.56 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“treatment plan”) dated July 21, 2022?

iii. Is the applicant entitled to $3,701.88 for psychological services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated December 21, 2022?

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

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

3The respondent advised the Tribunal in its submissions that since the case conference, the applicant was removed from the MIG as a result of attendance at duly scheduled insurer’s examinations (“IEs”) and receipt and review of corresponding reports from the IEs. The respondent further advised that it approved the treatment and assessment plans under issues ii. and iii. as listed above in full. Therefore, the only remaining issues before the Tribunal were the issues of an award under s. 10 of Reg 664 and the issue of entitlement to interest on any overdue payment of benefits.

4The applicant acknowledges that she has been removed from the MIG as of November 29, 2024. On that same date, issue iii. above was approved in full.

5The applicant further acknowledges that issue ii. above was approved in full on June 6, 2025, after the applicant submitted its written materials to the Tribunal.

6The applicant seeks orders that she is entitled to the benefits claimed even though she acknowledges that they have been approved in full.

7The respondent made further submissions the Tribunal has no jurisdiction to address the stand-alone issues of an award and interest. The applicant submits the Tribunal has jurisdiction to determine the issues of an award and interest notwithstanding the treatment and assessments have been approved in full.

RESULT

8The applicant is not entitled to an award under s. 10 of Reg 664.

9The applicant is entitled to interest on any overdue payment of benefits as indicated below.

ANALYSIS

Does the Tribunal have jurisdiction to adjudicate the stand-alone issues of an award and interest without the underlying substantive issues?

10The respondent made submissions that the Tribunal does not have jurisdiction to address the stand-alone issues of interest and an award when the treatment and assessment plans giving rise to the claims are not being disputed. The respondent made submissions that as there are no substantive issues in dispute, there are no benefits in dispute for which interest and an award can be applied.

11The applicant did not provide submissions, evidence or case law on the issue of the Tribunal’s jurisdiction to hear the stand-alone issues of an award and interest. The applicant concedes that the treatment and assessment plans have now been approved in full; however, the applicant seeks an order that the benefits are payable. I will address this request for an order that the benefits are payable below.

12The Divisional Court in McDonald v. Aviva Insurance Company, 2024 ONSC 6030, confirmed that an award is a stand-alone issue that is not dependent on the Tribunal deciding the issue of entitlement. At paragraph 50, the Court stated:

The interpretation of the “amount” to which the insured person was entitled at the time of the award under s. 10 calls for a broad interpretation, permitting not only an adjudicated amount but also an amount that the insurance company had agreed to pay. To do otherwise would be not only inefficient but also place another hurdle in the way of a special award beyond those contemplated by the words of the section, contrary to the principles of statutory interpretation. As put in 17-006757, this would be unreasonable, inequitable and defeat the purpose of the statute.

13This same principle was also expressed by the Divisional Court in Vivekanantham v. Certas Direct Insurance Company, 2024 ONSC 6198 at paragraph 44. These decisions are binding on me.

14For the reasons stated above, I find that the issue of an award and interest is properly before the Tribunal as stand-alone issues without the need for an underlying substantive issue of an assessment and treatment plan.

15The respondent issued the following to the applicant:

(i) An email dated June 6, 2025, confirming that an OCF-18 in the amount of $4,069.56 for physiotherapy services has been approved; and

(ii) An Explanation of Benefits (“EOB”) dated November 29, 2024, confirming that an OCF-18, dated December 21, 2022, in the amount of $3,701.88 for psychological services is payable.

16I find that the respondent has confirmed through both an email and the EOB that the treatment and assessment plans referred to in paragraph 15 above are approved in full, and given that the plans are no longer in dispute, it is not properly before the Tribunal to issue an order that the applicant is entitled to the treatment plans referred to herein.

Is the applicant entitled to an award under s. 10 of Reg 664?

17The applicant is not entitled to an award under s. 10 of Reg. 664.

18If the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule..

19The Tribunal has long held that in determining whether an insurer’s conduct in withholding or denying a benefit warrants an award, an insurer’s behaviour must be seen as “excessive, imprudent, stubborn, inflexible, unyielding, or immoderate”. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.

