Citation: Hami v. Aviva Insurance Company of Canada, 2026 ONLAT 23-013383/AABS

Licence Appeal Tribunal File Number: 23-013383/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:

Azita Hami

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Melissa Shea

APPEARANCES:

For the Applicant:

Adesina John, Paralegal

For the Respondent:

Tefiney Scarlett, Paralegal

HEARD: In Writing

OVERVIEW

1Azita Hami, the applicant, was involved in an automobile accident on June 16, 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 Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute, on November 6, 2023.

2As per the Case Conference Report and Order (“CCRO”) issued July 19, 2024, paragraph 20, submissions must make specific reference to the evidence and authorities by tab and page number. The applicant’s submissions frequently did not make specific reference to the evidence by tab and page number, and frequently incorrectly stated dates, nevertheless, I have attempted to review the applicant’s submissions as intended by the applicant.

PRELIMINARY ISSUES

3The preliminary issue in dispute is:

i. Is the applicant barred from proceeding to a hearing for the following benefit: physiotherapy services for $200.00 ($1,300.00 less $1,100.00 approved) in a treatment plan/OCF-18 (“plan”) submitted October 9, 2019 by Physiofact Clinic because the applicant failed to dispute their denial within the 2-year limitation period?

SUBSTANTIVE ISSUES

4The substantive 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 $200.00 ($1,300.00 less $1,100.00 approved) for physiotherapy services, proposed by Physiofact Clinic in a plan dated September 14, 2019?

iii. Is the applicant entitled to $2,400.00 for psychological services, proposed by Baskakova Psychology Professional Corp. in a plan submitted May 17, 2021?

iv. Is the applicant entitled to $3,478.00 for physiotherapy services, proposed by Physiofact Clinic in a plan submitted May 19, 2021?

v. Is the applicant entitled to $2,400.00 for a psychological assessment, proposed by Baskakova Psychology Professional Corp. in a plan submitted December 16, 2021?

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?

5Issue 4 (2), in the CCRO is listed as October 9, 2019, however, in the applicant’s submissions and on the OCF-18 is dated September 14, 2019, and therefore the issue in dispute above reflects the correct date as per the OCF.

6Issue 4 (v), listed in the CCRO as for psychological services, however, is as per the OCF-18 for an assessment, as above.

RESULT

7I find that:

i. The applicant is barred pursuant to s. 56 of the Schedule from proceeding to a hearing for the treatment plan dated October 14, 2019, because she failed to dispute the denial within the 2-year limitation period;

ii. The applicant is subject to the MIG;

iii. The applicant is not entitled to the treatment plans in dispute, or interest;

iv. The applicant is not entitled to an award.

PRELIMINARY ISSUE ANALYSIS

The applicant is statute-barred from proceeding to a hearing for the OCF-18 dated October 14, 2019

8I find that the applicant is statute-barred pursuant to s. 56 of the Schedule from proceeding to a hearing for the treatment plan dated October 14, 2019 as she failed to dispute the denial within the two-year limitation period.

9An application under s. 280(2) of the Insurance Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed. To trigger the running of the limitation period, the insurer must provide clear and unequivocal notice of a refusal to pay benefits. In Smith v. Co-Operators Gen. Ins. Co., 2002 SCC 30, (Smith) the Supreme Court of Canada articulated the requirements that an insurer must satisfy for there to be a proper denial of benefits: straightforward and clear language to inform a person of the dispute resolution process; language directed towards an unsophisticated person; identification of the person’s rights to dispute the denial; and the relevant time limits that govern that process.

10The onus is on the applicant to establish reasonable grounds for an extension under section 7 of the Licence Appeal Tribunal Act, 1999 (“LAT Act”). Section 7 allows the Tribunal to extend a limitation period for filing an appeal. In considering whether to exercise its discretion to extend the limitation period, the Tribunal must consider the following four factors set out in Manuel v. Registrar, 2012 ONAC 492, to determine if the justice of the case requires the extension:

1The existence of a bona fide intention to appeal within the limitation period;

2The length of delay;

3Prejudice to the other party; and

4Merits of the appeal.

