Citation: Alleyne v. Intact Insurance Company, 2026 ONLAT 24-010002/AABS

Licence Appeal Tribunal File Number: 24-010002/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:

Lathaniel Alleyne

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Amar Mohammed

APPEARANCES:

For the Applicant:

Godfrey Bakeerathan, Counsel

For the Respondent:

Robbie Brar, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Lathaniel Alleyne, the applicant, was involved in an automobile accident on May 11, 2024, 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, Intact 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 $1,539.94 ($2,750.00 less $1,210.06 approved) for an occupational therapy assessment, proposed by Alliance Diagnostics and Treatment in a treatment plan/OCF-18 (“plan”) dated May 28, 2024?

ii. Is the applicant entitled to $4,714.63 ($7,534.88 less $2,820.25 approved) for physiotherapy services, proposed by Value Health & Wellness in a plan submitted May 23, 2024, and denied May 30, 2024?

iii. Is the applicant entitled to $143.60 ($8,273.04 less $8,129.44 approved) for medical services, proposed by Alliance Diagnostics and Treatment in a plan submitted September 24, 2024, and denied October 4, 2024?

iv. Is the applicant entitled to $2,794.63 ($5,614.88 less $2,820.25 approved) for chiropractic treatment, proposed by Value Health & Wellness in a plan submitted August 6, 2024, and denied August 19, 2024?

v. Is the applicant entitled to the assessments proposed by Toronto Independent Medical Evaluators, as follows:

1. $2,200.00 for an orthopaedic assessment, in a plan submitted June 4, 2024, and denied June 7, 2024; and

2. $554.29 ($2,200.00 less $1,645.71 approved) for a psychological assessment, in a plan submitted August 7, 2024, and denied August 19, 2024?

vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

vii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is entitled to $989.94 ($2,200.00 less $1,210.06 previously approved) for the plan proposing an occupational therapy assessment.

4The applicant is entitled to $2,794.63 in addition to the $2,820.25 previously approved for the plan proposing physiotherapy services.

5The applicant is not entitled to the further $143.60 for the plan proposing medical services.

6The applicant is entitled to $2,794.63 in addition to the $2,820.25 previously approved for the plan proposing chiropractic treatment.

7The applicant is entitled to $2,200.00 for the plan proposing an orthopaedic assessment.

8The applicant is entitled to $554.29 ($2,200.00 less $1,645.71 approved) for the plan proposing a psychological assessment.

9The respondent is liable to pay an award of 25 per cent of 9,333.49 as set out below.

10The applicant is entitled to interest in accordance with s. 51 of the Schedule.

ANALYSIS

Reasonable cost per procedure or reasonable cost per hour

11I find that an assessment under s. 25(5)(a) is subject to a $2,000.00 limit and form completion under s. 25(1)3 is subject to a $200.00 limit, and both may be proposed as a reasonable block fee on a per procedure basis, in accordance with HCAI requirements.

12The applicant relies on s. 25(5)(a) of the Schedule to argue that he is entitled to fees up to $2,000.00 for any one assessment and its resulting report. Further, based on the Superintendent's Guideline No. 03/14 by Financial Services Commission of Ontario (“Guideline”), he argues entitlement up to $200.00 for completion of an OCF-18 form under s. 25(1)3. The applicant submits that these disputed line items were proposing each assessment and form completion on the basis of cost per procedure or block fee rather than cost per hour. Accordingly, the applicant argues where it is determined that an assessment or form completion is necessary, the respondent should approve each reasonable block fee up to the maximum limits set by the Schedule and Guideline rather than fettering its discretion by applying criteria beyond what is required by the Schedule.

13To that end, the respondent’s position on fees payable for a s. 25(5)(a) assessment up to $2,000.00 can be summarized as requiring the following criteria in order to establish that it is reasonable: a detailed breakdown of the components of the proposed assessment, the number of hours required for each component, and an hourly rate to be applied.

14In the case of fees payable for form completion under s. 25(1)3 up to $200.00, it requires “concrete documentation” including supporting documentation from qualified professionals that address the following criteria: a detailed breakdown of the time required, details of the complexity, an hourly rate.

