Licence Appeal Tribunal File Number: 24-007039/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:
Mastan Vali Syed
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Aric Bhargava
APPEARANCES:
For the Applicant:
Olga Poznyakova, Paralegal
For the Respondent:
Hussein Pirani, Counsel
Justin Chan, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Mastan Vali Syed, the applicant, was involved in an automobile accident on March 20, 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 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.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit ("NEB") of $185.00 per week from April 20, 2023 to March 20, 2025?
ii. Is the applicant entitled to $2,200.00 for a functional abilities assessment proposed by Alcat Assessment Inc. in a treatment plan/OCF-18 ("plan") dated May 31, 2024?
iii. Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by Prime Health Inc. in a treatment plan dated January 17, 2024?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
v. Is the respondent liable to pay an award of $500.00 under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the respondent entitled to costs in the amount of $500.00 because the applicant acted in bad faith?
3Rule 19.2 of the of the Licence Appeal Tribunal Rules, 2023, ("Rules") provides that a party may made a request for costs in writing or orally at a case conference or hearing, at any time before the decision or order is released. As the respondent requested costs prior to the decision in this matter, I find that the respondent has requested costs in accordance with Rule 19.2 and, therefore, I order issue vi. to be added to the issues in dispute.
RESULT
4The NEB is payable in the amount of $185.00 per week from April 20, 2023 to March 20, 2025, plus interest.
5The applicant has not demonstrated that the functional abilities assessment is reasonable and necessary.
6The applicant is entitled to the chronic pain assessment, plus interest.
7The respondent is not liable for an award.
8No costs are payable.
PROCEDURAL ISSUES
Non-compliance with production order
9The parties participated in a Case Conference, and a Case Conference Report and Order ("CCRO") was issued dated October 15, 2024. At paragraph 10(ii)(c) of the CCRO, the respondent agreed to produce copies of all denial letters for each issue in dispute with confirmation, if any, as to when and how the letters were provided to the applicant and the applicant's legal representative, by no later than 30 calendar days following the Case Conference, or by November 3, 2024. Additional productions that the parties rely upon had to be produced at 60 days (December 3, 2024) and 90 days (January 2, 2025).
10The applicant seeks to exclude the denial letter dated May 5, 2023 on the grounds that it was not disclosed in accordance with the CCRO. The applicant's initial submissions dated June 4, 2025, submit that the respondent did not provide a denial notice for the NEB. The respondent then included the May 5, 2023 denial letter within its responding submissions dated June 19, 2025. In reply, the applicant submits he was prejudiced by this late disclosure of the denial letter, because it derives him of sufficient notice and the opportunity to respond.
11The respondent submits the May 5, 2023 denial letter was in the applicant's possession, because it was delivered well before the CCRO production deadline and there is no prejudice to the applicant. It concedes that it was not produced following the CCRO, indicating it was an oversight. The respondent did not comply with the order to provide evidence and did not include a reason for its non-compliance with the production order. The respondent provided what it indicates is evidence of delivery in a sur-reply.
12Before turning to the denial letter, I will address the respondent's sur-reply. The respondent had the option of requesting a sur-reply by filing a motion which it did not request. However, in this case, I will accept the respondent's sur-reply because it clarifies statements made by the applicant in reply.
13Turning to the denial letter, Rule 9.3 of the Rules states that if a party fails to comply with any Rule or Order with respect to disclosure, that party may not rely on the document as evidence, without the permission of the Tribunal. When making its determination, the Tribunal may consider any relevant factor, including:
a) the reasons for non-compliance;
b) whether a party will be prejudiced by the admission or exclusion of the evidence and the extent to which that prejudice can be mitigated by any other order;
c) the extent to which the substance of the information or testimony lies within the knowledge of the other party;
d) whether the other party opposes the admission of the evidence or testimony; and
e) the relevance of the document, thing, or testimony to an issue in dispute in the proceeding.
14I find the respondent provided no reason for the non-compliance with the production order and the applicant is prejudiced by the respondent's non-compliance with the production order in the CCRO. The applicant is entitled to know the case to be met, and his submissions indicate that the denial letter was not provided by the respondent, because it had not been produced at the time he made his submission. Further, the alleged evidence of prior delivery, ordered by the CCRO, was not provided until the respondent's sur-reply.
