Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-006504/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:
Abbygail Larmond
Applicant
and
Onlia Insurance Company
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Meghan Fyall, Counsel
For the Respondent:
Farid Mahdi, Counsel
Kevin S. Adams, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Abbygail Larmond, the applicant, was involved in an automobile accident on November 15, 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, Onlia Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2A case conference took place in this matter on September 19, 2024, and a Case Conference Report and Order (“CCRO”) was prepared dated September 26, 2024. The CCRO lists the issues in dispute as are the applicant’s injuries predominantly minor and entitlement to attendant care benefits, five treatment plans, an award and interest. The applicant in her submissions indicates that following the case conference, the applicant was removed from the MIG on November 26, 2024, attendant care benefits were approved in the amount of $3,000.00 per month on December 2, 2024, and the treatment plans in dispute were approved between December 2, 2024 and March 20, 2025. Therefore, the applicant confirms that the only issues in dispute in this hearing are an award and interest.
ISSUES
3The issues in dispute are:
i. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the respondent is required to pay an award of $13,019.34, which is 15% of the total of the treatment plans and attendant care benefits approved.
5I find that the applicant is entitled to interest on the treatment plans, from May 23, 2024 to the date of approval of the treatment plans, calculated at the prejudgment interest rate described in subsection 128(3) of the Courts of Justice Act.
PROCEDURAL ISSUES
Submissions do not comply with the filing requirements
6The applicant submits in her reply submissions that the respondent’s written submissions contravene the CCRO. The applicant specifies that the submissions were late filed, exceed the ordered page limit and the font size is not compliant. The respondent’s submissions were not filed and served until after 5:00 p.m. on June 6, 2025, and therefore were deemed to be served on June 9, 2025, due to the weekend. In addition, the respondent’s submissions were 11 pages in length and in 11.5-point font. The applicant argues that the Tribunal has the discretion to determine whether to consider submissions that do not comply with the filing requirements.
7The respondent has not provided any response to the applicant’s submissions with respect to its contravention of the CCRO and it did not seek to file a sur-reply to respond.
8I agree that the respondent’s submissions do not comply with the Tribunal’s orders. The CCRO ordered that the respondent’s submissions were due 14 calendar days prior to the scheduled hearing date, its submissions were limited to 10 pages and the font to be used is 12-point. The respondent did not file or serve its submissions until after 5:00 p.m. on June 6, 2025, and therefore were deemed served on June 9, 2025, which is three calendar days late. Further, its submissions were substantively 11 pages in length and the font used was not 12-point.
9While I agree that the respondent’s submissions were late by three days, I do not find that the applicant was prejudiced by the late submissions. I find that the applicant was able to provide her reply submissions by her due date and she did not file a motion to request extra time.
10With respect to the page limit and font size, I find that the respondent contravened the CCRO. The CCRO indicates that the hearing adjudicator may choose not to consider submissions which exceed the page limits. I choose to do so in this matter because I find that the respondent offered no explanation as to why its submissions exceeded the page limit or why it used a smaller font. Further, the parties agreed to the ordered page length at the case conference, and the respondent did not seek an order for additional pages prior to making its submissions, nor did it attempt to remedy its non-compliance by filing a motion with its submissions to request additional pages. I find that it is not possible to determine how many pages the respondent exceeded based on the reduced font used. Therefore, in procedural fairness, I will not strike any of the respondent’s submissions on this basis. However, it is clear that the respondent exceeded the page limit set in the CCRO as its submissions are over 10 pages. Parties must not be encouraged to disregard the Tribunal orders. Therefore, for practical purposes, I will not consider page 11 of the respondent’s submissions in making my decision on the issues in dispute.
ANALYSIS
The applicant is entitled to an award under s. 10 of Reg. 664
11The applicant is entitled to an award under s. 10 of Reg. 664.
12Pursuant to s. 10 of Reg. 664, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. An award may be granted where an insurer’s behaviour is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. The onus is on the applicant to prove that the insurer unreasonably withheld or delayed the payment of benefits.