15The Court of Appeal for Ontario pronounced in Tomec v. Economical Mutual Insurance Co., 2019 ONCA 882, 148 O.R. (3d) 438, leave to appeal refused, [2020] S.C.C.A. No. 39017. Hourigan J.A. confirms the principle that the Statutory Accident Benefit Schedule is consumer protection legislation and “is supposed to maximize benefits”: Tomec, at paras. 42-43. I am guided by this principle in my decision.

Section 25(1)3, cost to complete OCF-18

16Section 25(1)3 governs the payment for the cost of completing an OCF-18 form: 18-001347 v Certas Home and Auto Insurance Company, 2018 CanLII 142933 (ON LAT), at para 12. The Guideline states that the maximum amounts or hourly rates established therein are applicable to services under s. 25(1)3, namely reviewing and approving an OCF-18 under subsection 38(3)(c), including any assessment or examination necessary for the purpose of this review and approval of an OCF-18. Section 38(3)(c) of the Schedule lists the requirements of a treatment and assessment plan proposing an assessment or form completion and does not explicitly require an hourly rate of the service provider. Further, I find, as the Tribunal has previously determined, nor does part 12 of the plan provide space for or request an estimate of hours or an hourly rate when the service is accounted for as a procedure. Rather, the Guideline delineates between maximum hourly rates and maximum amounts or fees, accounting for the difference between billing on an hourly basis and per procedure or block fee basis. The Tribunal has accepted these block fees are intended not to be subject to hourly rates as they are listed separately in the Guideline: Ossipova v BelairDirect Insurance Company, 2023 CanLII 40135 (ON LAT), at para 13.

17Certainly, this Tribunal routinely approves the full $200.00 for completion of an OCF-18 form on a per procedure basis and the Guideline supports this determination without the level of scrutiny applied by the respondent.

Section 25(5)(a), cost to complete assessment

18Section 25(5)(a) of the Schedule sets a maximum block fee of $2,000.00 per assessment. The applicant correctly submits that the Guideline states clearly that the Schedule does not expressly set out the criteria for the respondent to apply in determining whether to agree to pay for an assessment. Further, that the Guideline obligates the respondent to adjust and settle claims fairly and without unreasonable delay or resistance. The Guideline also states that to achieve this objective, the insurer should not act arbitrarily or fetter its discretion.

19Accordingly, when there is a dispute whether the block fee for an assessment is reasonable and necessary, I must consider and apply criteria with a view to the Schedule’s consumer protection mandate. In my view, I should hesitate in that exercise of discretion when asked to accept and apply criteria that are not expressly set out in the Schedule so as to not undermine the purpose of the Schedule by effectively creating hurdles or barriers by establishing a higher burden on the applicant than intended.

20The Schedule states that the $2,000.00 fee for assessments covers all the related components for conducting any one assessment and preparing a report. The Guideline references this $2,000.00 limit and does not mandate any further limits on such assessments, nor is application of an hourly rate mandated in the Schedule or Guideline for s. 25(5)(a) assessments. I appreciate that s. 25(3) states that the insurer is not liable beyond the limits set by various Guidelines. However, the respondent has not established that the 2014 Guideline’s purpose is to apply hourly rates to assessments under s. 25(5)(a), particularly when it is proposed as a procedure, as is the case before me. I find that the respondent’s position is not grounded in the Guideline or the Schedule.

21Under the Forms heading dealing with completion of forms, the Guideline reiterates the $2,000.00 limit created by the Schedule that applies to assessments to contrast it with the $200.00 maximum fee applicable to subsection 25 (1)3 of the Schedule which incorporates its own mini assessment as I have reviewed above. It does not set any limits on s. 25 (5)(a) assessments beyond what is already provided for in the Schedule.

22In accordance with this Tribunal’s routine findings, reasonable block fees or costs per procedure are payable for assessments under s. 25(5)(a) without the level of scrutiny applied by the respondent.

Caselaw

23The applicant refers me to paragraph 13 of L.F.B. v. Intact Insurance Company, 2021 CanLII 48377 (ON LAT) (“L.F.B.”) for the proposition that when an assessment is necessary that the total fees of up to $2,200.00 are also reasonable, being $2,000.00 under s. 25(5)(a) and $200.00 under s. 25(1)(3). L.F.B. turns on whether an assessment is reasonable and necessary. It does not engage in the type of analysis required of me in this decision as to whether the per procedure quantum requires scrutiny on the basis of an hourly rate. For this reason, I am not persuaded L.F.B. directly addresses this aspect of the dispute before me. However, L.F.B. is one of many examples of this Tribunal routinely determining $2,000.00 for an assessment and $200.00 for OCF-18 completion are reasonable amounts without engaging in a detailed analysis of each component of these tasks, their complexity, and applying an hourly rate to those components as suggested by the respondent.

