Citation: McPherson v. SGI Canada Insurance Services Ltd., 2026 ONLAT 25-000528/AABS

Licence Appeal Tribunal File Number: 25-000528/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:

Roberta McPherson

Applicant

and

SGI Canada Insurance Services Ltd.

Respondent

DECISION

ADJUDICATOR: Nikisha Evans

APPEARANCES:

For the Applicant: Jeffery R Crannie, Counsel

For the Respondent: Jeffrey Pasternak, Counsel

Court Reporter: Maraa Gardner

HEARD by Videoconference: October 8, 2025 & November 24, 2025 & written submissions

OVERVIEW

1Roberta McPherson, (the “applicant”), was involved in an automobile accident on June 9, 2023, 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 SGI Canada Insurance Services Ltd. (the “respondent”) 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 (MIG) limit? Note: The parties agreed at the case conference that the MIG limits have not been exhausted, and their submission shall identify the amounts remaining.

ii. Is the applicant entitled to $3,282.81 for Physiotherapy treatment, proposed by Generations Sport and Spine Physiotherapy Centre Inc. in a treatment plan/OCF-18 (“plan”) dated August 14, 2024?

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

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

RESULT

3Applicant remains subject to MIG.

4The treatment plan in dispute is awarded pursuant to s. 38(11) of the Schedule, the applicant is entitled to $3,282.81 for physiotherapy services, proposed in a treatment plan, dated August 14, 2024. The applicant is also entitled to interest in accordance with s. 51 of the Schedule.

5The respondent is not liable to pay an award

ANALYSIS

Should the applicant be removed from the MIG?

6I find that the Applicant is not removed from the MIG.

7Section 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.”

8An 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.

9The applicant submitted that she was suffering from ongoing pain as a result of a nondisplaced C7 spinous process fracture. To support her argument, she is relying upon the Clinical Notes and Records (“CNRs”) of her family physician, Dr. Kusum Kundi, Dr. Donovan from Haldimand War Memorial Hospital, computed tomography (CT) from Greater Niagara General Hospital, X-ray from Welland Hospital, Generations Sports & Spine Physiotherapy Centre Inc. and Dr. Donald Chew, neurologist.

10The applicant gave oral testimony that she experienced a burning sensation on the top of her head and the back of her neck immediately after the collision. She further submits that being rear-ended caused her to fly forward and backward quickly. The applicant submits that since the accident she has experienced ongoing headaches and paresthesia. She submits that she requires help from her son with housekeeping tasks, she is unable to lift heavy items, and her work hours have been reduced. The applicant gave oral testimony that the physiotherapy helps and that she attended once or twice a week until the respondent ceased paying for the treatments. The applicant made continual complaints to her family doctor and medical professionals she saw, including Dr. Gilbert Yee, the respondent’s assessor. The applicant submits that she continues to have pain and has ceased attending physiotherapy because the respondent will not pay for further treatments.

11Further, the applicant gave testimony that she was very stressed and had a fear of driving. She further submits that her Family Doctor’s CNRs dated December 1, 2023, reflect her frustration because she feels she is being brushed off by everyone. The applicant has not directed me to any medical evidence regarding psychological impairment that may remove the applicant from the MIG. The applicant also submits that she had neurological injuries, submitting she had headaches and paresthesia. The family doctor referred the applicant to Dr. Chew for an examination. Dr. Chew reported that the applicant possibly suffered a “double crush” injury but could not confirm because it may be too early to detect by standard electrophysiological testing. The applicant did not direct me to further evidence to confirm Dr. Chews assumptions.

12The respondent argues that the applicant does not suffer injuries that removes her from the MIG. To support its argument, the respondent relies upon a s. 44 Orthopaedic Assessment Report authored by Orthopaedic Surgeon, Dr. Gilbert Yee, dated January 6, 2025.

13Dr. Yee reported that the applicant has residual symptomatology related to myofascial strains of the cervical and thoracolumbar spine and posterior shoulder muscle girdle. He further opined that his examination confirms the applicant was experiencing tenderness to palpation in the regions of her complaint. Dr. Yee noted that the applicant reports independence with personal care tasks with pain but difficulty with household chores and tries to manage as best as she can with the assistance of her son. He further opined that he would not place any specific restrictions on the applicant as a direct result of injuries sustained in the accident of June 9, 2023.

14The applicant submits that Dr. Donovan from Haldimand War Memorial Hospital diagnosed her with a nondisplaced C7 spinous process fracture on June 9, 2023. In addition, she submits that Dr. Kundi made notes in his CNRs, and he referred the applicant to Greater Niagara General Hospital for a CT scan on June 13, 2023. The results came back on June 13, 2023, that the applicant did not have a nondisplaced C7 spinous process fracture. The applicant further attended for another opinion from Welland Hospital, Generations Sports & Spine Physiotherapy Centre Inc. on August 2, 2023. The results from Welland were that the Applicant did not have a nondisplaced C7 spinous process fracture.

