Licence Appeal Tribunal File Number: 24-011270/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:
Altayeb Bashir Dondi
Applicant
And
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Jeton Memeti, Paralegal
For the Respondent:
Ashley Dunkley, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Altayeb Bashir Dondi, the applicant, was involved in an automobile accident on November 23, 2021, 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The preliminary issue in dispute is:
- Is the applicant barred from proceeding to a hearing for income replacement benefits (“IRB”) because he made a material misrepresentation that induced the insurer to enter into a contract of automobile insurance and intentionally failed to notify the insurer of a change in a risk material to the contract, in accordance with s. 31(1)(b) of the Schedule?
SUBSTANTIVE ISSUES
3The issues in dispute are:
Is the applicant entitled to an IRB in the amount of $400.00 per week from December 1, 2021, to March 31, 2022?
Is the applicant entitled to $3,926.00 for chiropractic services, proposed by Oxford Spine Centre in a treatment plan/OCF-18 (“plan”) dated September 27, 2022?
Is the applicant entitled to $5,914.00 for chiropractic services, proposed by Oxford Spine Centre in a plan dated December 24, 2022?
Is the applicant entitled to $2,674.70 for an orthopedic assessment, proposed by Mississauga Rehab and Sports Injury Clinic in a plan dated November 22, 2022?
Is the applicant entitled to $11,359.95 for a chronic pain program, proposed by Mississauga Rehab and Sports Injury Clinic in a plan dated March 9, 2023?
Is the applicant entitled to $2,720.00 for physiotherapy services, proposed by Oxford Spine Centre in a plan dated May 15, 2023?
Is the applicant entitled to $5,690.00 for physiotherapy services, proposed by Oxford Spine Centre in a plan dated November 6, 2023?
Is the applicant entitled to $528.18 for psychological services proposed by Psychology Health Solutions, in a plan dated May 28, 2024?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent entitled to costs pursuant to Rule 19 of the Licence Appeal Tribunal (“LAT”) Rules?
4Since the case conference the applicant was removed from the Minor Injury Guideline. Consequently, this issue will not be addressed in this decision.
RESULT
5After reviewing both parties’ submissions and evidence, I find as follows:
The applicant is not barred from proceeding with his claim for an IRB pursuant to s. 31(1)(b) of the Schedule.
The applicant is not entitled to an IRB in the amount of $400.00 per week from December 1, 2021, to March 31, 2022.
The applicant is not entitled to the OCF-18s in dispute, interest or an award.
The respondent is not entitled to costs pursuant to Rule 19 of the LAT Rules.
ANALYSIS
The applicant is not barred from proceeding with his claim for an IRB pursuant to s. 31(1)(b) of the Schedule.
6Section 31(1)(b) of the Schedule supports that an insurer is not required to pay a specified benefit in respect of any person who has made, or who knows of, a material misrepresentation that induced the insurer to enter into the contract of automobile insurance or who intentionally failed to notify the insurer of a change in a risk material to the contract. The onus is on the respondent to prove on a balance of probabilities that the applicant made a material misrepresentation that induced it to enter the contract of insurance or failed to advise of a change in risk material to the contract.
7The respondent directed me to the Tribunal’s decision in Primmum Insurance Company v. Baley-Daley (“Primmum”), 2015 CanLII 154395 (ON LAT), which defined misrepresentation as “any manifestation of words or conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts.”
8The respondent argues that it does not issue policies to anyone who wishes to use their vehicle for commercial (work-related) purposes. As a result, in order for the applicant to have obtained his policy he would have had to confirm that he was not using his vehicle for work-related purposes. It maintains that when the applicant entered his contract for insurance, he did not disclose that he was driving for Uber, and his Uber Tax receipts confirm that he drove hundreds of kilometers during certain time periods of his insurance coverage. Consequently, the applicant made a material misrepresentation by failing to disclose that he was using (or was going to use) his vehicle for employment. The respondent relies on the Tribunal’s decision in TD Insurance Company v. Haribalan (“Haribalan”), 2024 CanLII 23454 (ON LAT), where the adjudicator found that the insured was disqualified from receiving a non-earner benefit because they did not disclose to the insurer that the vehicle would be used for any commercial purpose (driving an Uber).