24I find that the respondent has not established that its cited caselaw relates to plans proposing costs on a procedure basis, and therefore I am not persuaded that the reasons should be adopted in the case before me. I note that prior decisions of this Tribunal are not binding on me. Further, the cases are distinguished in key aspects and limited in number in contrast to this Tribunal’s long history of routinely approving fees up to the maximum limits for assessments and form completion, whether proposed per hour or on a per procedure basis. Ultimately, the respondent has not persuaded me that its criteria, listed above, should be applied to scrutinize block fees for assessments or form completion because the criteria does not have a foundation in the Schedule and sets too high a burden on the applicant.

Applicant’s onus

25The respondent essentially argues that the applicant must establish each aspect or component of the denied benefits as being reasonable and offers criteria to meet that threshold. The applicant challenges the respondent’s reasons for denial. The applicant argues both that the disputed benefits are reasonable and necessary and refers to s. 38(8) for his position that the respondent’s reasons for denial are inconsistent, inaccurate, arbitrary, and based on assumptions causing unreasonable delay and resistance by fettering its discretion. I note that “it is fundamental insurance law that the burden of proof rests on the insured to establish a right to recover under the terms of the policy.” Shakur v. Pilot Insurance Co. (C.A.), 1990 CanLII 6671 (ON CA). Accordingly, the applicant must establish he is entitled either as a result of s. 38(11) or because the benefits are reasonable and necessary.

i. Is the applicant entitled to $1,539.94 ($2,750.00 less $1,210.06 approved) for an occupational therapy assessment?

26I find that the applicant is entitled to $989.94 ($2,200.00 less $1,210.06 previously approved) as a reasonable block fee, proposed on a cost per procedure basis.

27The applicant originally sought $2,750.00 for this assessment. The applicant amends the amount sought to $2,200.00 in submissions. The applicant relies on s. 25(5)(a) to argue that he is entitled to $2,000.00 for the assessment and relies on the Guideline to argue entitlement to $200.00 for completion of the OCF-18 on a per procedure basis.

28The parties agree that the assessment is necessary and therefore warranted. The applicant’s central arguments for entitlement to $2,200.00 for this plan have been reviewed above. The respondent argues that a notice dated June 21, 2024, appropriately considered a reasonable amount to be based on the maximum hourly rate set by the Guideline for occupational therapists at $99.75 per hour and approved 12 hours for the assessment and one hour for form completion. In doing so, the respondent stated in the notice that this is the accepted range for an occupational therapy assessment. The respondent’s notice does not outline how it came to this conclusion, particularly that 12 hours or $1,197.00 is in the accepted range for this assessment, I find that its decision to partially deny the plan on this basis is arbitrary and the applicant was not provided a clear rationale for this denial.

29I find that, where an assessment and form completion are proposed on a per procedure basis, the respondent’s denial imposing an hourly calculation including an arbitrary reference to 1 hour and 12 hours being reasonable is not supported by the Schedule, as argued by the applicant. I find that the block fees proposed are reasonable and necessary because the occupational therapy assessment is for a complex type of assessment, an attendant care benefit determination and completion of a Form-1. The assessment’s stated goals include evaluating the applicant’s current status, determining the appropriate course of management and a return to activities of daily living, and noting any progress or improvement in the report. The report will also identify any barriers to recovery and strategies to overcome those barriers, if any, by an occupational therapy assessor. In addition, the current status of any treatment will be documented in the report. The assessment is proposed as an in-home assessment and the health-care practitioner proposing the assessment is in a better position to estimate the block fee costs of the assessment in contrast to the respondent’s opinion. Accordingly, I accept the applicant’s evidence establishing that the proposed block fees are reasonable.