15I will allow the denial letter into evidence, but I draw an adverse inference against the respondent failing to produce the relevant records as ordered by the Tribunal. The Tribunal has the discretion to draw an adverse inference where, in the absence of a reasonable explanation, a party fails to produce evidence that is within its control, and such evidence is material to the dispute. In this case, the respondent did not comply with the Tribunal's order as it failed to provide the requested records, and the respondent has not provided an explanation about why it failed to comply with the Tribunal's order. I will address this issue further in my reasons below.
ANALYSIS
The applicant is entitled to NEBs of $185 per week from April 20, 2023 to March 20, 2025
16I find that the applicant has demonstrated that the NEBs of $185.00 per week from April 20, 2023 to March 20, 2025 is payable.
17The applicant is seeking entitlement to NEBs on the basis that the respondent did not comply with the requirements under section 36(4) and 36(6) of the Schedule. He submits that he is entitled to NEBs because the respondent failed to provide a denial notice.
18Section 36(4) of the Schedule provides that:
(4) Within ten business days after the insurer receives the application and completed disability certificate, the insurer shall,
a) pay the specified benefit;
b) give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or
c) send a request to the applicant under subsection 33(1) or (2).
19Should the requirements outlined in section 36(4) of the Schedule not be met, section 36(6) of the Schedule states:
If the insurer fails to comply with subsection (4) or (5) within the applicable time limit, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate, and ending, if the insurer subsequently gives a notice described in subsection (4)(b), on the day the insurer gives the notice.
20The applicant submits that he submitted an OCF-3 prepared by Dr. Chad Hefford, chiropractor, dated March 21, 2023, on April 24, 2023. The OCF-3 notes the applicant suffered a complete inability to carry on a normal life. The applicant argues the respondent did not provide a denial letter compliant with section 36(4) and 36(6) the Schedule or any formal denial of the NEB to date and therefore section 36(6) is triggered. The applicant relies on Jeffrey v. Travelers Insurance Company of Canada, 2023 CanLII 1442 (ON LAT) in which the adjudicator determined the procedural rules override entitlement rules.
21The respondent submits the applicant has not met his onus for entitlement and the insurer's denial is valid and complies with section 36(4) of the Schedule. The respondent argues that an applicant who qualifies for Income Replacement Benefits ("IRBs") would not qualify for NEBs pursuant to section 12(1) of the Schedule.
22The respondent relies on the explanation of benefit letter dated May 5, 2023 and submits in its sur-reply that the denial letter was sent to the applicant and his counsel by email dated May 5, 2023. The respondent provides a copy of an email that purportedly is evidence of its delivery to the applicant and his counsel. The respondent further relies on the letter dated May 19, 2023 that states, "We are in receipt of your Short Term Disability paystubs for the period of March 20th 2023 to April 30th 2023. We have calculated the Income Replacement Benefit for the period of March 27th 2023 to April 30th 2023 in the amount of $0.00."; however, this denial notice relates to the applicant's IRB application, not his NEB application.
23I find the applicant's OCF-3 was submitted to the respondent on April 24, 2023. As noted above, I draw an adverse inference with respect to the respondent not providing the May 5, 2023 denial letter until it filed its submissions and only providing purported evidence of delivery in its sur-reply. The respondent was ordered by the Tribunal, on consent, to produce the denial letter and evidence of its delivery for this hearing. The respondent did not provide this evidence to the applicant as directed by the CCRO. Both documents would confirm respondent's position regarding the NEB in accordance with section 36(4) of the Schedule. Having failed to provide the information as ordered and that it agreed to produce without explanation, I infer that the evidence is detrimental to the respondent's case.
24Specifically, I find that, although the respondent provided the May 5, 2023 denial with its submissions, this is prejudicial to the applicant because the applicant has not had an opportunity to review the email. As the respondent has not pointed me to evidence that the email was in fact delivered to the applicant's email or the applicant's representative's email address pursuant to section 36(4) of the Schedule and has not provided any evidence of a subsequent denial, the shall pay provisions of section 36(6) are triggered. The NEB is payable for the period claimed.