11Manuel directs a holistic analysis of the factors, as no single factor is determinative. The factors are subject to a broader rule that an extension should not be granted unless the “justice of the case” requires it. The applicant has the onus to show “reasonable grounds” for granting an extension.

12The applicant does not dispute that her application was brought well outside the 2-year limitation period.

13The applicant argues that the OCF-18 was not properly denied under s.38 of the Schedule, and is therefore payable. The applicant submits the OCF-18 dated October 14, 2019, was not denied in accordance with the Schedule because the denial indicated that the benefit was being denied as the applicant’s injuries were considered to be within the MIG limits, and did not mention the applicant’s medical condition, which documents were reviewed to reach this conclusion, nor did it refer to the law applied in denying the benefit.

14The respondent submits the OCF-18 in dispute was submitted October 14, 2019, and denied the OCF-18 on October 23, 2019, 9 days after it was submitted to the insurer. The respondent submits that the applicant is statute barred from bringing this issue, as the applicant did not commence the appeal within two years of the denial date. The respondent submits that the applicant has not explained the length of the delay to the Tribunal. The respondent submits that the explanation of benefits was sent to the applicant, which clearly explained the 2-year limitation period.

15The denial letter from the insurer on October 23, 2019, met the requirements under Smith, partially approving the OCF-18 dated October 14, 2019 in the amount of $1,100.00. I find the insurer stated in the denial letter the reason for the denial was that the applicant’s injuries were determined to be minor, and the applicant remained in the MIG as per the evidence of physiotherapist Mehdi Lofti, the treatment provider who submitted the OCF-18. The insurer used straightforward and clear language, language which was understandable by a lay person, and provided information on disputing the denial, and on the 2-year limitation period. I find the insurer’s letter complied with the requirements under s. 38(8), it provided clear and unequivocal notice that it was denying the benefit and the reasons for doing so. I agree with the respondent that the explanation of benefits explained the 2-year limitation period. I find that the 2-year limitation period expired on October 23, 2021, 2 years after the denial notice. I find that the LAT application was filed on November 6, 2023, more than 4 years after the denial date. I find the denial met the requirements in Smith, which triggered the 2-year limitation period.

16I find that the applicant has not established that the limitation period should be extended under s. 7. I agree with the respondent that the applicant has not met their onus on a balance of probabilities sufficient submissions on the length of the delay to convince me that reasonable grounds for an extension are warranted. I further find the applicant in submissions did not address the existence of a bona fide intention to appeal, the length of the delay, prejudice to either party, or the merits of the appeal. Given the lack of submissions and evidence, I find that the applicant has not established reasonable grounds for an extension under s. 7 of the LAT Act.

17I agree with the respondent that the applicant has not addressed the holistic factors set out in Manuel, and although no single factor is determinative, I have not found the applicant has established reasonable grounds for an extension.

18The applicant submits case law Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707, paragraph 3, in which the MIG did not apply as the benefit was improperly denied, which I did not find useful in making my decision because in the adjudicator had found that the defective notice prohibited Aviva from taking the position that the applicant had a MIG impairment, with the effect of potentially receiving benefits above the $3500 monetary limit for minor injuries, however, in the case before me I find that the benefit was properly denied.

19Although I am not bound by my colleague’s decisions at the LAT, I found useful the respondent’s submitted case law Robertson v. Coseco Insurance Company, 2021 ONLAT 20-004779/AABS, in which the limitation period of accident benefits commenced 2 years after the denial, as per s. 56, as it does in this case also.

20As such, I find that the applicant is statute-barred pursuant to s. 56 of the Schedule from proceeding to a hearing on this treatment plan.

ANALYSIS

Applicant is subject to the Minor Injury Guideline limit

21I find the applicant is subject to the MIG.

22Section 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.”

23An 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.