30Further, the respondent submits that after the respondent’s partial approval of the plan for $1,210.06, the applicant incurred it by undergoing the assessment on July 12, 2024. The respondent argues that the applicant must lead evidence of the particulars of his incurred expense for the assessment, such as through an invoice or correspondence from the service provider. I find that whether or not the applicant incurred the plan is not relevant to the question before me as to whether the plan proposing the assessment is reasonable and necessary. I am tasked with reviewing if the treatment plan proposing the assessment is reasonable and necessary and not tasked with reviewing incurred amounts. These are separate questions. While I appreciate the respondent’s concern in its submissions that it may well be that a plan proposing $2,200.00 is approved, but that it is incurred at some lesser total amount, and the respondent requires this information in order to process a payment. The Schedule already considers this; the respondent is ultimately not liable for payment of approved amounts that are not incurred.

31For the reasons above, on a balance of probabilities, I find that the applicant is entitled to $989.94 ($2,200.00 less $1,210.06 previously approved).

ii. Is the applicant entitled to $4,714.63 ($7,534.88 less $2,820.25 approved) for physiotherapy services?

32I find that the applicant is entitled to $2,794.63 in addition to the $2,820.25 previously approved as noted below, for this treatment plan.

33The applicant no longer seeks the full denied amount of $4,714.63, specifically withdrawing the dispute of $1,920.00 for transportation costs which formed part of the original total and was denied. Accordingly, the respondent’s evidence provides this breakdown of the $2,794.63 now disputed:

i. Completion of OCF-18 form, $200.00 proposed, $112.81 approved, $87.19 disputed.

ii. Manipulation, $5,414.88 sought, $2,707.44 approved, $2,707.44 disputed.

34The applicant argues that he is entitled to the full $200.00 for form completion, submitted and billed as a procedure in accordance with HCAI requirements, because that is the maximum amount allowed and is not subject to an hourly rate. For reasons provided previously, I find that the applicant is entitled to $200.00 for form completion as a block fee without application of hourly scrutiny, the amount is reasonable for completing this OCF-18.

35Further, the applicant argues he is entitled to the full amount for manipulation services by his health care provider because the initial denial was based on a misinterpretation of the plan by the respondent. The plan proposed 24 sessions, 2 hours each, for a cost of $225.62 per session, and a total cost of $5,414.88. The respondent took this to mean that the proposed hourly rate was $225.62, double the rate it accepts at $112.81 per hour. Upon review of the plan and the respondent’s denial notice, I cannot agree with the respondent’s position that the plan proposed an hourly rate of $225.62 and that it required any clarification from the applicant. If that had been the case, the total cost would be estimated at $10,829.76 rather than $5,414.88. It is clear that the cost column set out the per session cost of $225.62 rather than an hourly rate.

36Nonetheless, by correspondence on July 7 and 8, 2025, the applicant and the health care practitioner Dr. Raphael Ahn explained that $225.62 in the OCF-18 was intended to reflect that there would be two-hour sessions at the hourly rate of $112.81, and the cost was calculated on the basis of two-hour sessions. I find that the hourly rate of $112.81 per hour is not disputed between the parties because the respondent’s notice dated June 10, 2024, accepts this rate. Further, the respondent’s notice, which is to contain its medical and all other reasons for denial, only took issue with the mistaken hourly rate of $225.62. The respondent did not indicate any other reasons for denying this line item. Since there is no error in the plan as to the hourly rate, and the respondent’s error was explained to it in July 2025 by Dr. Ahn, there was no dispute between the parties and the respondent had no reason to deny the 24 sessions, at two hours each, at an hourly rate of $112.81 for a total of $5,414.88, as originally proposed. I accept that this clarification means that the original total amount proposed in the OCF-18 was on the basis of an hourly rate acceptable to the respondent and in accordance with the Guideline, except that it appeared to the respondent to be double the rate due to an error in reviewing the form.

37While the respondent argues that the applicant has not met his onus to establish the plan is reasonable and necessary, it also recognizes that had the explanation about the cost column been provided sooner rather than over a year later in July 2025, it is highly likely that resolution of the issue would have happened sooner. However, I note that the respondent maintained its denial after the explanation was provided and maintained its denial at this hearing on the basis that the plan proposed double the hourly rate than it actually proposed. The respondent’s denial does not dispute the type of treatment, the length of the sessions being 2 hours long, or that 24 sessions are proposed. After a thorough review of the OCF-18, the respondent’s denial notice, and further correspondence of July 2025, I find that this dispute was limited to the respondent misinterpreting the hourly rate being above the maximum Guideline rate and there is no other point of contention between the parties on this issue. The respondent had already approved the plan as necessary; it denied and maintained a denial of an hourly rate under a mistaken interpretation of the breakdown of costs in the plan.

