Citation: Tharmarajah v. Definity Insurance Company, 2026 ONLAT 24-009251/AABS

Licence Appeal Tribunal File Number: 24-009251/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:

Pathuraj Tharmarajah

Applicant

and

Definity Insurance Company

Respondent

DECISION

VICE-CHAIR:

Robert Maich

APPEARANCES:

For the Applicant:

Pathuraj Tharmarajah, Self-represented Applicant

For the Respondent:

Camilla Oblak, Counsel

HEARD: In Writing

OVERVIEW

1Pathuraj Tharmarajah, the applicant, was involved in an automobile accident on October 2, 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, Definity Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2A case conference was held November 19, 2024, during which the parties through their representatives set out the issues in dispute to be decided at the hearing and production orders with due dates as outlined in the Case Conference Report and Order (“CCRO”) dated November 21, 2024. On December 3, 2024 the applicant’s representative filed a removal of representative pursuant to Rule 24 of the Licence Tribunal Rules, 2023 (“Rules”) and was subsequently removed as representative of record effective same date.

3I note that the applicant’s representative’s withdrawal occurred 14 days after the case conference and 16 days prior to the applicant’s first disclosure due date. I note the Registrar’s canvassing correspondence of December 3, 2024 and subsequent correspondence of December 11, 2024 confirmed the applicant’s intention to proceeded with the application as self-representative. Accordingly, the applicant confirmed self representation approximately one week prior to the first disclosure due date pursuant to the CCRO.

4I note that the applicant raises very serious allegations of impropriety that are not within the jurisdiction of this Tribunal, namely: 1) an improper relationship between the a rehabilitation clinic and a legal representative that would most probably fall within the jurisdiction of their governing bodies under the Regulated Health Professions Act and the Law Society of Ontario Act, 2) improper legal advice that he was removed from the minor injury guideline and had gained access of up to $65,000 in treatment, which may also be within the jurisdiction of the Law Society of Ontario.

PRELIMINARY ISSUES

5The preliminary issues to be decided are:

1. Is the applicant barred from proceeding to a hearing for the following benefits proposed by Midland Wellness Centre (‘Midland”) because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule?

i. $3,122.30 for chiropractic services in a plan dated January 16, 2023;

ii. $2,797.60 for chiropractic services in a plan dated March 7, 2023;

iii. $2,472.90 for chiropractic services in a plan dated April 13, 2023;

iv. $2,296.00 for chiropractic services in a plan dated June 19, 2023; and

v. $1,973.60 for chiropractic services in a plan dated October 5, 2023.

SUBSTANTIVE ISSUES

6The substantive issues in dispute are:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit? Note: The parties agree the MIG limits have not been exhausted and $25.60 remained at the date of the case conference.

2. Is the applicant entitled to $255.60 ($1,300.00 less $1,074.40 approved) for chiropractic services, proposed by Midland Wellness Centre in a treatment plan/OCF-18 (“plan”) dated December 20, 2022?

3. Is the applicant entitled to $3,122.30 for chiropractic services, proposed by Midland Wellness Centre in a plan dated January 16, 2023?

4. Is the applicant entitled to $2,144.93 for psychological services, proposed by Midland Wellness Centre in a plan dated March 10, 2023?

5. Is the applicant entitled to $2,797.60 for chiropractic services, proposed by Midland Wellness Centre in a plan dated March 7, 2023?

6. Is the applicant entitled to $2,472.90 for chiropractic services, proposed by Midland Wellness Centre in a plan dated April 13, 2023?

7. Is the applicant entitled to $2,296.00 for chiropractic services, proposed by Midland Wellness Centre in a plan dated June 19, 2023?

8. Is the applicant entitled to $1,973.60 for chiropractic services, proposed by Midland Wellness Centre in a plan dated October 5, 2023?

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

RESULT

7The applicant remains subject to the MIG.

8The respondent is not liable for any expenses incurred pursuant to the treatment plans described in paragraphs [6]2 and [6]4.

ANALYSIS

Preliminary Issue – Application of Section 55(1) of the Schedule

9The respondent submits the applicant failed to attend the neurological assessment s.44 Insurer Examination (“IE”) scheduled for July 15, 2024 and rescheduled to September 10, 2024; subsequently the respondent sent a letter on September 27, 2024 advising the applicant as a result of his nonattendance at the IEs and his non-compliance with the s.44 of the Schedule, the treatment plans in dispute were denied.

10The respondent also submits it sent the applicant an amended notice of assessment on March 18, 2025 and email correspondence on March 17, 2025, March 26, 2025, April 7, 2025, April 21, 2025, April 30, 2025, and May 20, 2025, requesting the applicant to reschedule the IE without response by the applicant.

11The respondent submits s. 44(1) of the Schedule provides for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise.

12Further, the respondent submits s. 44(9) of the Schedule requires the insured person to cooperate with the examination and to submit to all reasonable examinations requested by the examiner. Section 55(1) of the Schedule requires the insured person to cooperate with the examination and to submit to all reasonable examinations requested by the examiner; and, that an insured person shall not apply to the Tribunal if the insurer has provided notice of an IE under s. 44 and the insured has not complied.

13The respondent submits its notices of June 20, 2024 and August 1, 2024 were valid and sufficient, pursuant to Section 44(5) of the Schedule; and if insufficient, its amended notice of assessment dated March 18, 2025 cured any deficiency. The respondent also submits that the applicant is noncompliant with s.44 of the Schedule and, as a consequence, s. 55(1) applies. Accordingly, the respondent submits that the applicant cannot proceed before the Tribunal.