13The applicant submits that the respondent is liable to pay an award under s. 10 because it has denied every treatment plan on the basis of the Minor Injury Guideline (“MIG”) and it has not provided reasons in compliance with s. 38(8) of the Schedule. The applicant argues that it has been very clear from early on that her injuries do not fall within the scope of the MIG, and she has consistently submitted documentation supporting her removal from the MIG. Despite this, the respondent continued to keep her within the confines of the MIG for over two years. She also submits that despite having optional benefits of $65,000.00 in coverage, every treatment plan was denied.
14The applicant submits that it was only after the case conference was held on September 19, 2024, that the respondent formally acknowledged by letter dated November 26, 2024, that her injuries were not subject to the MIG. The applicant submits that the only “reason” provided by the respondent as to why she was removed from the MIG was as follows:
Upon further review of your claim file, please be advised you are removed from the Minor Injury Guideline (MIG) and now have access to a combined maximum amount of $65,000.00 for Medical/Rehabilitation and Attendant Care Benefits per section 18(3) of the SABs.
15The applicant submits that following the case conference, there was a change in the respondent’s position, and the previously denied attendant care benefits and treatment plans were suddenly approved. The applicant argues that this reversal occurred without any apparent change in circumstances or submission of new evidence. The applicant submits that the timing of these approvals strongly suggests that the application to the Tribunal and the subsequent case conference was the only reason that her entitlement was reassessed. The applicant submits that this abrupt reversal of these denials raises major concerns regarding whether the respondent’s conduct aligned with its duties to fairly and promptly evaluate and administer benefits under the Schedule. She relies upon the Ontario Court of Appeal decision in Usanovic v. Penncorp Life Insurance Company, 2017 ONCA 395 at paragraphs 26-29, where the obligations to adjust in good faith were summarized. She further submits that the overall handling of her claim appears to reflect a prolonged and unreasonable denial of benefits.
16In terms of quantum the applicant submits that she is entitled to an award of 50 percent of the amount of benefits to which she is entitled.
17The respondent submits that the applicant has failed to direct the Tribunal to evidence of any misconduct. It submits that the applicant has offered and put forward theories and assumptions which are not factual credible evidence. The respondent argues that the applicant has not put forth any credible evidence to support that the respondent’s conduct has been excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
18The respondent submits that the applicant was not removed from the MIG based on compelling medical records but due to a technicality. It submits that the issues in dispute were resolved on that basis and not because convincing medical records were consistently submitted. It submits that the treatment plan dated March 13, 2023, was submitted on March 17, 2023, and was not responded to until April 3, 2023, 11 business days after submission. Based on this technicality under s. 38(11) of the Schedule, the applicant was removed from the MIG. Counsel for the respondent submits that the technicality was not discovered until he was retained for the purpose of litigation following the filing of the application. It claims that it agreed to remove the applicant from the MIG and approved all of the disputed treatment plans once it learned of its error in computation of time. The respondent submits that this oversight does not amount to misconduct warranting a s. 10 award. The “shall pay” consequences of s. 38(11) serve as an appropriate punitive result for non-compliance with s. 38(8), and an additional overlapping award is not warranted.
19With respect to its letter removing the applicant from the MIG, dated November 26, 2024, the respondent submits that it was not required under the Schedule to provide a substantive reason to the applicant for MIG removal.
20The respondent further submits that it handled the claim in good faith and to the best of its ability with the limited records it had. The respondent denies that the applicant consistently submitted documentation supporting her removal from the MIG as suggested in his submissions. The respondent argues that at the time of filing of her application to the Tribunal, the applicant had produced limited medical records despite several s. 33 requests for records.
21In terms of the quantum of the award, the respondent relies upon the factors in Persofsky v. Liberty Mutual Insurance Co., 2003 ONFSCDRS 9 (“Persofsky”). It submits that even where the insurer has acted unreasonably, other factors may reduce the size of the award. It relies upon the Tribunal decision in 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT) where the Tribunal accepted that an insurer’s approval of substantive issues and obviating the need for a substantive issue hearing is a mitigating factor in awarding an award.
22I find that the applicant is entitled to an award for the following reasons.
23I find that I cannot make a determination as to whether the applicant should have been removed from the MIG earlier based on the medical evidence submitted following the accident, because the applicant has not provided the Tribunal with submissions or the medical evidence supporting same.