9The applicant submits that he did not intentionally make a material misrepresentation when entering his contract of insurance. He asserts that he disclosed on his application for accident benefits (“OCF-1”) that he was working for Uber prior to the accident. In response to his OCF-1 the respondent advised him that he was entitled to an IRB and requested that he submit a disability certificate (“OCF-3”). The applicant submitted an OCF-3 and the respondent indicated that his IRB entitlement was under review and requested employment documents despite being aware that he was working for Uber and it never raised the s. 31 exclusion. On July 5, 2022, the respondent denied the applicant’s entitlement to an IRB for failing to notify it of a material risk but did not reference the section of the Schedule relied upon or enclose or refer to the insurance policy. The applicant also relies on the above-noted Primmum decision where the adjudicator determined that in order for the s. 31 exclusion to apply the insurer must prove deliberate or intentional action. The applicant also submits that the facts in Haribalan are distinguishable from this case because there was an actual failure to disclose or deliberate concealment of material risk.
10I find the respondent has not met its onus in proving that the applicant is barred from proceeding with his claim for IRBs pursuant to s. 31(1)(b) of the Schedule for the following reasons.
11First, I find the respondent has not provided any evidence in support of its position that it does not provide insurance for vehicles used for commercial purposes or that the applicant was made aware of same. While this may be true, submissions are not evidence.
12Second, I agree with the applicant that the facts set out in Haribalan are distinguishable from this case. For example, in Haribalan the adjudicator had evidence of a recorded binding call between the insured and the insurer which resulted in the insurance contract. During the recorded call, the insured confirmed that they would not be using their vehicle for commercial purposes. The insured in that case also misrepresented several other facts regarding being the registered owner and financing of the vehicle. The insurer also advised the insured that they must inform it of any changes such as drivers, uses and mileage to which the insured agreed that they understood. I find the adjudicator had evidence before them that the insured deliberately misrepresented several facts which were not true. In this case, I have not been pointed to evidence of the insurance contract entered into by the parties and or any recorded phone or log notes confirming the applicant’s insurance contract or that the applicant intentionally misrepresented anything.
13Finally, I was not pointed to evidence that the applicant intentionally deceived the respondent regarding his Uber employment. In fact, I find the applicant disclosed it when he filed his application for accident benefits. Although I agree with the respondent that the applicant should have reported this material change in risk once he became employed with Uber, with the onus on the respondent, I have not been pointed to evidence that he was advised of his obligation to do so.
14For the above-noted reasons, I find that the respondent has not met its onus in proving that the applicant is barred from proceeding with his claim for IRBs pursuant to s. 31(1)(b) of the Schedule. However, if I am wrong in my analysis of this it would have no bearing on the outcome of this decision because the applicant has not met his onus in proving entitlement to IRBs which I will discuss next.
The applicant is not entitled to an IRB in the amount of $400.00 per week from December 1, 2021, to March 31, 2022.
15To receive payment for an IRB under s.5(1) of the Schedule, the applicant must be employed or self-employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant bears the burden of proving, on a balance of probabilities, that he meets the test for entitlement.
16The applicant argues that he sustained physical and psychological impairments as a result of the accident which has resulted in a substantial inability to perform the essential tasks of his employment as an Uber driver. The applicant relies on the Uber tax summaries, T1 Generals and Canada Revenue Agency assessments between 2016 to 2023.
17The respondent submits that the applicant has not met his onus as he has not provided any submissions addressing the time period he is claiming an IRB. Further, the financial records establish that he made more money following the accident. As a result, he did not suffer a substantial inability to perform the essential tasks of his employment. In addition, the applicant’s representative advised the respondent in January 2023 that he was not pursuing an IRB, and he did not submit an employment confirmation form (”OCF-2”) to properly apply for the benefit. Finally, it asserts the applicant did not meet his burden by explaining in his submissions how he meets the test as required by s.5 of the Schedule. Instead, he simply relies on the income documentation which does not speak to the legal test.