24The applicant submits that she should be removed from the MIG based on both chronic pain and psychological injury. The applicant submits that she has been diagnosed with: neck pain with musculoskeletal signs; Dislocation of joints and ligaments of lumbar spine and pelvis; Dislocation of joints and ligaments of shoulder girdle; Tension-type headache; and Lumbosacral root disorders.

25The respondent submits that the applicant has sustained a minor injury, and remains in the MIG, and that she has not provided compelling evidence that she had any pre-existing impairment that would prevent her from achieving maximum medical recovery within the MIG. The respondent further submits that the applicant has not established that her injuries were as a result of the accident, and the burden of proof of the applicant in this case has not been met. In support of the respondent’s argument, it submits the following evidence:

i. Soft tissue injuries and remains in the MIG as per the report of Dr. Michael Fung, dated October 9, 2019;

ii. Soft tissue injuries and a normal or functional range of motion and therefore remains in the MIG as per Dr. Frank Loritz, General Practitioner’s IE report dated November 29, 2021;

iii. No clinically significant distress or impairment in social, occupational, or other important areas of function, that the applicant remains in the MIG, as per Dr. Fabio Salerno, Psychologist, IE report dated December 3, 2021;

The applicant has not established chronic pain warranting removal from the MIG

26I find the applicant has not established that she has accident-related chronic pain with functional impairment, to warrant removal from the MIG.

27The applicant argues removal from the MIG based on chronic pain. In support of her position, the applicant submits the following evidence:

i. OCF-18s dated September 14, 2019, April 6, 2021, May 1, 2021, December 16, 2021; an OCF-23 dated July 6, 2019; an OCF-24 dated September 14, 2019;

ii. Clinical notes and records arguing removal from the MIG based on chronic pain:

a) Dr. Reza Ghobadian notes January 25, 2021;

b) Dr. Michael Gofeld, Medical Doctor, diagnosed the applicant with chronic injuries.

28The respondent’s arguments are as above.

29I did not find persuasive evidence to convince me the applicant suffers from chronic pain as a result of the subject accident:

i. Although the report of Dr. Michael Gofeld, Medical Doctor, from August 17, 2023, 4 years post-accident, contained diagnoses of chronic posttraumatic headache, chronic left upper extremity pain, chronic back pain, and chronic left knee pain, he also notes that the applicant had a previous accident in 2016 that resulted in headaches, back pain, feet pain and arm pain, anxiety and sleep difficulties. No evidence of the applicant’s pre-accident medical condition was submitted by the applicant, and therefore I am unable to compare the applicant’s pre and post-accident condition so put little weight on Dr. Gofeld’s report;

ii. A letter from Dr. Layla Safina on December 19, 2019, 6 months post-accident, states the applicant has neck pain since the accident and lower back pain, however, she notes her examination revealed normal non-painful active range of motion, and indicates chronic pain however does not indicate the applicant has a functional impairment;

iii. The clinical notes of Dr. Reza Ghobadian from January 25, 2021, more than 2 years post-accident, note the applicant communicates she has constant pain at the back of her left knee since her accident, however the doctor notes that “I don't know what exactly causing her pain,”. However, I find this evidence does not support a finding of a functional impairment; and

iv. In the OCF-18 completed by Shankari Sivarajasingam, Occupational Therapist, December 16, 2021, more than 2 years post-accident, the applicant reports pain such as headaches, pain in neck and back. However, no mention is made in the OCF-18 of the previous 2016 accident from Dr. Gofeld’s report, in which he reported symptoms that occurred previous to the subject accident such as headaches, back pain, and arm pain. Therefore, I put little weight on this evidence.

30I find there is evidence of chronic pain, however, I do not find the evidence does not establish on the balance of probabilities that the applicant should be removed from the MIG based on chronic pain with functional impairment as a result of the accident.

Applicant is not removed from the MIG based on psychological impairment

31I find the applicant has not established that she has an accident-related psychological impairment, to warrant removal from the MIG.