24I accept the respondent’s submission that the applicant was removed from the MIG based on a technicality that its response to the treatment plan dated March 13, 2023, was provided 11 days after the submission of the treatment plan, in non-compliance with s. 38(8). I further accept the respondent’s submission that it was not aware of the technicality until it retained legal counsel after it received the applicant’s application to the Tribunal, and it was advised of the contravention of s. 38(8) of the Schedule. However, the respondent has not provided any submissions as to why it waited until two months after the case conference to remove the applicant from the MIG based on this technicality.
25I find that the applicant filed her application to the Tribunal on May 23, 2024. The respondent’s Declaration of Representative was filed with the Tribunal on July 17, 2024, which indicates that the respondent’s counsel was retained sometime before that date. The Case Conference took place on September 19, 2024. The applicant was not removed from the MIG for over two months after the Case Conference on November 26, 2024. The applicant alleges that no new information or medical records were provided to the respondent during this time but yet it unreasonably withheld or delayed the payment of the denied treatment plan until after the Case Conference with no explanation for the delay in why it waited until this time to remove the applicant from the MIG and pay the treatment plans. In addition, while the respondent then removed the applicant from the MIG on November 24, 2024, it did not immediately approve her entitlement to the Form 1 or the treatment plans in dispute. The following are the dates that the Form 1 and treatment plans in dispute were approved:
Form 1 – approved on December 2, 2024
Treatment plan for occupational therapy services dated March 15, 2023 – approved on December 2, 2024
Treatment plan for an in-home assessment dated December 19, 2023 – approved on December 2, 2024.
Treatment plan for a neuropsychological assessment dated December 19, 2023 – approved on December 23, 2024
Treatment plan for occupational therapy services dated December 6, 2022 – approved on January 10, 2025
Treatment plan for chiropractic services dated April 17, 2023 – approved on March 20, 2025
No explanation for the delay in approving these items has been provided by the respondent.
26In addition, I agree with the applicant’s submission, that the respondent did not provide an explanation as to why it was removing her from the MIG until it provided its written submissions in this hearing. Its letter dated November 26, 2024, simply states that upon further review of her claim, she is removed from the MIG. While there is no statutory requirement for the respondent to elaborate further on its reasons for removing her from the MIG, the lack of explanation led the applicant to continue with her application and make assumptions about the reason for her removal from the MIG.
27I find that even after legal counsel had been retained and the parties attended at the Case Conference, the respondent did not remove from the applicant from the MIG for over two months, further delaying the applicant’s entitlement to medical benefits. I find that even after her removal from the MIG there was a delay in approving and paying the treatment plans in dispute. I find that no explanation has been provided for the delay. I find that this resulted in an unreasonable withholding and delay in payment of a greater tier of benefits that may have aided in the applicant’s recovery.
28With respect to the quantum of the s. 10 award, I rely upon the decision in Persofsky, where the Director’s Delegate stated that the amount of the special award should be considered within the context of the Insurance Act, but according to the principles of: rationality and proportionality. Rationality refers to the need to relate the particular facts of the case to the underlying purposes of the legislation. In other words, what amount is large enough to further the goals of punishment and deterrence but no larger than is needed to serve that purpose? Proportionality refers to the need to ensure that the consequences imposed on the insurer are rationally related to the misconduct at issue. The award should be proportionate to the following six factors:
i. The blameworthiness of the insurer’s conduct;
ii. The vulnerability of the insured person;
iii. The harm or potential harm directed at the insured person;
iv. The need for deterrence;
v. The advantage wrongfully gained by the insurer from the misconduct; and
vi. Take into account any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct.
29The applicant seeks an award of 50 percent of all benefits payable. A 50 percent award is reserved for the most egregious conduct on the part of the insurer and is not warranted in this case. I find that the respondent’s conduct should not attract the maximum award. However, in keeping with the fact that the respondent did not realize its contravention of s. 38(8) for almost a year and a half after its denial and only reassessed the applicant’s file because she filed an application and it retained counsel, thereby forcing the applicant to seek relief from the Tribunal which resulted in additional costs to her, I find that 15% is reasonable in the circumstances.
30I find that the total cost of the treatment plans that were in dispute is $24,215.60. Therefore, the amount of the award in respect to the treatment plans is $3,632.34.