18I find the applicant has not met his onus on a balance of probabilities in proving entitlement to an IRB for the following reasons.
19First, I find that other than indicating that he cannot work because of his physical and psychological impairments, his submissions do not articulate how these impairments result in a substantial inability to carry out the essential tasks of his employment. Although his submissions provide a summary of the medical records he does not specifically refer to the medical records relied upon in support of his position that he is unable to work. Nor do his submissions highlight what the essential tasks of his employment are and what specific impairments result in a substantial inability to work. In addition, the applicant refers to various financial records in support of his entitlement to an IRB but does not explain how these financial records support his entitlement. It would be inappropriate for me to review these records and make the applicant’s case for him.
20Second, I find the Uber records do not establish an income loss for the time period in dispute. For example, these records confirm that two months prior to the accident he did not receive any income. Between November 2021 and March 2022, there was a steady increase in income per month. I find the applicant has failed to prove an income loss for the time period in dispute and that based on the evidence before me he returned to work in his pre-accident capacity.
21Third, I find the medical evidence insufficient to support that the applicant suffers a substantial inability to carry out the essential tasks of his employment for the time period in dispute. For example, he did not seek medical attention until March 17, 2022, where he visited Dr. Naeem, his family doctor and complained of neck and back pain and having a sore back after a few hours of driving. The CNR noted that he was active, alert and cheerful and his range of motion was normal. I find there is nothing in this note which establishes that he was unable to work. The applicant attended this clinic four additional times between March and July 2022, where he complained of abdominal pain and sadness due to the passing of his father. I find these complaints to be unrelated to the accident. Further, these notes do not comment on any accident-related issues or his inability to work.
22Finally, the applicant also relies on the orthopaedic report of Dr. Ogilvie Harris who diagnosed him with chronic pain syndrome. However, I find this report unhelpful in supporting that he meets the test for IRBs because it was completed in December 2022, which post-dates the time period in dispute. In addition, the report notes that he continues to work for Uber, works 8 hours a day and experiences pain while driving. I find this report unpersuasive that the applicant suffers from chronic pain which has resulted in a substantial inability to carry out the essential tasks of his employment. I also find this report has additional limitations which I will discuss further below.
23For the above-noted reasons, I find the applicant has not met his onus in proving on a balance of probabilities that he is entitled to an IRB for the time period in dispute.
The applicant is not entitled to $2,674.70 for an orthopedic assessment proposed in an OCF-18 dated November 22, 2022.
24Section 25(1) of the Schedule provides that an insurer shall pay for reasonable fees to complete an assessment. Section 25(5)(a) limits the cost of any one assessment or examination to $2,000.00. The applicant bears the onus of proving on a balance of probabilities that the assessment is reasonable and necessary. The jurisprudence also supports that to prove that an assessment is reasonable and necessary the applicant must have evidence that he has an accident-related impairment which the assessment is meant to address.
25The OCF-18 was authored by Dr. Ogilvie Harris, and the goal was pain reduction, and increase strength and ROM in order to return the applicant to his normal activities and to identify impairment and help achieve maximum medical recovery. The cost of the OCF-18 was $2,674.70.
26The applicant argues that orthopedic assessment is reasonable and necessary because he incurred the assessment in which Dr. Ogilvie Harris determined that he has ongoing neck, back, and sacroiliac pain. The doctor also diagnosed him with chronic pain syndrome with central sensitization which resulted in functional limitations in his daily activities and vocation. He relies on the above-noted report of Dr. Ogilvie Harris and submits that I should prefer this doctor’s opinion over Dr. Berbrayer (the respondent’s assessor) because they utilized diagnostic criteria such as testing Waddell’s signs and validated chronic pain criteria in reaching their diagnosis and opinion. Further, Dr. Berbrayer did not consider the psychosocial sequelae nor the long-term medical records in rendering their opinion.