32The applicant argues she should be removed from the MIG based on psychological impairment, and submits the following evidence in support of her argument:

i. Clinical notes and records, and assessments arguing removal from the MIG based on psychological injury:

a) Dr. Layla Safinia, Medical Doctor, in a letter dated December 19, 2019, she was diagnosed with mild chronic right C5-7 radiculopathy, a neurological issue;

b) Dr. Reza Ghobadian, General Practitioner, letter dated March 29, 2021 was referred to a psychologist;

c) Psychological pre-screen assessments:

1. Dated April 6, 2021; and

2. Dated December 16, 2021.

33I did not find persuasive evidence to convince me that the applicant suffers from a psychological impairment as a result of the accident:

i. A letter from Dr. Safina on December 19, 2019, 6 months post-accident states the applicant has pre-existing psychological and mental health conditions which include anxiety and depression. No evidence of the applicant’s pre-accident medical condition was submitted by the applicant, and therefore I am unable to compare the applicant’s pre and post-accident condition, and therefore I put little weight on this evidence;

ii. The clinical notes and records of Dr. Ghobadian, from March 24, 2021, note that the applicant “needs a new referral for psychologist for her insurance,” and from March 29, 2021, note that “patient was contacted to inform her that her letter for psychologist as requested is ready,” however, although this is indicative of an accident-related psychological condition, as a previous accident was mentioned by Dr. Gofeld resulting in anxiety and sleep difficulties I find this insufficient evidence to conclude that a psychological injury occurred as a result of the subject accident, rather than a previous accident;

iii. In the OCF-18 completed by Sivarajasingam, Occupational Therapist, December 16, 2021, more than 2 years post-accident, the applicant reports psychological symptoms such as depression, anxiety sleep irregularities, however, no mention is made in the OCF-18 of the previous 2016 accident from Dr. Gofeld’s report, in which he reported symptoms pre-subject accident such as anxiety and sleep difficulties, and put little weight on this evidence.

34I find although there is evidence of a psychological impairment, the applicant has not established on the balance of probabilities that the psychological impairment is not the result of a previous accident in 2016, and therefore that she should be removed from the MIG based on psychological impairment as a result of the subject accident.

The applicant is not entitled to the treatment plans in dispute

35As the applicant is in the MIG it is not necessary to consider if the treatment plans in dispute are reasonable and necessary. I will now turn to the applicant’s arguments under section 38 of the Schedule.

36Section 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.

The applicant is not entitled to the treatment plan for $2,400.00 dated May 17, 2021

37I find the treatment plan dated May 17, 2021 was denied in compliance with section 38(8).

38The applicant submits that the treatment plan in dispute was not properly denied, and is therefore payable, that the applicant’s injuries were not within the MIG limit as per the medical evidence provided to the respondent.

39The respondent submits that the OCF-18 dated May 1, 2021 was denied in a letter dated June 1, 2021, and December 13, 2021 and that the denial was based on the review of medical documents from Section 44 General Practitioner Assessment report of Dr. Frank Loritz dated November 29, 2021, and Section 44 Psychology Assessment report of Dr. Fabio Salerno dated December 3, 2021, and that the applicant’s injuries had been found within the MIG.

40I find that the denial letter dated June 1, 2021, in plain language provides a finding by the insurer that based on a review of the applicant’s medical records, that the applicant is subject to the MIG limit, based on Dr. Ghobadian’s clinical notes and records of June 17, 2019, and the insurer requests updated medical records. The denial letter also contains information on disputing the denial and the 2-year limitation period. The submission date of the denial letter is not included in the denial letter, and the applicant has not pointed me to evidence that the denial was not provided within the 10 business day limit in Section 38 (8) therefore, I do not find persuasive evidence to concluded that the plan was not properly denied.

The applicant is not entitled to the treatment plan for $3,478.00 dated May 1, 2021

41I find the treatment plan dated May 1, 2021 was denied in compliance with section 38(8).