38For the reasons above, on a balance of probabilities, I find that the applicant is entitled to $2,794.63 in addition to the $2,820.25 previously approved for this treatment plan.

iii. Is the applicant entitled to $143.60 ($8,273.04 less $8,129.44 approved) for medical services?

39The applicant did not make any submissions regarding this issue. Without submissions to guide my analysis, the applicant has not established entitlement to the disputed amount.

iv. Is the applicant entitled to $2,794.63 ($5,614.88 less $2,820.25 approved) for chiropractic treatment?

40I find that the applicant is entitled to $2,794.63 in addition to the $2,820.25 previously approved for this treatment plan, as reviewed below.

41The applicant seeks entitlement as follows and makes the same arguments as made regarding issue 2 above:

i. Completion of OCF-18 form, $200.00 sought, $112.81 approved, $87.19 disputed.

ii. Manipulation, $5,414.88 sought, $2,707.44 approved, $2,707.44 disputed.

42For reasons provided previously, I find that the applicant is entitled to $200.00 for form completion as a block fee because it is reasonable for completing this OCF-18.

43As to treatment, for largely the same reasons provided for the second plan in dispute above, the respondent approved the plan as necessary, it denied and maintained a denial of an hourly rate under a mistaken interpretation of the breakdown of costs in the plan. The respondent’s error was explained to it by Dr. Ahn in July 2025, and the rate was in line with the respondent’s approval, there was no further reason to deny the 24 sessions of treatment.

44For the reasons above, on a balance of probabilities, I find that the applicant is entitled to $2,794.63 in addition to the $2,820.25 previously approved for this treatment plan.

v. Is the applicant entitled to $2,200.00 for an orthopaedic assessment?

45I find that the applicant is entitled payment for this incurred plan proposing an orthopaedic assessment under s. 38(11).

Section 38(8)

46The applicant sought an orthopaedic assessment for $2,000.00 and $200.00 for completing the OCF-18. The respondent denied the assessment, by correspondence dated June 20, 2024. The applicant incurred the assessment resulting in a section 25 Orthopaedic Assessment Report by Dr. Michael West dated July 9, 2024.

47Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies.

48The applicant argues that the respondent’s reasons are not compliant with the Schedule because they are not cogent. The notice states the assessment is not reasonable and necessary because it may be a duplication if the applicant is already under the care of an Orthopaedic Surgeon through OHIP, and that it was unclear if the applicant was under the care of an orthopaedic surgeon at the time. Further, that should the applicant be under the care of an orthopaedic surgeon through OHIP, the proposed assessment is a duplication of services and not reasonable and necessary. I find that these are the sole reasons for denial, they are based on speculation, and that they do not adequately rise to the standard required of the insurer because they are not clear and unequivocal. While the respondent is not strictly required by the Schedule to make a s. 33 request, since the reasons in the notice indicate the respondent appreciates that its denial is based on speculation, the lack of such a request makes the notice unclear as to what information the applicant could provide to satisfy the respondent. The reasons are not adequate enough to allow an unsophisticated person to understand them and make an informed decision to either accept or dispute the denial because they are based on speculation and do not include a pathway to clarify the matter.

49Since the respondent’s denial does not meet the requirements of s. 38(8), as above, the plan is subject to the shall pay provision of s. 38(11). Accordingly, an analysis of whether this plan is reasonable and necessary is not warranted.

50For all of the reasons above, I find, on a balance of probabilities, that the applicant is entitled to payment for this incurred plan proposing an orthopaedic assessment under s. 38(11).

vi. Is the applicant entitled to $554.29 ($2,200.00 less $1,645.71 approved) for a psychological assessment?

51I find that the applicant is entitled to $554.29 ($2,200.00 less $1,645.71 approved) for a psychiatric assessment.

52The parties’ principal arguments relating to reasonable fees for proposed assessments and form completion have been reviewed in detail previously in this decision. The respondent accepted that a psychological assessment is necessary and therefore warranted. However, $554.29 was denied on the premise that the maximum reasonable rate it will consider “for psych” is $149.61 per hour. I adopt my reasons and findings reviewed in more detail previously in this decision relating to assessments, such as this one, proposing block fees and billed on a per procedure basis.