27The respondent argues that from a physical perspective, the applicant sustained a minor injury. It submits that its position is supported by the lack of any complaints in the CNRs of Dr. Naeem in the first-year post-accident. It also relies on the IE report of Dr. Berbrayer who determined that the applicant sustained uncomplicated soft tissue injuries as a result of the accident and that an orthopedic assessment was not reasonable and necessary. It also argues that Dr. Ogilvie-Harris’ report is flawed because the doctor makes a comment about the applicant’s functional limitations in his ability to engage in housekeeping and social activities, however this is not mentioned in any other record. Further, the doctor notes that the applicant scored 58/150 on the Pain Disability Questionnaire which revealed mild pain related functional limitations. The doctor also concluded that the applicant sustained soft tissue injuries which was consistent with Dr. Berbrayer’s opinion. Despite this, Dr. Ogilvie-Harris concluded that the applicant suffers from chronic pain syndrome as a result of the accident with no further explanation or analysis.
28I find the applicant has not established entitlement to the OCF-18 for the orthopedic assessment for the following reasons.
29First, as highlighted above, there is very little in the medical record prior to the OCF-18 being submitted in November 2022, which demonstrates that the applicant had any significant physical impairment which would require an orthopedic assessment. I find there is a significant gap in the records before this OCF-18 was submitted. I find the most relevant medical evidence is the medical evidence available at the time the OCF-18 was submitted. For this reason, I give the CNRs from 2023 and 2024 less weight.
30Second, I do not find the report and opinion of Dr. Ogilvie Harris persuasive because he reviewed very few CNRs which pre-dated the assessment which establish that the applicant suffers from ongoing physical pain or physical impairment which would warrant the assessment. Based on the medical record before me, I find that there are very few CNRs in the first-year post-accident which note any complaints of physical pain or impairment. For this reason, I assign the applicant’s subsequent increase in pain complaints in the family doctor’s CNRs in 2023 and 2024 less weight. The doctor’s physical examination also revealed normal range of motion (“ROM”) of the cervical and lumbar spine. I also find Dr. Ogilvie-Harris opinion that the applicant meets five out of the six criteria (except for abusing prescription drugs) set out in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”) to support a diagnosis of chronic pain syndrome to be unsubstantiated. The doctor does not provide any analysis of the other five criteria or discuss how the applicant’s medical records support that he meets those criteria. Moreover, I find the applicant’s results on the pain disability scales administered by the doctor inconsistent. For example, the applicant scored in the moderate to severe range on the World Health Disability Assessment, however, his results on the Pain Disability Questionnaire revealed mild pain related functional impairments. I find these results inconsistent and unexplained by the doctor.
31I prefer the IE report of Dr. Berbrayer because similar to Dr. Ogilvie Harris, the doctor conducted a physical examination which was normal. The doctor concluded that the applicant sustained uncomplicated soft tissue injuries and that a further assessment was not required. I prefer the doctor’s opinion because it is consistent with the medical evidence before me prior to the submission of the OCF-18.
The applicant is not entitled to the five OCF-18s for the chronic pain program, chiropractic treatment or physical therapy.
32To receive payment for an OCF-18 under s. 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.
33The applicant argues that he is entitled to the OCF-18s for a chronic pain program because it was recommended by Dr. Ogilvie-Harris based on diagnostic evidence of chronic pain/central sensitization. He also submits that he is entitled to the OCF-18s recommending chiropractic treatment and physiotherapy because he was removed from the MIG and ongoing treatment is supported by treating records and expert consensus.
34The respondent submits that the applicant has not met his onus in proving that he is entitled to the benefits in dispute. It maintains that the applicant’s submissions make reference to attending extensive conservative treatment including physiotherapy. However, he did not submit any physical therapy session notes to support that he has received any benefit from past treatment. Therefore, I should draw an adverse inference from the applicant’s failure to rely on these records.