42The applicant submits the OCF-18, completed by Physiofact Clinic for services in the amount of $3,478.00, dated May 1, 2021 and submitted May 19, 2021, was not properly denied. The applicant submits that the basis for the denial was that the applicant’s injuries were within the MIG limit, and the basis for the denial was based on medical documents of Dr. R. Ghobadian, and the insurer requested updated medical documents in the denial letter. The applicant submits that the denials by the insurer dated June 28, 2021, and September 28, 2021, did not meet the requirement set out in paragraph 23 of Verriano.

43The respondent submits that the OCF-18 in the amount of $3,478.00 was submitted May 19, 2021, that the applicant’s OCF-18 was denied on June 1, 2021, based on the applicant’s injuries being within the MIG limit.

44I find the plan was submitted on May 19, 2021 and denied on June 1, 2021, 9 business days later. I find that the reasons provided in the notice were that the applicant was considered to be within the MIG limit, and that clinical notes and records were provided by Dr. R. Ghobadian from June 17, 2019, and that updated medical records were requested from the applicant. I find that the plan was properly denied under section 38(8).

The applicant is not entitled to the treatment plan for $2,400.00 dated December 16, 2021

45I find the treatment plan dated December 16, 2021 was denied in accordance with s. 38(8).

46The applicant submits that the OCF-18 dated December 16, 2021 was not properly denied, as the insurer did not issue a s. 38(8) response notice, and is therefore payable as per s. 38(11). In support of her argument the applicant submits the denial by the insurer dated January 24, 2022, submitting that this improperly denies the OCF-18 dated December 16, 2021, as the IE scheduled is to address OCF-18 dated April 6, 2021.

47The respondent submits a denial letter was sent to the applicant on January 24, 2022, that explained the applicant was subject to the MIG based on findings of Dr. Salerno’s assessment on December 3, 2021.

48I find that the respondent provided a response notice as required by the Schedule. I find that the denial letter dated January 24, 2022, gives plain language reasons for the denial, including that the applicant is subject to the MIG, and provides information on disputing the denial as well as the 2-year limitation period. The denial letter does not reference the date of submission, and I was not pointed to the date of submission in the applicant’s evidence, therefore I find insufficient evidence to conclude that the denial was not within 10 business days after the plan was received. As the burden of proof lies with the applicant, I find insufficient proof to conclude that the OCF-18 dated December 16, 2021 was not properly denied by the insurer.

Award

49The applicant has not demonstrated that the respondent’s conduct meets the threshold to warrant a section 10 award.

50Under s. 10 of Reg. 664, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is 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 this criteria.

51The applicant submits that the insurer did not review updated medical documents, that her recovery was significantly delayed due to the improper denial of treatment plans in dispute, and was therefore not able to incur expenses within the limitation period.

52The respondent submits that it reviewed all documentation provided by the applicant, gave reasonable consideration to information when assessing the claim, and communicated appropriately with the applicant. The respondent submits that it did not unreasonably withhold or delay payment of benefits or act in bad faith with the applicant. The respondent further submits that the applicant did not provide any evidence warranting an award.

53I find that the respondent followed the opinions of its assessors in making its determination of the treatment plans in dispute. The respondent relied on its denials, as it is so entitled to do. Where the applicant may disagree with a determination made by an insurer, this is not grounds for an award. I find that the evidence before me does not support that the respondent has unreasonably withheld or delayed payment of benefits.

54Therefore, the applicant is not entitled to an award.

55I did not find useful in making my decision Belair Insurance Company v. McMichael, 2007 CANLII 17630 (ON SCDC), line 21, on which the applicant relied to support her position that the benefit does not need to be incurred to be found payable, however, in the case before me I have found the applicant subject to the MIG limit.

Interest

56As no benefits are payable, it follows that no interest is payable under s. 51 of the Schedule.

ORDER

57I find that:

i. the applicant is barred pursuant to s. 56 of the Schedule from proceeding to a hearing on the treatment plan for physiotherapy services submitted October 9, 2019 because she failed to dispute the denial within the 2-year limitation period;

ii. The applicant is subject to the MIG;

iii. The applicant is not entitled to the treatment plans in dispute, or interest;

iv. the applicant is not entitled to an award.