15The applicant has not directed me to any medical evidence or provided specific submissions on why she should be removed from the MIG due to a fracture, psychological or neurological conditions. The burden of proof lies with the applicant to establish that she has suffered a fracture, psychological or neurological conditions, which in this case she has not. For this reason, I find on a balance of probabilities, she is not removed from the MIG.

16For the reasons noted above, I find that the Applicant has not pointed me to evidence that she suffers from an injury that is not minor as defined in the Schedule. She remains within the MIG and is subject to its $3,500.00 limit on treatment.

Compliance with s. 38(8) and s.38(9) of the Schedule

17As an alternative argument, the applicant submits that the treatment plan in dispute is payable pursuant to s. 38(11) of the Schedule, as the respondent did not comply with the notice requirements of s. 38(8) and s.38(9) of the Schedule.

18Under s. 38(8), the insurer must notify the insured person within 10 business days with its decision on whether it will pay for the goods and services requested. If it refuses to pay for them, it must state the medical and other reasons why it considers the goods and services not to be reasonable and necessary. Further, s. 38(9) adds another procedural obligation, and requires that, if the insurer takes the position that the MIG applies, it must include this information in the actual notice as well. A consequence of the insurer’s failure to comply with s. 38(8) is that the benefits are payable as set out in s. 38(11).

19The applicant submits that the respondent’s denial letter dated August 30, 2024, did not comply with s. 38(8) as it does not address the applicant’s specific medical condition or the information provided in the treatment plan, it fails to include the medical or other reasons forming the basis of the decision. Further, the applicant submits the respondent did not comply with s38(9) which, it must advise that the MIG is applied.

20The respondent submits that the applicant’s OCF-18 is dated August 14, 2024, however, it was submitted to the respondent on August 21, 2024. The respondent sent the applicant the Explanation of Benefit (EOB) on August 30, 2024, within the 10 days required under s.38(8). Further, the respondent submits it complied with s. 38(9) when it informed the applicant in the same letter that the treatment plan was not reasonable and necessary and will not be funding it at the time. The respondent further stated that it will require the applicant to attend an insurer’s examination to determine if the applicant’s injuries are inside the MIG. The respondent further sent an email dated January 6, 2025, and the insurer again did not state the reasons of the denial of the treatment plan to comply with s.38(8) and s.38(9).

21I find that where an insurer believes the MIG applies, then it must always comply with s.38(9) in order to comply with s. 38(8). My reasons for this finding are as follows.

22First, the SABS is consumer protection legislation which is to be interpreted liberally while restrictions are to be interpreted narrowly. As a result of a power imbalance between the insurer and the insured person, the legislature has decided to require the insurer to comply strictly with the Schedule and impose significant consequences on the insurer for noncompliance.

23Second, I read s.38(9) as adding to the notice requirement in s. 38(8) where the insurer believes the MIG applies, therefore a compliant s. 38(8) notice must always include mention of the MIG in such circumstances.

24I find that the August 14, 2024, EOB was not compliant with s.38(8) as it did not provide any medical reasons for the denial and failed to inform the applicant that her injuries fall within the MIG as what is required in s.38(9). The ability of the insurer to request a s. 44 examination as part of a s. 38(10) does not relieve the insurer from citing the MIG as required by s. 38(8) and (9).

25Failure by an insurer to properly satisfy any of these requirements trigger the “shall pay” requirement under s. 38(11). The respondent’s August 14, 2024, denial fail to comply with s. 38(8), therefore, it “shall pay” for the OCF-18.

26I find that the respondent failed to comply with s.38(8) and (9) in providing adequate notice in denying the treatment plan. As such, the consequences in s.38(11) are triggered, and the treatment plan is payable. An analysis as to whether the treatment plan is reasonable and necessary is not required.

Interest

27The applicant is entitled to interest in accordance with s.51 of the Schedule for the OCF-18 in the amount of $3,282.81 for the physiotherapy services.

Award

28The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

29As the respondent did not unreasonably withhold or delay payment of benefits, no award is payable.

ORDER

30I order that:

i. Applicant remains subject to MIG.

ii. The treatment plan in dispute is awarded pursuant to s. 38(11) of the Schedule, the applicant is entitled to $3,282.81 for physiotherapy services, proposed in a treatment plan, dated August 14, 2024. The applicant is also entitled to interest in accordance with s. 51 of the Schedule.

iii. The respondent is not liable to pay an award.