35Since the goals of the OCF-18s for the chronic pain program, chiropractic treatment and physiotherapy all set out similar goals (i.e. reduction of pain, increase strength and ROM) and involves the same evidence I will address these OCF-18s together. I find the applicant has not met his onus in proving on a balance of probabilities that he is entitled to the OCF-18s for a chronic pain program, chiropractic treatment or physiotherapy for the following reasons.
36First, I find the fact that the applicant was removed from the MIG as a result of a psychological impairment does not prove that the OCF-18s proposing various physical treatment are reasonable and necessary.
37Second, as noted above, I find there is a significant gap in the CNRs of the family doctor where the applicant does not make any complaints of physical pain or physical impairment. For this reason, I have given the report and chronic pain diagnosis of Dr. Ogilvie Harris little weight. Moreover, both Dr. Ogilvie Harris and Dr. Berbrayer’s physical examination established that the applicant’s ROM was normal. Consequently, I find the goal of the OCF-18 to increase the applicant’s ROM to be redundant.
38Third, I find the applicant has not pointed me to any evidence to prove that any past treatment has resulted in pain relief or an increase in strength. I do draw an adverse inference from the applicant’s failure to rely on the CNRs of his treating clinic. In my view, these were not relied upon because they likely would not support the applicant’s position. Nor did the applicant’s submissions address the cost or breakdown of the various OCF-18s.
39For the above noted reasons, I find that the applicant has not met his onus in proving on a balance of probabilities that the OCF-18s for a chronic pain program, chiropractic treatment or physiotherapy are reasonable and necessary.
The applicant is not entitled to $528.18 for the partially denied portion of the OCF-18 for psychological services.
40The applicant’s submissions did not address why the partially denied portion of the OCF-18 for psychological treatment is reasonable and necessary. I conclude that he has not met his onus in proving on a balance of probabilities that he is entitled to the balance of $528.18.
The applicant is not entitled to Interest
41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest because I have not determined that any benefits are overdue.
The applicant is not entitled to an award
42The 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. The applicant submits that he is entitled to an award because the respondent’s denials have resulted in delays in his entitlement to benefits. In light of my decision in this matter, I find that an award is not warranted in this case because I have not determined that any benefits were unreasonably withheld or that there was a delay in payment of benefits.
The respondent is not entitled to costs
43Under Rule 19, the Tribunal may grant costs if it finds that a party acted unreasonable, frivolously, vexatiously or in bad faith. In deciding whether to award costs, several factors are to be considered by the Tribunal: the seriousness of the conduct, whether the conduct was in breach of a Tribunal order, whether the behaviour interfered with the Tribunal’s ability to carry out a fair, efficient and effective process, prejudice to the other party, and the potential impact a costs order would have on individuals accessing the Tribunal system.
44The respondent argues that it is entitled to costs because the applicant withdrew a previous application disputing his entitlement to IRBs and the OCF-18 for psychological assessment and the matter was scheduled for a written hearing and he withdrew the application after his submissions were due. The respondent maintains that this matter could have been dealt with expeditiously in 2024, and the withdrawal resulted in a waste of public funded resources. The respondent submits that this conduct should be deterred and seeks costs in the amount of $1,000.
45The applicant submits that costs are not justified simply because he withdrew his appeal previously.
46I find that it has been established by this Tribunal that costs are not appropriate where an insured withdraws an application. I find the respondent has not demonstrated that the applicant acted unreasonably, frivolously or vexatiously or in bad faith. I find that costs are an exceptional remedy and are not warranted in this case.
ORDER
47For all of the above-noted reasons, I order as follows:
The applicant is not barred from proceeding with his claim for an IRB pursuant to s. 31(1)(b) of the Schedule.
The applicant is not entitled to an IRB in the amount of $400.00 per week from December 1, 2021, to March 31, 2022.
The applicant is not entitled to the OCF-18s in dispute, interest or an award.
The respondent is not entitled to costs pursuant to Rule 19 of the LAT Rules.
Released: April 15, 2026
Rebecca Hines
Adjudicator