53For context, based on the respondent’s notice dated August 28, 2024, it approved the plan at the hourly rate of $149.61 and assigned one hour as a reasonable amount of time for completion of the OCF-18. It did not indicate how many hours it was approving as reasonable for the proposed assessment in the denial but based on its approval of $1,496.10, it effectively approved ten hours for the assessment and report, for a combined approved total of $1,645.71. For reasons already provided, the respondent has not established that its approach has a foundation in the Schedule or Guideline.

54The respondent did not indicate in its notice how it concluded that 10 hours or $1,496.10 is reasonable for this assessment rather than the $2,000.00 proposed by the health practitioner, Dr. Arif M. Syed, a psychiatrist performing independent medical examinations for over 15 years. The denial notice lacks clarity in this respect. I find that the $2,000.00 block fee is reasonable for this assessment because it is proposed by an experienced psychiatrist. I understand from the evidence that ultimately the assessment was completed by Dr. Sadiq Hasan, who is also a well qualified psychiatrist in Ontario since 2011, as represented in his report. Additionally, I accept that the plan states that the assessment and report is intended to evaluate the applicant through an extensive clinical interview regarding the accident’s impact from an emotional and psychological perspective. The plan indicates that this includes administration, scoring and analysis of psychological testing materials to identify the extent of symptoms & diagnose the applicant. Further, the proposed report as part of the assessment is intended to provide expert opinion relating to treatment recommendations to facilitate recovery and return to the applicant’s pre-accident status. Under the circumstances, I find that the health care practitioner proposing the assessment was in the best position to estimate the appropriate block fee and that the fees for the assessment and completing the OCF-18 are reasonable.

55The respondent relies on paragraph 29 of J.A. v. Aviva Insurance Company, 2020 CanLII 12726 (ON LAT) (“J.A.”), where the Tribunal found in assessing plans proposing psychological treatment subject to an hourly rate, hourly rates not covered by the Guideline are subject to determination by the parties involved, as stated in the Guideline. As a result, by not negotiating a different rate or protesting the lower rate prior to incurring it, the insured’s actions were tantamount to an agreement at the partially approved lower rate. The respondent argues I should adopt this principle because psychiatrists are not subject to the Guideline, the applicant incurred it without first protesting the rate the respondent indicated in its denial, and because the principle was also adopted and applied by this Tribunal more recently at paragraph 73 of Wang v Jevco Insurance, 2022 CanLII 73107 (ON LAT). I note that other decisions of this Tribunal are not binding on me. I am not persuaded that this reasoning applies to the facts before me because the applicant is not seeking treatment that is subject to an hourly rate and is instead seeking an assessment proposed as a block fee. The question before me is if that block fee is reasonable rather than what hourly rate should apply to a psychiatrist. I am also not persuaded by the respondent that the applicant must dispute or protest the denial before incurring the plan rather than disputing the denial within two years as provided under s. 280 of the Insurance Act. I am not of the view that an unsophisticated person, having been told they may dispute the denial within two years will be properly informed that if they incur the plan without protesting it first, they are effectively agreeing to the lower amount in the respondent’s denial notice.

56For the reasons above, on a balance of probabilities, I find that the applicant is entitled to $554.29 ($2,200.00 less $1,645.71 approved) for this assessment.

Interest

57The applicant is entitled to interest because interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

Award

58I find that the respondent is liable to pay an award of 25 per cent, as set out below.

59The 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.

60In determining the type of conduct for which an award is appropriate, the adopted standard is set out in the Financial Services Commission of Ontario case: Wayne Allan Plowright v. Wellington Insurance Company, 1993 ONICDRG 66 (“Plowright”). According to Plowright, unreasonable conduct can include “excessive, imprudent, stubborn, inflexible, unyielding or immoderate” behaviour.

61The applicant argues at various instances in his submissions that the respondent’s conduct and denials are inconsistent, inaccurate, arbitrary, and based on assumptions causing unreasonable delay and resistance by fettering its discretion. Further, that the respondent has not acted in accordance with its duty of good faith, and therefore an award of 50 per cent is warranted.

62The respondent argues that the applicant has not addressed the relevant factors to establish entitlement to an award and that it has not acted in bad faith. Further, that the applicant has not referred to a specific instance of conduct that would warrant an award.