25For the reasons outlined above, I find that NEBs are payable in the amount of $185.00 per week for the period claimed, namely from April 20, 2023 to March 20, 2025.
Is the functional abilities assessment plan dated May 31, 2024 reasonable and necessary?
26I find that the applicant is not entitled to the functional abilities assessment.
27The applicant submits the respondent's denial notice is boilerplate and fails to comply with section 38(8) of the Schedule because the notice does not address the applicant's specific medical condition, fails to include the medical or other reasons forming the basis of the decision, and does not identify any information required from the applicant. The applicant relies on Stewart v. Travelers Insurance Company of Canada, 2022 CanLII 92733 (ON LAT) paragraphs [14] and [29], that state the applicant submitted the respondent failed to provide medical reasons to justify the denials, and the Adjudicator agreed with the respondent's submissions that specific details should be included in a denial.
28I find the denial letter is compliant with the requirements under section 38(8) of the Schedule.
29Section 38(8) and section 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 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.
30The applicant relies on Stewart; however, I find two disjointed paragraphs about an applicant's submission and an adjudicators decision are not informative, and in any event, I am bound by Tribunal caselaw.
31The respondent submits the treatment plan was denied based on the section 44 assessment dated April 5, 2024, prepared by Dr. James Stewart, family physician. The respondent relies on the denial notice dated June 3, 2024.
32Upon review, the denial letter refers to the benefit in dispute, including the amount, it clearly and unequivocally denies funding the assessment and provides a medical reason, specifically referring to the section 44 examination completed by Dr. Stewart, and that the applicant has reached maximum medical recovery, and provides other reasons with reference to the section 44 insurer's examination report noting the applicant does "not require any further investigation, consultations, medication or rehabilitation." I find that the denial notice is compliant with section 38(8).
33As the denial notice is compliant with section 38(8) the benefit is not payable under section 38(11).
Is the functional abilities assessment reasonable and necessary?
34I find that the applicant has not demonstrated that the functional abilities assessment is reasonable and necessary as a result of the accident.
35The purpose of an assessment is to determine whether a condition still exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
36The applicant also submits the functional assessment dated May 31, 2024, proposed by Dr. John Balkansky, chiropractor, is reasonable and necessary. Dr. Balkansky, lists the applicant's injuries include dislocation, sprain, strain of joints and ligaments of lumbar spine and pelvis, cervical spine, ligaments of thorax, joints and ligaments of shoulder girdle, other anxiety disorders, sleep disorders, injury of hip and tendon at hip and thigh level. The goal of the plan includes pain reduction, increased range of motion, increase in strength, and the assessment is necessary to determine his functional status and limitations to propose appropriate recommendations for a possible return to daily life activities. Progress will be evaluated upon implementation of treatment recommendations. The plan includes functional ability evaluation and documentation support activity.
37The respondent submits the applicant's medical evidence is inconsistent about his functional abilities and the medical evidence contains contradictory findings. The respondent relies on the section 44 multidisciplinary reports dated January 5, 2024 and April 5, 2024.
38I am not persuaded by the evidence that the functional abilities assessment is reasonable and necessary as a result of the accident. In this case, the section 25 reports note the applicant suffered psychological impairments and that his physical injuries are treatable through occupational therapy, patient education, and rehabilitation of both passive and active modalities. In my view, the applicant's evidence does not demonstrate his physical condition and functioning is limited or preclude him from completing his daily tasks or his employment and so it follows that it would not be reasonable and necessary to assess him from a functional abilities perspective.
39The section 44 reports note the applicant suffered psychological injuries as a result of the accident; however, he is able to complete his personal care tasks independently and without any restrictions. I place weight on the section 44 multidisciplinary reports dated January 5, 2024 and April 5, 2024 because the applicant continues with his employment without restriction and he has not directed me to grounds on which to believe a condition still exists that would warrant further investigation by way of an investigation.
40Accordingly, I find on a balance of probabilities that the applicant has not demonstrated that the functional ability assessment is reasonable and necessary as a result of the accident.
Chronic pain assessment dated January 17, 2024
41I find that the applicant has demonstrated that a chronic pain assessment is reasonable and necessary as a result of the accident.
