Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 25-006672/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:
Ricardo Cardona
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
VICE-CHAIR: Henry Harris
APPEARANCES:
For the Applicant: Anne Jayatilake, Counsel
For the Respondent: Kathleen O'Hara, Counsel
HEARD by Videoconference: March 12, 2026
OVERVIEW
1Ricardo Cardona (the "applicant") was involved in an automobile accident on September 1, 2018, 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 Co-operators General Insurance Company (the "respondent") 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 an income replacement benefit ("IRB") in the amount of $400.00 per week from September 8, 2018 to date and ongoing?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
3At the start of the hearing, the applicant withdrew issue 2 as listed in the case conference report and order dated September 12, 2025 (the "CCRO").
RESULT
4The applicant is not entitled to an IRB in the amount of $400.00 per week from September 8, 2018 to date and ongoing.
5The applicant is not entitled to interest or an award.
6The application is dismissed.
ANALYSIS
Background
7On September 1, 2018, the applicant was the driver of a vehicle which was rear-ended while stopped for a red light at an intersection. The impact caused a chain collision, with the applicant's vehicle hitting the rear of a vehicle stopped in front of him. He was taken by ambulance to the hospital but there is no hospital report in evidence. His first post-accident examination was noted as being approximately four weeks later, on September 27, 2018 with Dr. Joseph Paton, chiropractor. Dr. Paton identified accident-related soft tissue injuries of sprain and strain to cervical and lumbar spine.
8One week prior to the accident, the applicant was brought to Grand River Hospital by police to have him committed for psychiatric assistance at the request of his family. He remained in hospital for five days for a psychiatric assessment. In the August 25, 2018 consultation note of Dr. H. Vijay Kumar, psychiatrist, the applicant was diagnosed with psychosis.
9The applicant was discharged from the hospital on August 30, 2018, two days prior to the accident. The discharge summary of Dr. Abraham Popoola, psychiatrist, notes that the applicant was prescribed an antipsychotic drug and was discharged to his father's home.
10Prior to the accident, the applicant was self-employed as an auto mechanic and had a cleaning business. However, during his pre-accident stay at Grand River Hospital, he reported to the emergency doctor, Dr. Christoper Dainton, that he previously worked as an auto mechanic, but was not currently working and had not worked for six months. Dr. Dainton noted that the applicant then corrected this to state he was referring to the last time he "really worked". In his testimony, the applicant denied that he stopped working as an auto mechanic pre-accident.
11Nearly three years post-accident, for a period of two years and nine months between July 2021 to April 2024, the applicant was hospitalized on a continuous basis, initially at Waypoint Centre for Mental Health Care and then at CAMH, due to mental health issues and substance abuse issues. After being discharged from CAMH, the applicant has been employed on a full-time basis since February 2025 as a light duty auto mechanic.
12The applicant was the only witness to testify at the hearing.
The applicant is not entitled to an IRB
13To 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 or self-employment. The applicant must identify the essential tasks of their employment or self-employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving on a balance of probabilities that they meet the test.
14To receive payment for a post-104 week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
15The applicant submits that he was unable to return to work as an auto mechanic following the accident because he suffers from physical, psychological and functional impairments. In support of his claim for an IRB in the amount of $400.00 per week from September 8, 2018 to date and ongoing, the applicant relies on an Application for Accident Benefits ("OCF-1") dated September 18, 2018, and a Disability Certificate ("OCF-3") dated March 11, 2019 completed by Dr. Paton.
16The respondent counters that the applicant has not met his onus to prove he meets the test for eligibility of an IRB. The respondent argues that if the applicant was unable to work post-accident, it is due to unrelated, pre-accident mental health issues and unrelated substance abuse issues. The respondent submits that there is no documented medical evidence supporting an inability to work caused by the accident, which resulted in a soft tissue injury. The respondent further submits that the applicant has not met his onus to prove quantum of the benefit, and is non-compliant with s. 33 requests dating back to 2019 and other production requests in the CCRO which continue to remain outstanding.
17I find that the applicant has not established entitlement to an IRB for the following reasons.
18First, I find the medical evidence does not support that the applicant has any accident-related impairments that have impacted his ability to work. I was not directed to any medical evidence that connects the accident to the applicant's mental health and substance abuse issues.
