Dabrowski v. Definity Insurance Company, 2026 CanLII 333

Citation: Dabrowski v. Definity Insurance Company, 2026 ONLAT 24-003986/AABS

Licence Appeal Tribunal File Number: 24-003986/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:

Donna Dabrowski Applicant

and

Definity Insurance Company Respondent

DECISION

ADJUDICATOR: John Mazzilli

APPEARANCES:

For the Applicant: Michael Hazan, Counsel

For the Respondent: Ainsley Shannon, Counsel

HEARD: By way of written submissions

OVERVIEW

1Donna Dabrowski, (“the applicant”), was involved in an automobile accident on December 14, 2018, 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 Definity Insurance Company (“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. Is the applicant entitled to $1,818.25 for chiropractic services, proposed by Healthwise Physiotherapy in a treatment plan/OCF-18 (“plan”) submitted September 4, 2023, and denied September 18, 2023?

ii. Is the applicant entitled to $1,000.00 in costs from the respondent?

3In her motion submissions the applicant sought to add costs in the amount of $1,000.00 from the respondent.

RESULT

4The applicant is not entitled to $1,818.25 for chiropractic services.

5The respondent is not liable to pay costs in the amount of $1,000.00 to the applicant.

6The application is dismissed.

PROCEDURAL ISSUES

Respondent’s Notice of Motion-Page Limits

7The respondent’s request for the Tribunal to consider an additional 4 and half pages of submissions is denied.

8In her reply to submissions the applicant objected to the respondent’s hearing submissions that are 14 and a half pages in length which exceeds the 10-page limit set out in the Case Conference Report and Order (“CCRO”) dated August 13, 2024. The applicant submits that it would be procedurally unfair for me to consider an additional 4 and half pages from the respondent and that the motion should be dismissed with costs of $1,000.00 payable to the applicant from the respondent for the frivolous nature of the request.

9In response the respondent filed a Notice of Motion with the Tribunal requesting the Tribunal consider the entirety of its submissions and argues that this would not prejudice the applicant because the 4 and half extra pages relate to its advancement of Res Judicata, which it argues could have been addressed by the applicant in her reply to submissions and therefore there is no prejudice to the applicant.

10I find that the respondent’s submissions are in breach of the CCRO, and I have considered the factors under The Licence Appeal Tribunal Rules and in accordance with Rule 9.3 I will only consider the first 10 pages of the respondent’s submissions in my deliberation. This matter involves one treatment plan, and I find allowing 14 and a half pages is disproportionate and further does not adhere to Rule 3.1 to ensure efficiency and proportionality of the issues in dispute, therefore in my view an extension of the limits set out in the CCRO is not warranted.

11The respondent’s request for the Tribunal to consider an additional 4 and half pages of submissions is denied. I will address the applicant’s request for costs below in my decision.

ANALYSIS

The disputed plan

12I find that the applicant is not entitled to $1,818.25 for chiropractic services because it is not reasonable and necessary.

13To receive payment for a treatment and assessment plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

14The applicant submits that the plan is reasonable and necessary because of her consistent attendance for treatment, which are necessary interventions for her everyday functioning despite the respondent’s denial. She submits that the applicant was removed from the MIG and that the respondent ought to have approved this inexpensive treatment plan.

15The respondent argues that the application should be dismissed pursuant to the doctrine of res judicata as the applicant seeks to re-litigate an issue that has already been decided by the Tribunal file number (21-006545/AABS). The respondent argues that the applicant has reached maximum medical recovery from her accident-related myofascial injuries to her back and neck and therefore the disputed treatment plan is not reasonable and necessary. The respondent continues to attend chiropractic treatment for issues unrelated to the subject accident that are not identified on the OCF-3 or OCF-18 in dispute. The respondent relies on the orthopedic surgeon’s addendum report of Dr. Weisleder, dated May 30, 2022.

16The burden of proof lies on the applicant to prove entitlement to the disputed treatment plan. The applicant only provided the Tribunal with LAT case law as her submissions, and did not point or direct me to any contemporaneous corroborating evidence to support her claim to the disputed OCF-18 for chiropractic services, therefore she has not met her onus to establish that the plan is reasonable or necessary.

17I find on a balance of probabilities that the applicant is not entitled to $1,818.25 for chiropractic services because it is not reasonable and necessary.

Applicant sought costs of $1,000.00 from the respondent

18I find that the applicant is not entitled to $1,000.00 in costs from the respondent.

19Rule 19.5 states that in considering whether to award costs, I must consider all relevant factors, including the seriousness of the misconduct, whether the conduct was in breach of a direction or order issued by the Tribunal, whether a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, prejudice to other parties and the potential impact an order for costs would have on individuals accessing the Tribunal system.

20The applicant submits that the respondent’s motion was unnecessary and costly because it did not comply with the CCRO requirement of the 10-page limit when it submitted its hearing materials. The applicant submits that the respondent’s motion should be dismissed with costs of $1,000.00 payable to her given the frivolous nature of the respondent’s motion.

21The respondent did not address the applicant’s request for costs in its motion submissions.

22I find that the respondent is not liable to pay costs to the applicant in the amount of $1,000.00 because the respondent simply requested additional pages in its Notice of Motion which did not interfere with the Tribunal’s ability to carry out a fair, efficient and effective process. I was not persuaded of conduct on the part of the respondent that was unreasonable, frivolous, vexatious or in bad faith.

23I find that the applicant is not entitled to $1,000.00 in costs from the respondent.

Interest

24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, interest is not owing.

ORDER

25It is ordered that:

i. The applicant is not entitled to $1,818.25 for chiropractic services. As no benefits are owing, interest is not owing.

ii. The respondent is not liable to pay $1,000.00 in costs to the applicant.

iii. The application is dismissed.