14Further, the respondent submits the onus is on the applicant to establish a reasonable explanation for non-attendance at an IE, which he has not provided to date. The respondent relies upon 17-002921 v Aviva Insurance Canada, 2018 CanLII 13179 (ON LAT), para 14, for the principle the onus for reasonable explanation for non-attendance at an IE is on the insured and para 17 for the factors that interpret was constitutes a “reasonable explanation”.

15The applicant made no submissions in reply to the preliminary issues, nor offered any submissions to the Tribunal of a reasonable explanation for his non-attendance at the scheduled IEs.

16I have reviewed the s. 44 IE notices of examination for a neurological assessment of June 20, 2024 and August 1, 2024 and find both to be valid and sufficient pursuant to s. 44(5) of the Schedule.

17Further, I have reviewed the previous two IEs, specifically, the psychological assessment by Dr. Marjan Saghatoleslami, psychologist, dated June 4, 2024 and the physiatry assessment by Dr. Alfonse Marchie, physiatrist, dated June 4, 2024. I find the neurological assessment IE relates to the applicant’s injuries and the issues in dispute, is reasonably necessary in addition to the previously described IEs to obtain a complete assessment of the applicant’s injuries. I find the scheduled neurological assessment IE that is the subject matter of the non-attendance, to be reasonably necessary pursuant to s. 44(1) of the Schedule.

18I previously found the notices of examination for the neurological assessment to be valid in compliance with s. 44(5) of the Schedule, the scheduled neurological assessment to be reasonably necessary pursuant to s. 44(1) of the Schedule, and that the applicant made no submissions to address if he had a reasonable explanation for his non-attendance at the IE. Accordingly, I find that the applicant was not in compliance with s. 44(9) of the Schedule, specifically his obligation to cooperate with reasonable s. 44 IE requests.

19Further, I find that s. 55(1) of the Schedule applies due to the applicant’s noncompliance with his obligations under s. 44(9) of the Schedule to attend the IE requested neurological assessment.

20I find the submissions of the respondent to be persuasive; the IE was rescheduled once for the benefit of the applicant; after reassessment and denial of the benefits in dispute, the respondent corresponded with the applicant on 6 subsequent occasions requesting rescheduling of the IE without reply from the applicant; as no reasonable explanation for the non-attendance was provided by the applicant; accordingly, the application cannot proceed for the issues in dispute as outlined at paragraphs [6]3, 5, 6, 7 and 8.

21The Tribunal declines to exercise its discretion under s. 55(2) of the Schedule, as the circumstances herein does not give rise to an established reason for the Tribunal to allow the application to proceed.

22I find the application cannot proceed for the issues in dispute outlined at paragraphs [6]4, 5, 6, 7 and 8, pursuant to s. 55(1) of the Schedule for the above stated reasons.

SUBSTANTIVE ISSUES

MIG

23The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.

24The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

25An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

26The onus is on the applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.

27I find the applicant did not meet his onus for removal from the MIG.

28The written hearing materials filed by the applicant did not contain submissions on the MIG. The Tribunal cannot construct submissions on behalf of a part to address the legal tests of any issues in dispute.

29The sum of the applicant’s submissions focuses on concerns with his legal representation including allegations of poor or improper legal advice including allegations of an improper relationship with the treatment clinic he attended. I note that the applicant did not have representation after the case conference and his submissions focused upon issues that are not within the jurisdiction of this Tribunal, namely: 1) an alleged improper relationship between the a rehabilitation clinic and a legal representative possibly within the jurisdiction of their governing bodies under the Regulated Health Professions Act and the Law Society of Ontario Act, 2) alleged improper legal advice that he had been removed from the minor injury guideline and had gained access of up to $65,000 in treatment, again possibly within the jurisdiction of the Law Society of Ontario.

30The applicant was also concerned and raised allegations that there was an improper relationship between the insurer’s assessors and the respondent.

31The concerns and allegations raised by the applicant are not within the jurisdiction of this Tribunal. Upon review of the issues in dispute and the applicant’s concerns and allegations in his written submissions, it appears his concerns may lay within the jurisdiction of other regulatory bodies possibly the Law Society of Ontario, the College of Physicians and Surgeons of Ontario, the College of Chiropractors of Ontario, the College of Register Psychotherapists of Ontario, the College of Psychologist and Behavioural Analysts of Ontario and the Financial Services Regulatory Authority of Ontario.

32The Tribunal cannot render decisions on issues that are not within its jurisdiction.

33The Tribunal cannot construct submissions on behalf of a party.

34I find the applicant having not made any submissions as to the application of the MIG, and the Tribunal being prohibited from making submission of behalf of any party, I am compelled to find that the applicant has not meet his onus for removal from the MIG.

35I find the applicant remains within the MIG limits.

36I find the applicant did not meet his onus for the issues outlined in paragraphs [6]2 and [6]4.

37I note that the parties agreed at case conference that $25.60 remained within the MIG limit; I further note that neither party has made any submissions that this amount has changed.

38To receive payment for a treatment and assessment plan 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.

39I find the applicant has made no submissions in regard to whether either of the treatment plans are reasonable and necessary; given the Tribunal cannot construct submissions on behalf of any party I am compelled to find that the applicant has not meet his onus and is not entitled to the treatment plans outlined at paragraphs [6]2 or [6]4.

ORDER

40The Tribunal’s final Orders:

1. The applicant remains subject to the MIG.

2. The respondent is not liable for any expenses incurred pursuant to the treatment plans described in paragraph [6]2 and [6]4.