19As noted, in the OCF-3 prepared six months post-accident by the chiropractor, Dr. Paton, he identified accident-related soft tissue injuries of sprain and strain to cervical and lumbar spine, and indicated the anticipated duration of the disability as 9-12 weeks. I find the OCF-3 alone is not sufficient in supporting entitlement to an IRB because it does not have enough information on how Dr. Paton reached his conclusions and does not address the essential tasks of the applicant's pre-accident employment. Further, there is no corroborating objective medical evidence, such as clinical notes and records ("CNRs") of a family doctor or walk-in clinic, to support a substantial inability to perform essential tasks of pre-accident employment or self-employment.
20Information on essential tasks of self-employment was also omitted in the OCF-1 completed by the applicant, which is blank in the section on position/essential task in Part 8 Income Replacement Determination. Rather, this section of the form indicates "See OCF-2", but no such OCF-2 Employer Confirmation Form was entered as evidence, nor was there any indication that such form was ever prepared and provided to the respondent. I also note an inconsistency in the OCF-1, which I find limits the reliability of the information. Namely, in the IRB section at Part 8, the applicant indicates his injuries prevent him from working from October 23, 2018, however, the OCF-1 is dated on an earlier date of September 15, 2018. In addition, the Tribunal has consistently held that insurance forms on their own are not sufficient to prove entitlement to a benefit when they are not supported by objective evidence.
21Second, I have limited evidence before me about what the essential tasks of the applicant's self-employment was at the time of the accident. The applicant testified that at the time of the accident he was an auto mechanic and also had a cleaning business. He testified that post-accident he continued with his cleaning business for two years until 2020 because it was "easy work" and he got his son to help. In addition, he testified that he currently works full-time, Monday to Friday eight hours per day, as a light duty auto mechanic because he cannot do heavy lifting. This information regarding the work the applicant has done since the accident, is the only detail I was provided with regarding an aspect of essential tasks of the applicant's self-employment before the accident. This is further complicated by the applicant reporting pre-accident to Dr. Dainton, that he had not worked as auto mechanic for the past six months, while in his testimony the applicant denied that he stopped working as an auto mechanic pre-accident. What is also unclear is what accident-related impairment would result in a substantial inability to carry out the essential tasks of his self-employment as both an auto mechanic and cleaner.
22Thirdly, the applicant's testimony about being unable to work because of an accident-related impairment is inconsistent with other information before the Tribunal. This includes that post-accident: (i) the applicant continued to work and operate his self-employed cleaning business for two years; (ii) in the January 20, 2022 social work psychosocial assessment of Ms. Candice Amey, RSW at Waypoint, the applicant reported that the decline in his businesses was due to COVID; and (iii) the applicant has since February 2025 and currently, been employed full-time as a light duty mechanic.
23Finally, the respondent requests that I draw an adverse inference from the applicant's non-compliance with s. 33 requests for information, as well as production requests in the CCRO for the OHIP summary and prescription summary from 2019 to date, and post-accident pay stubs, including for the applicant's current full-time employment since February 2025. The respondent submits that such records are relevant to its understanding what medical follow up has occurred for accident-related injures.
24I do draw an adverse inference from the applicant's failure to comply with the Tribunal's order for production as set out in the CCRO, including the OHIP and prescription summaries, and post-accident pay stubs, because he has provided no explanation for why he did not produce the records outlined in the Tribunal's order. I will infer that the records that the applicant was ordered to produce would likely have been unfavourable to his case.
25For these reasons, I find that the applicant has not established entitlement to an IRB within 104 weeks after the accident. Having found this, it is unnecessary to assess whether the applicant meets the more stringent test for ongoing entitlement to an IRB after the first 104 weeks of disability. I find that the Schedule is clear that an insured must establish that he suffered a substantial inability within the first 104-week period to qualify for post-104 weeks IRBs. Section 6(2)(b) simply sets out the more stringent test for an insured's ongoing entitlement to the benefit: Paesano v. Coseco Insurance Co., 2025 ONSC 3245.
26Accordingly, I find that the applicant has not established on a balance of probabilities that he is entitled to an IRB in the amount of $400.00 per week from September 8, 2018 to date and ongoing.
Interest
27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest does not apply.
Award
28The 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.
29As the respondent did not unreasonably withhold or delay the payment of benefits, no award is payable.
ORDER
30For the reasons outlined above, I find that:
i. The applicant is not entitled to an IRB in the amount of $400.00 per week from September 8, 2018 to date and ongoing;
ii. The applicant is not entitled to interest or an award; and
iii. The application is dismissed.
Released: April 30, 2026
Henry Harris Vice-Chair