Licence Appeal Tribunal File Number: 24-006099/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:
Maryam Aly
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Rebecca Hines
APPEARANCES:
For the Applicant: Sherilyn Pickering, Counsel
For the Respondent: Alisha Esmail, Counsel
HEARD: By way of written submissions
OVERVIEW
1Maryam Aly, the applicant, was involved in an automobile accident on April 19, 2022, 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, Certas Home and Auto Insurance 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”) in the amount of $185.00 per week from May 17, 2022, to April 16, 2024?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant withdrew her claim for an award under s. 10 of Reg. 664.
RESULT
4After considering both parties’ submissions and all the evidence I find the applicant is not entitled to a NEB in the amount of $185.00 per week for the time period claimed or interest.
PROCEDURAL ISSUES
5On May 2, 2025, the respondent filed a notice of motion seeking to exclude the clinical notes and records (“CNRs”) and progress notes of Physio Art Rehab relied upon by the applicant because they were first served on it with the applicant’s written submissions. It submits that it would be procedurally unfair for the Tribunal to admit these records because this is trial by ambush, and it is prejudiced by the late service because it did not have a chance to properly respond to these records. The respondent also maintains that the applicant failed to comply with the productions she was ordered to produce as set out in the Tribunal’s case conference report and order (“order”).
6On May 5, 2025, the Tribunal issued a Notice of Motion Hearing to be heard at the scheduled event (this written hearing). The Tribunal invited the applicant to file written submissions by May 12, 2025. The applicant did not file a reply to the motion until June 11, 2025 (almost one month past the deadline) and sought an extension of the timelines to file a reply. I note that no explanation was provided by the applicant for failing to file reply submissions by the deadline provided by the Tribunal. Ultimately, I find it unnecessary to exclude the CNRs and progress reports of Physio Art Rehab because they had little probative value and had no impact on the outcome of this decision.
ANALYSIS
The applicant is not entitled to a NEB in the amount of $185.00 per week from May 17, 2022, to April 16, 2024.
7Section 12(1) provides that an insurer shall pay a 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.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”), which focuses on a comparison of the applicant’s pre-and post-accident activities. Some of the principles endorsed by Heath are:
i. A claimant who merely goes through the motions cannot be said to be engaging in an activity and the question is not whether a person can do the activity, but whether the impairment practically prevents them in engaging in activity.
ii. It is not enough to show changes from pre-to post-accident activities; the claimant must be continuously prevented from engaging in substantially all of their pre-accident activities.
iii. The manner in which an activity is performed, and the quality of performance post-accident must be considered. If the degree to which a claimant can perform the activity is sufficiently restricted, it cannot be said that he or she is engaging in the activity.
iv. Greater weight may be assigned to those activities which the claimant identifies as being more important to them in their pre-accident life.
8The applicant argues that she has a complete inability to carry on a normal life because of her accident-related impairments. She relies on a disability certificate (“OCF-3”) dated May 10, 2022, authored by Mohannad Bakri, physiotherapist which supports that she meets the complete inability test. She also relies on transcripts of Sheridan College and the CNRs and progress notes of Physio Art Rehab.
9The respondent submits that the applicant has not met her onus in proving that she meets the stringent test for NEBs. It maintains that she has not made meaningful submissions regarding her pre-and post-accident activities. Nor did she articulate what accident-related impairments prevented her from carrying out her pre-accident activities. Further, it argues that the medical evidence she has relied upon is insufficient to prove that she has a complete inability to carry on a normal life. It also requests that the Tribunal draw an adverse inference from the applicant’s failure to produce any of the CNRs set out in the Tribunal’s order.
10I find that the applicant fell short of meeting her onus in proving that she meets the test for NEBs for the following reasons.
11First, I find the applicant’s submissions unhelpful as far as setting out what her daily activities were prior the accident compared to her activities post-accident, and what accident-related impairments prevented her from carrying out these activities. The applicant’s submissions addressing her pre- and post-accident activities were very brief and unsupported by any persuasive evidence. The submissions consisted of three short paragraphs which indicated that prior to the accident she was a student at Sheridan College in the Interior Design Program. Further, she was responsible for caring for her mother and two younger sisters and looking after the home. Following the accident, she suffered a complete inability to care for the home, struggled with school and could no longer look after her sisters. Her submissions did not provide further detail or direct me to the evidence to support what accident-related impairments interfered with her ability to look after her home, care for her sisters or what impairment caused her to struggle at school. Finally, she did not identify any activities she enjoyed prior to the accident which were most important to her and can no longer do post-accident. The applicant’s claim for NEBs fails because she did not provide meaningful submissions comparing her pre- and post-accident activities.
12In support of her position that she struggled at school post-accident, the applicant relies on a school transcript from Winter 2022 where she took three courses instead of six and achieved a grade point average of 2.93. She received a graduation warning. However, I find the pre-accident school transcripts from the Fall of 2021 establish that she was struggling academically prior to the accident because she was on academic probation. Moreover, the transcript from the Fall of 2022 demonstrates that the applicant’s GPA improved. For these reasons, I find the school transcripts unhelpful in demonstrating a link between any accident-related impairment and her poor academic performance.
13Second, I find there is insufficient medical evidence before me to support that the applicant has any accident-related impairment which would result in a complete inability to carry on a normal life. The applicant relies on the above-mentioned OCF-3 which notes that she suffers from post-traumatic headache, WAD II, and sprain and strain of the shoulder joint and knee. The duration of disability indicated 9 to 12 weeks. It is well established law that an OCF-3 on its own is insufficient to support entitlement to a substantive benefit. Further, I find there is little information on the OCF-3 regarding the applicant’s pre- and post-accident activities.
14Third, the CNRs and progress notes of Physio Art Rehab do not assist in filling in the gaps regarding the test for non-earner benefits. I find that all these progress reports support is that the applicant attended the clinic for treatment and made various pain complaints. There is little information about the applicant’s pre and post accident function in these records. Consequently, I assign this evidence little weight.
15Finally, I do draw an adverse inference from the applicant’s failure to comply with the Tribunal’s order because she has provided no explanation for why she did not produce the records outlined in the Tribunal’s order. I conclude that the records that the applicant was ordered to produce either do not exist or would not help her case.
16For the above-noted reasons, I find the applicant has not met her onus in proving on a balance of probabilities that she has a complete inability to carry on a normal life as a result of her accident-related impairments. As a result, she is not entitled to payment of a NEB for the time period claimed.
The applicant is not entitled to interest
17Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I have determined that no benefits are overdue the applicant is not entitled to payment of interest.
ORDER
18For the above-noted reasons, I order as follows:
i) The applicant is not entitled to a NEB in the amount of $185.00 per week for the time period claimed or interest.
ii) This application is dismissed.
Released: January 6, 2026
Rebecca Hines
Adjudicator