31With respect to the attendant care benefits, the Form 1 recommended $10,252.41 per month from March 15, 2023 to date and ongoing. The respondent partially approved the Form 1 up to $3,000.00 per month. I confirm that this is the maximum amount of entitlement, as the applicant has not provided any evidence to support that her injuries are catastrophic. While the respondent submits that the applicant has not incurred any attendant care benefits to date, this issue is not before me. In order to calculate the award owing, I find that it is reasonable to calculate the amount of past benefits claimed to be owing that were subsequently approved by the respondent. Therefore, the amount of attendant care benefits owing, had they been approved, from March 15, 2023 to December 2, 2024, is 20.86 months multiplied by $3,000.00, for a total of $62,580.00. Therefore, the amount of the award in respect to attendant care benefits is $9,387.00.
32For the reasons outlined above, I find that the applicant has proved on a balance of probabilities that she is entitled to an award in the total amount of $13,019.34.
Entitlement to Interest
33I find that the applicant is entitled to interest with respect to the treatment plans in dispute in her application, in accordance with s. 51(4) of the Schedule.
34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Section 51(1) states that an amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under the Schedule.
35Section 51(3) states that interest is payable at the rate of 1 percent per month, compounded monthly, from the date on which the amount becomes overdue until the earlier of the following dates:
The date on which the overdue amount is paid.
The date, if any, on which interest becomes payable in accordance with subsection (4)
36Section 51(4) of the Schedule sets out how interest is calculated where an application before the Tribunal is settled. It provides that interest on the benefits in dispute is calculated at the prejudgment interest rate described in subsection 128(3) of the Courts of Justice Act and is payable for the period that begins from the date of the application to the Tribunal and ends on the date a settlement is reached or a decision is issued that finally disposes of the dispute.
37The applicant submits that every treatment plan that was denied and subsequently approved by the respondent is subject to interest. The applicant argues that at the time of the approval of the issues in dispute, the respondent did not pay, nor mention that they would be paying interest, despite their obligation to do so.
38The respondent submits that no interest is owing because a settlement has not been reached because the applicant’s claim has not been finally disposed of. In the alternative it submits that if the Tribunal finds that interest is owed, it is owed as of the date of the filing of the application with the Tribunal. It further submits that interest should be limited to the maximum prescribed sum in the Schedule for the disputed benefits. It argues that interest on the treatment plans proposing assessments should be limited to the $2,200.00 cap per assessment under s. 25.
39I find that in agreeing to pay the unapproved amounts of the treatment plans, which were issues in dispute in the applicant’s application before the Tribunal, the respondent settled the issues in dispute within the meaning of s 51(4) of the Schedule, and therefore must pay interest pursuant to that subsection. Pursuant to s. 51(4), interest is payable for the period that begins from the date of the application to the Tribunal and ends on the date of settlement of the issue. Therefore, the applicant is entitled to payment of interest from May 23, 2024, the date of her application, to the date that each treatment plan was subsequently approved by the respondent, calculated at the prejudgment interest rate described in subsection 128(3) of the Courts of Justice Act.
40I do not accept the respondent’s argument that interest on the treatment plans proposing assessments should be limited to the $2,200.00 cap per assessment under s. 25 of the Schedule. I find that the respondent has not pointed to any authority for this position. I find that s. 25 does not provide for interest payable pursuant to s. 51 of the Schedule. I conclude that s. 51 applies on overdue benefits and therefore interest is not included in the $2,200.00 cap where it is found that a treatment plan for an assessment is overdue.
41For the reasons outlined above, I find that pursuant to s. 51(4) of the Schedule, the applicant is entitled to interest on the balance of the treatment plans, from May 23, 2024, the date of her application to the Tribunal, to the date the treatment plans were approved, calculated at the prejudgment interest rate described in subsection 128(3) of the Courts of Justice Act.
ORDER
42For the reasons outlined above, I find that:
i. The respondent is required to pay an award of $13,019.34, which is 15% of the total of the treatment plans and attendant care benefits approved; and
ii. The applicant is entitled to interest on the treatment plans, from May 23, 2024 to the date of approval of the treatment plans, calculated at the prejudgment interest rate described in subsection 128(3) of the Courts of Justice Act.
Released: January 8, 2026
Melanie Malach
Adjudicator