63Further, the respondent submits that its conduct does not constitute bad faith, referring me to $37,933.10 of approved medical and rehabilitation benefits for this accident that had occurred just over a year prior. The respondent also submits that almost all of the issues in dispute include significant portions of partially approved amounts. I find that the factors to determine an award are focused on withheld or delayed benefits rather than the benefits approved and paid appropriately and therefore my focus belongs on assessing the disputed benefits. Partially approving plans does not absolve the respondent’s liability for unreasonable withheld or delayed benefits, if any. In that regard, the respondent argues that the benefits denied were denied in “good faith and, arguably, accurate interpretation of the [Guideline]”. Therefore, its position is that there is no unreasonable withholding or delay in the payment of benefits.

64I agree with the respondent that the applicant’s submissions do not explicitly address the factors in Plowright. However, the applicant has made both general and specific arguments related to an award. In addition to reasons incorporated in my analysis above addressing the respondent’s conduct relating to withheld and delayed benefits, below are further reasons.

65I find that the applicant is entitled to these additional amounts for which payment was unreasonably withheld or delayed.

$989.94 for the plan proposing an occupational therapy assessment

66The respondent denied this benefit by notice June 21, 2024, on the basis of application of an hourly rate under the Guideline and lack of breakdown of services, details on the components of the assessment, the providers involved, and the length of time required for each component. As the applicant argues, these reasons are inaccurate. I find that the OCF-18, in Parts 11-12 and in the additional comments section, lists the description of the service proposed, the name and type of provider for each proposed service for which a fee is proposed, and a clear indication that they are proposed on a per procedure basis or as a block fee rather than a per hour basis. Accordingly, the denial and withholding of the proposed plan is unreasonable and arbitrary due to the respondent acting imprudently. The respondent did not deal with the plan as it was proposed.

67Further, the notice states the applicant “must detail each component of the assessment, the length of time required for each component and the practitioners providing the service” in order to establish any further payment. The notice does not offer any basis for this in the Schedule or Guideline for assessments and form completion proposed on a per procedure basis. The respondent arbitrarily decided that a total of 12 hours at a rate of $99.75 is the accepted range for this specific occupational therapy assessment. The respondent did not provide a source or explanation as to how it came to this conclusion in the notice which is to include all of its reasons. Without establishing authority for conversion of a proposed procedure billed as a block fee to an hourly service, the respondent’s withholding of the denied amount is excessive.

68I also find that the applicant is correct that the notice approved 12 hours at $99.75, equal to $1,197.00 in addition to 1 hour at $112.81, for a combined total of $1,309.81. However, the respondent ultimately approved and paid $1,210.06, which left the applicant shortchanged by $99.75 because it was imprudent in adjusting this claim. Certainly, the denial notice confirms this.

$2,794.63 for the plan proposing physiotherapy services and $2,794.63 for the plan proposing chiropractic treatment

69The respondent recognized that had the explanation from Dr. Ahn been provided sooner, relating to interpretation of the cost column in these plans, it is highly likely that resolution would have happened sooner. While I appreciate the respondent’s forthcoming submissions, with a view to the applicant’s access to benefits, the misinterpretation on the part of the respondent as to the amount listed in the cost column of the plan is not the applicant’s responsibility. Even if the plan proposed double the acceptable rate, which I find it did not, there was no longer any reason to continue withholding the denied benefits as of Dr. Ahn’s correspondence in July 2025 correcting the respondent’s error. Accordingly, as of July 2025, the respondent’s choice not to continue to adjust the file reasonably caused further delay and its conduct was unyielding. It had plenty of opportunity to correct the misinterpretation.

$2,200.00 for the plan proposing an orthopaedic assessment

70I have made a finding that the respondent’s denial notice for this assessment solely provides speculative reasons without a request under section 33 to clarify the matter or a pathway for the applicant to satisfy the respondent. For reasons already reviewed, the respondent’s conduct, basing a denial on speculation in this manner, is excessive and immoderate leading to an unreasonable withholding of this benefit.

$554.29 for the plan proposing a psychological assessment

71Similar to the issue of the partial denial of the occupational therapy assessment, I have made a finding that the respondent arbitrarily imposed an hourly rate on services proposed as procedures and billed as block fees. For reasons already reviewed, the respondent’s conduct relating to this plan including approval of an unreasonable hourly rate for an experienced psychiatrist where no hourly rate is required delayed access to full entitlement to reasonable fees.