42The applicant submits the chronic pain assessment dated January 17, 2024 is reasonable and necessary. The chronic pain assessment proposed by Dr. Chad Hefford, chiropractor, lists the same injuries as the functional assessment plan. The goal of the plan is to evaluate the extent of chronic injuries and psychological complaints, to make recommendations for recovery, and to return to activities of daily living. The applicant's progress will be determined based on the outcome of the assessment and the recommended care. The plan includes documentation, support activity, and the assessment.
43The respondent submits the applicant has not met his onus and chronic pain assessment is not reasonable and necessary based on the section 44 reports prepared by Dr. Stewart and Dr. Kelly McCutcheon, psychologist.
44The multidisciplinary section 44 report by Dr. Stewart concluded the applicant endorses the presence of pain symptoms, however, his injuries have fully resolved, he has reached maximum medical improvement, and there is no evidence of physical pathology, injury, or organic musculoskeletal cause for the reported symptoms. However, the respondent's submission is silent on the issue of the applicant's ongoing pain reported to his primary care giver.
45I am persuaded by the clinical notes and records ("CNRs") of Dr. Salah Alshami, physician, that note the applicant was experiencing ongoing pain symptoms in his upper and lower back, shoulders, and upper arms on March 22, 2023, April 17, 2023, June 10, 2023, and August 21, 2024 as a result of the accident and consistently over a period of approximately eighteen months after the accident. In addition, the section 25 reports of Dr. Lance Majl, neurologist, and Dr. Balkansky, also recommend a chronic pain assessment as a result of his ongoing complaints of pain.
46In my view, the evidence of Dr. Alshami, Dr. Majl and Dr. Balkansky supports a finding that the applicant has accident-related pain that warrants further investigation by way of an assessment.
47Accordingly, I find on a balance of probabilities, that the chronic pain assessment plan is reasonable and necessary.
Interest
48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
49Having found that the NEB is payable, and the applicant is also entitled to the chronic pain assessment, it follows that he is also entitled to interest for these benefits.
Award
50The applicant sought an award under section 10 of Regulation 664. Under section 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. 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 threshold.
51The applicant submits that an award in the amount of $500.00 is warranted for the respondent's sharp practice and willfully misleading the applicant by not disclosing the NEB denial letter in accordance with the CCRO production order.
52The respondent submits that it did not unreasonably withhold or delay payment of benefits or act in bad faith and the denial letter was not provided to the applicant due to an inadvertent error. An insurer is not held to a standard of perfection, but rather, it should be held to a standard of reasonableness. The purpose of an award is to make an insurer accountable for misconduct and to deter it and others from future similar acts.
53I find that the case law has established that an award should be granted only where there is unreasonable behaviour from an insurer in withholding or delaying payments, which can be seen as excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
54I find the applicant has not met his onus to prove, on a balance of probabilities, that the respondent unreasonably withheld or delayed the benefits in dispute, and an award is not appropriate.
55Accordingly, I find no award payable.
Costs
56Rule 19.1 of the Rules provides for the Tribunal to order costs where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.5 lists the factors to consider when adjudicating a request for costs.
57The respondent requests costs in the amount of $500.00.
58The respondent submits the applicant acted in bad faith because he argues in his reply submissions that he did not receive a denial letter from the respondent.
59In my view, there are no grounds for costs. First, the applicant requested, on consent, a copy of the May 5, 2023 denial letter and evidence of its delivery. Second, the respondent did not produce that evidence as ordered by the Tribunal. Third, I have found that the NEB is payable for the reasons set out above. There is no evidence of bad faith on the part of the applicant that would attract costs as requested by the respondent.
60For the reasons outlined above, I decline to award costs.
ORDER
61The NEB is payable in the amount of $185.00 per week from April 20, 2023 to March 20, 2025.
62The applicant is not entitled to the functional abilities assessment.
63The applicant is entitled to the chronic pain assessment.
64The applicant is entitled to interest pursuant to section 51 of the Schedule, with respect to his claims for NEB and the chronic pain assessment.
65The respondent is not liable to pay an award.
66No costs are payable.
Released: April 2, 2026
Aric Bhargava
Adjudicator