Licence Appeal Tribunal File Number: 24-011022/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:
Courtney B. McLellan
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Robert Konduros, Counsel
For the Respondent:
Eluxmeenah Rishihesan, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Courtney B. McLellan, the applicant, was involved in an automobile accident on November 1, 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, Belair Insurance Company Inc., 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?
ii. Is the applicant entitled to $1,908.72 for chiropractic services, proposed by Fairway Chiropractic Centre in a treatment plan dated March 5, 2024?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit. I further find that the applicant is not entitled to the treatment plan dated March 5, 2024, an award or interest.
PROCEDURAL ISSUE
Failure to comply with the Case Conference Report and Order and Notice of Written Hearing
4The respondent submits that the Case Conference Report and Order (“CCRO”) and the Notice of Written Hearing, required the applicant to serve and file his written submissions by August 13, 2025. As of the date of the respondent’s submissions on August 29, 2025, the applicant had not yet provided his submissions. The applicant subsequently filed his submissions on September 3, 2025. He then filed amended submissions on September 5, 2025.
5On September 11, 2025, the respondent filed a Notice of Motion. After the Tribunal advised that the Notice of Motion was not signed by the respondent’s counsel, an amended Notice of Motion was filed on September 12, 2025. The respondent argues that the applicant’s submissions should be struck as they were both late and also filed after the respondent had already filed its submissions. It argues that the late submissions prejudiced its right and ability to respond to the applicant’s submissions properly and on time.
6The Tribunal ordered that the Notice of Motion will be heard at the scheduled hearing.
7On September 16, 2025, the applicant provided a response to the respondent’s motion. An Affidavit was provided from Sarah Vanslyke, a law clerk at the applicant’s counsel’s office. Ms. Vanslyke states that the applicant served and filed her submissions on September 3, 2025 due to a clerical error and the due date being removed from the calendar. Amended submissions were then served on September 5, 2025, because the applicant then had more to add. Ms. Vanslyke further states that there is no prejudice to the respondent for the late filing of the applicant’s submissions.
8I agree with the respondent that the applicant’s submissions were filed late. Timelines are important and should be adhered to by all parties. However, Rule 3.1 of the Licence Appeal Tribunal Rules, 2023 (the “Rules”) requires a liberal interpretation of the Rules to facilitate a fair, open and accessible process and to allow for effective participation by all parties. I accept the applicant’s explanation for the delay that there was a clerical error, and the due date of the submissions was inadvertently deleted from counsel’s calendar. While I find that the respondent was prejudiced by having to file its submissions prior to receipt of the applicant’s submissions, I find that the respondent had the opportunity to file submissions in response to the issues raised in the CCRO.
9I find that the underlying duty of procedural fairness is that parties affected by the decision should have the opportunity to present their case fully and fairly, know the case to be met, and have a decision affecting their rights, interests or privileges made using a fair, impartial and open process: see Scarlett v. Belair Insurance, 2015 ONSC 3635 at paragraph 39. I find that procedural fairness here requires me to accept both the applicant’s submissions and the respondent’s submissions.
ANALYSIS
Minor Injury Guideline (“MIG”)
10Section 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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
11An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical recovery if they are kept within the confines of the MIG. In all cases, the burden of proof lies with the applicant.
12Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, she must demonstrate that her pain causes a functional impairment which adversely affects her well-being. The Tribunal has found that the criteria for a chronic pain condition outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”) to be a useful interpretive tool. A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.
13The applicant submits that she has not made a full recovery from the injuries sustained in the subject accident and she is unable to return to work or attend school due to her injuries. She submits that she suffers from chronic pain and relies upon the Physical Medicine and Rehabilitation report prepared by Dr. Dinesh Kumbhare, dated October 6, 2021. She submits that she submitted a treatment plan for ongoing treatment which was denied because Dr. Bansal left out important information about her health. She submits that she started nerve block injections and goes weekly since May 2025. She also started a new pain medication and creams.
14The respondent submits that the applicant has failed to meet her evidentiary burden of proving removal from the MIG.
15I find that the applicant has not proved on a balance of probabilities that she should be removed from the MIG for the following reasons.
16I find that the applicant has provided one page of submissions to support her entitlement to the issues in dispute. She has not specifically addressed the issue of her removal from the MIG except to state that she suffers from chronic pain. While the applicant has attached a report of Dr. Kumbhare to her submissions, she has not pointed the Tribunal to any specific parts of the report that support that she suffers from chronic pain which warrants removal from the MIG. In my view, it is not the Tribunal’s role to sort through the applicant’s medical evidence, or to search for support for the applicant’s position in the reports provided: see Dooman v. TD Insurance Co. 2025 ONSC 184 at para. 50.
17I find that in order for the applicant to prove that she suffers a chronic pain condition, she must direct the Tribunal to evidence which supports that she suffers from pain of a severity that causes suffering and distress accompanied by functional impairment or disability. I find the applicant has not provided sufficient evidence to support that her ongoing pain was of a significant level or was accompanied by some functional impairment or disability. I find that while the applicant submits that she is unable to return to work or attend school due to her injuries, she has not directed the Tribunal to the particular evidence to support this, and she has not made sufficient submissions as to her limitations. I find that the applicant has not directed the Tribunal to any Clinical Notes and Records (“CNRs”) of any treating practitioners to support her ongoing pain or functional limitations.
18For the reasons outlined above, I find that the applicant has not proved on a balance of probabilities that she should be removed from the MIG on the basis of chronic pain.
Entitlement to Medical and Rehabilitation Benefits
19Having found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plan dated March 5, 2024.
Entitlement to Future Care and Treatment
20The applicant in her submissions claims that the amount in dispute is $65,000.00 for future care and treatment. She further requests an order that her treatment plans be approved for further care and treatment for chiropractic care in the sum of $66,908.72.
21I find that future care and treatment is not an issue before the Tribunal. The Tribunal can only assess the benefits raised in the applicant’s Application to the Tribunal. The CCRO lists the issues in dispute as MIG, the treatment plan dated March 5, 2024, an award and interest. I therefore find that the issue of future care and treatment is not before me.
Interest
22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that no benefits are overdue, no interest is payable.
Award
23The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
24I find that the applicant has not made any submissions with respect to her entitlement to an award and therefore no award is payable.
ORDER
25For the reasons outlined above I find,
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit;
ii. The applicant is not entitled to the treatment plan dated March 5, 2024;
iii. The respondent is not required to pay an award;
iv. The applicant is not entitled to interest;
v. The application is dismissed.
Released: March 19, 2026
Melanie Malach
Adjudicator