Quantum

72In deciding the quantum of the award, under section 10 of Regulation 664, I have discretion to award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

73Based on Tribunal case law, the following factors should guide an analysis as to quantum: the overall length of the delay, the blameworthiness of the insurer’s conduct, the vulnerability of the insured person, the need for deterrence, and the advantage wrongly gained by the insurer from the misconduct.

The overall length of the delay

74There is an undisputed obligation to expedite the assessment of claims by the respondent. I have considered that the delay was approximately a year between the dates of denial and the date for this hearing. This is an aggravating factor.

The blameworthiness of the insurer's conduct

75I do not have mitigating factors or a reasonable explanation for the respondent maintaining its misinterpretation of the hourly rate proposed for physical treatment in the two plans in dispute. Further, the respondent’s conduct in denying block fees by imposing hourly rates does not have a foundation in the Schedule or the Guideline, nor were these plans proposing an hourly service. Rather, as reviewed in my analysis above, the Guideline directs the respondent to avoid unreasonable delay or resistance, further stating that it should not act arbitrarily or fetter its discretion. Accordingly, this is an aggravating factor. The respondent argues that its application of hourly rates to block fees are adjustments made in good faith and arguably based on an accurate interpretation of the Guideline. I accept that the respondent’s conduct, while still ultimately unreasonable, arose from its interpretation of the Guideline and its interpretation of this Tribunal’s prior decisions and that there is no evidence of intentional delay or withholding. This is a mitigating factor and a reduction of 5 per cent is warranted.

The vulnerability of the insured person

76The subject matter of this Tribunal, comprising statutory accident benefits, inherently involves addressing claims from vulnerable injured parties. I accept that the parties agree that this case involves a non-minor injury, and that as of April 25, 2025, less than a year post-accident, the respondent had paid $37,933.10 in reasonable and necessary accident benefits. A review of the evidence including the plans and reports referred to by the parties indicates that the applicant is significantly vulnerable. This is an aggravating factor.

The harm or potential harm directed at the insured person

77There is no direct evidence of harm or potential harm directed at the applicant by the respondent’s conduct. This is a mitigating factor and a reduction of 10 per cent is warranted.

The need for deterrence

78It is generally accepted that the quantum should not be larger than necessary to further the goal of deterrence but needs to be large enough to act as deterrence. The applicant seeks 50 per cent and the respondent argues no award is warranted. I find that this factor weighs heavily on the specific facts on this case. Principally, there should be strong deterrence in withholding or delaying full payment for assessments and form completion that are proposed as reasonable block fees, without unreasonable resistance, when the parties agree that the services are necessary or warranted. There is also a need for deterrence in maintaining denials after the original reasons for denial have been explained as being a misinterpretation of the plan. This is an aggravating factor.

The advantage wrongfully gained by the insurer from the misconduct

79There is no evidence of an advantage wrongfully gained by the respondent. This is a mitigating factor and a reduction of 10 per cent is warranted.

80The amount of benefits unreasonably withheld or delayed are $9,333.49. On a balance of probabilities, for the reasons above, the respondent is liable to pay an award of 25 per cent as follows, expressed in an equation, the formula is: 25 per cent x (A + B + C). Where “A” is the amount of benefits unreasonably withheld or delayed, “B” is the interest on these benefits pursuant to section 51 of the Schedule, and “C” is the compound interest under s. 10 of Regulation 664.

ORDER

81For the reasons above, I make the following orders:

i. The applicant is entitled to $989.94 ($2,200.00 less $1,210.06 previously approved) for the plan proposing an occupational therapy assessment.

ii. The applicant is entitled to $2,794.63 in addition to the previously approved amounts for the plan proposing physiotherapy services.

iii. The applicant is not entitled to the further $143.60 for the plan proposing medical services.

iv. The applicant is entitled to $2,794.63 in addition to the previously approved amounts for the plan proposing chiropractic treatment.

v. The applicant is entitled to $2,200.00 for the plan proposing an orthopaedic assessment.

vi. The applicant is entitled to $554.29 ($2,200.00 less $1,645.71 approved) for the plan proposing a psychological assessment.

vii. The respondent is liable to pay an award of 25 per cent of $9,333.49, as set out above.

viii. The applicant is entitled to interest in accordance with s. 51 of the Schedule.