Citation: Dastous v. Unifund Assurance Company, 2026 ONLAT 25-006044/AABS

Licence Appeal Tribunal File Number: 25-006044/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:

Sheri L Dastous

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR:

Tami Cogan

APPEARANCES:

For the Applicant:

Sheri Dastous, Applicant (Self-Represented)

For the Respondent:

Odette Ansell, Counsel

Court Reporter:

Lynn Jefferson

HEARD by Videoconference:

February 17, 2026

OVERVIEW

1Sheri Dastous, the applicant, was involved in an automobile accident on April 21, 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, Unifund Assurance Company, 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 May 20, 2023, to present?

ii. 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?

iii. Is the applicant entitled to $798.00 ($1,072.50 less $274.50 approved) for physiotherapy services, proposed by High Performance Recovery Inc. O/A Podium Sports Therapy Clinic in a treatment plan/OCF-18 (“plan”) dated April 4, 2024, and submitted on April 11, 2024?

iv. Is the applicant entitled to $1,072.50 for physiotherapy services, proposed by High Performance Recovery Inc. O/A Podium Sports Therapy Clinic in a plan dated June 4, 2024, and submitted June 4, 2024?

RESULT

3I have considered the evidence to which I was directed, and the submissions of the parties, and I find the following:

i. The applicant is not entitled to NEB.

ii. 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.

iii. The applicant is not entitled to the treatment plans in dispute, because they are above the MIG limit for medical and rehabilitation treatment.

ANALYSIS

Non-Earner Benefits

4I find the applicant is not entitled to NEB for the reasons that follow.

5Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104-weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

6The test for an NEB is set out in the Court of Appeal decision of Heath v. Economical Mutual Insurance Company 2009 ONCA 391 (“Heath”), which generally focuses on a comparison of the applicant’s pre- and post-accident activities;

i. A comparison between the applicant’s activities and life circumstances before and after the accident.

ii. Assessing the applicant’s activities and life circumstances requires more than a snapshot in time but involves assessing it over a reasonable period prior to the accident and the duration after is case specific.

iii. In proving “substantially all” requires looking at all the applicant’s pre-accident activities and life circumstances but greater emphasis can be placed on the ones that matter the most to the applicant.

iv. “Continuously prevents” means that it’s of a nature, extent or degree that is and remains uninterrupted.

v. “Engaging in” refers to a qualitative perspective – going through the motions may not be “engaging in,” and if doing the activity is sufficiently restricted then it’s not “engaging in”.

vi. If pain is a primary factor that prevents the applicant from engaging in their pre-accident activities, the question is not whether the applicant can physically do the acts, but are they practically prevented from engaging in those activities?

7The applicant submits that before the accident her injuries were cognitive and involved only headaches and fatigue. The applicant relies on the Attending Medical Practitioner’s Assessments for the Healthcare of Ontario Pension Plan from August 15, 2022, and July 5, 2024, to demonstrate that after the accident she had an additional impairment in her joint mobility and was referred to an orthopaedic surgeon for surgery on her hip due to a labral tear. She submits that it is not normal for a 40-year-old person to rely on family and friends and need help with everything including meal preparation.

8The respondent submits that the applicant has not met her burden of proof that she suffers a complete inability to carry on a normal life as a result of and within 104-weeks after the accident. The evidence shows that before the accident she had significant limitations in her functional abilities and has not led evidence of any significant changes after the accident.

9I was directed to the Attending Medical Practitioner’s Assessments for the Healthcare of Ontario Pension Plan from August 15, 2022, and July 5, 2024, by both parties. The 2022 document supports that the applicant had post-concussion syndrome with functional limitations in the following areas: Hearing, equilibrium, vision, mood changes, coping with stress, concentration, exertion, stamina, standing, lifting, coordination, memory/thinking pain, eating, and driving. The applicant’s expected date to resume full work duties is “unknown”. In 2024 all of these limitations remained, but joint motion was added, with a secondary diagnosis of hip labral tear, TMJ dysfunction, and a rotary cuff injury. The expected date to resume full work duties remains “unknown”. An assessment was pending for arthroscopic surgery, however there is no indication for which condition. I find the comparison of these two documents is of limited assistance because there are only checked boxes without any detail regarding the level or nature of the applicant’s functional abilities.

10I find the Questionnaire for Disability Benefits, Canada Pension Plan dated April 22, 2012, does provide more detail regarding the applicant’s functional limitations at that time. The applicant testified that the descriptions were accurate at the time the document was completed, but that she was improving before the accident. I have not heard testimony, or been directed to evidence upon which I can make a meaningful comparison between pre and post accident activities.

11The applicant made submissions that she needs help “with everything”, however, I have not heard evidence as to how the injuries she suffered in the accident are causing her limitations, or how these limitations are different than before the accident.

12Since I am unable to make a meaningful comparison in accordance with Heath, I am unable to determine if the applicant has a “complete inability to carry on a normal life” pursuant to s. 3(7)(a) of the Schedule.

13I find the applicant has not proven on a balance of probabilities that she suffers a complete inability to carry on a normal life as a result of and within 104-weeks after the accident. It follows that she is not entitled to NEB.

Minor Injury Guideline

14I find the applicant’s injuries are minor injuries as defined by the Schedule, and therefore the applicant remains subject to the MIG limits for treatment.

15Section 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.”

16The applicant submits that she has sustained a labral tear in her right hip, which is not a minor injury, because the condition can worsen if treatment is stopped, and therefore, she should be removed from the MIG.

17The respondent submits that the limited evidence suggests the injury is a partial labral tear, which does fall within the definition of a minor injury, and the applicant has not met her onus to prove she has suffered an injury that would remove her from the MIG.

18I find the most persuasive evidence to which I have been directed is the May 2, 2024 MRI report. The findings of the report indicate “There is a suspected partial thickness tear through the superior labrum…”. The applicant testified that she has been referred to an orthopaedic assessment for surgery, which is supported by the July 5, 2024 Attending Medical Practitioner’s Assessments for the Healthcare of Ontario Pension Plan. However, there are no medical records in evidence that the orthopaedic surgeon has or will recommend surgical intervention.

19I heard evidence only regarding the injury to the applicant’s right hip. The applicant has not directed me to any caselaw or authority to support the position that a partial thickness labrum tear is a non-minor injury. Also, that without the orthopedic surgeon’s medical records, the applicant hasn’t established the severity of the impairment. I find that case law is well established at the Tribunal that a partial tear is classified as a minor injury. Section 3(1) provides the following definitions:

“[M]inor injury” means 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;

“[S]prain” means an injury to one or more tendons or ligaments or to one or more of each, including a partial but not a complete tear;

“[S]train” means an injury to one or more muscles, including a partial but not a complete tear.

20Therefore, based on the evidence before me, the applicant remains in the MIG because her right hip partial labrum tear injury is defined as a minor injury.

21I find the applicant has not established on a balance of probabilities that her injuries are not predominately minor. Therefore, she remains subject to the MIG funding limit of $3,500.00.

22As I have found that the applicant has not established that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.

23I have found that the applicant’s injuries are predominately minor, and treatment is subject to the MIG limits. For this reason, the applicant is not entitled to the treatment and assessment plans in dispute.

ORDER

24For the reasons above, I find:

i. The applicant is not entitled to NEB.

ii. The applicant’s injuries are within the MIG and subject to a $3,500.00 limit for medical and rehabilitation benefits.

iii. The applicant is not entitled to the disputed treatment plans.