20The applicant made submissions that there was ample medical evidence before the respondent in the form of clinical notes and records (“CNRs”) referencing psychological and physical injuries to approve the treatment and assessment plans for proposed psychological and physiotherapy services. As such, the applicant submits the respondent unreasonably and deliberately withheld and delayed payment to a vulnerable applicant who was 10 weeks pregnant at the time of the accident. The applicant also made submissions that any request for rescheduling of s.44 assessments by the applicant were reasonable and necessary to accommodate the applicant’s child-minding needs, the applicant’s leg injury and an assessor’s request to reschedule.

21The respondent made submissions that there were numerous requests to schedule IEs for both the proposed physiotherapy services and the proposed psychological services, with the first notices sent on or about January 17, 2023, with IEs scheduled for February 14, 2023, and February 22, 2023, respectively. The respondent submits that the applicant did not attend either as she requested that both be rescheduled. Both were rescheduled for February 25, 2023, and March 15, 2023, respectively. The applicant did not attend the psychological IE on February 25, 2023, and the respondent replied to the applicant’s request for a rescheduling by setting a date for April 4, 2023. The applicant then did not attend the physiatry IE set for March 15, 2023, and did not attend the psychological IE scheduled for April 4, 2023.

22The respondent made submissions that due to non-attendance at scheduled IEs by the applicant, the respondent stopped any medical and rehabilitation benefits as of February 25, 2023, and would not resume any benefits until the applicant confirmed an intention to schedule and attend at future IEs. The respondent made submissions that the medical evidence on file for the applicant prior to the eventual issuance of the IE reports to the applicant were minimal, with only one reference to the accident in over 40 months and no psychological complaints to the family doctor and no reference to physical injuries as a result of the accident.

23The respondent submits that the IEs were rescheduled after the applicant confirmed her intention to attend rescheduled IEs after she commenced a new application on May 9, 2024. Those IEs occurred on November 6, 2024 (physiatry IE) and November 14, 2024 (psychological IE). Upon receipt of the IEs, the respondent removed the applicant from the MIG and approved the proposed psychological services and subsequently the proposed physiotherapy services.

24I find that the respondent’s conduct does not warrant an award as it relied on s.44 assessments to adjust the claim and its actions resembled those of an insurer who was attempting to investigate and assess the claim fairly and in a balanced and reasonable manner. In reviewing the framework of s.44 of the Schedule, the respondent is entitled to reasonably necessary IEs. At the same time, the applicant is obligated to attend such IEs. I find that the respondent had in fact scheduled reasonably necessary IEs. The respondent can withhold benefits in the event the applicant does not attend reasonably necessary IEs. In this case, I find that the respondent was within its rights to withhold benefits given the applicant did not attend the scheduled IEs. Finally, the applicant has not directed me to specific conduct by the respondent which can be characterized as excessive, imprudent, stubborn, inflexible, unyielding or immoderate to attract a s.10 award under the Regulation.

25For the reasons stated above, the applicant is not entitled to an award under s.10 of Reg 664.

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

26The applicant is entitled to interest on any overdue payment of benefits.

27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

28The applicant argued that the account summaries and invoices reflect that the treatment plans for psychological services and physiotherapy services were fully incurred and thus interest is due as a result of overdue payment of benefits.

29The respondent argued that interest is only payable under s. 51 of the Schedule when an applicant incurs the cost of a benefit. The respondent directs me to Nijjar v. Pembridge Insurance Company, 2020 CanLII 101748 (ONLAT), standing for the proposition that interest is only payable after the benefit has been incurred. The term “overdue” is not a defined term in the Schedule.

30Section 51 only requires interest to be payable if the insurer fails to pay the benefit within “the time required under this Regulation,” which, according to s.15, is once a benefit is incurred.

31The applicant provided account summaries and invoices from Somatic Assessments & Treatment Clinic Inc. and Total Recovery Rehab Centre along with three (3) Auto Insurance Standard Invoices (“OCF-21”) dated June 6, 2025, May 22, 2025, and June 10, 2025 to demonstrate that the plans were incurred.

32After a review of the account summaries and the OCF-21s, I find that the physiotherapy services in the amount of $4,069.56 were incurred in full; therefore, interest is owed on that amount. With respect to the psychological services in the amount of $3,701.88, I find the amount of $1,995.36 was incurred by the applicant and therefore interest is owed on that amount only, in accordance with the Schedule.

33The applicant is entitled to interest on the overdue payment of benefits as indicated herein.

ORDER

34For the reasons outlined above, the Tribunal orders as follows:

i. The applicant is not entitled to an award under s. 10 of Reg 664; and

ii. The applicant is entitled to interest on any overdue payment of benefits as referenced above.