Baldoz v. Aviva Insurance Company of Canada, 2026 CanLII 48388

Licence Appeal Tribunal

Citation: Baldoz v. Aviva Insurance Company of Canada, 2026 ONLAT 24-013499/AABS

Licence Appeal Tribunal File Number: 24-013499/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:

Maria Baldoz

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Aric Bhargava

APPEARANCES:

For the Applicant: Mobina Khan, Counsel

For the Respondent: Mark Vella, Counsel

HEARD: By way of written submissions

OVERVIEW

1Maria Baldoz, the applicant, was involved in an automobile accident on November 28, 2021, 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, Aviva Insurance Company of Canada, 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. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to $3,380.90 for chiropractic services, proposed by Aqua Wellness Centre Inc. in a treatment plan/OCF-18 (“plan”) submitted November 15, 2022?

iii. Is the applicant entitled to $3,155.90 for chiropractic services, proposed by Aqua Wellness Centre Inc. in a plan submitted January 3, 2023?

iv. Is the applicant entitled to $2,900.90 for chiropractic services, proposed by Aqua Wellness Centre Inc. in a plan submitted May 24, 2023?

v. Is the applicant entitled to $2,735.90 for chiropractic services, proposed by Aqua Wellness Centre Inc. in a plan submitted August 11, 2023?

vi. Is the applicant entitled to interest on any overdue payments of benefits?

vii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3The applicant is subject to the MIG.

4The applicant is entitled to the treatment plans in dispute for expenses incurred between the 11th day after they were submitted until June 19, 2025, plus interest, as a result of the respondent’s non-compliance with section 38(8) of the Schedule.

5The respondent is not liable to pay an award.

ANALYSIS

Application of Minor Injury Guideline

6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration of subluxation and includes any clinically associated sequelae to such an injury.”

7The applicant may be removed from the MIG if she can establish her accident-related injuries fall outside of the MIG or, under section 18(2), that she has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if she is kept within 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.

8The applicant submits that her accident-related injuries include ongoing neck pain, right upper back pain, right upper chest pain, mid-sternal pain, left wrist pain, and that she continues to face functional limitations. The applicant submits she should be removed from the MIG on the ground of chronic pain, and psychological injuries. The applicant also submits that she should be removed from the MIG because the respondent failed to comply with the notice requirements in section 38(8) of the Schedule.

9I am not persuaded by the applicant’s submission. I find that, based on the binding decision of the Divisional Court in Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 (“Zheng, Cai”), an improper denial does not result in an applicant being removed from the MIG for the entirety of the claim. Rather, the respondent is prohibited from taking the position that the impairment falls within the MIG with respect to the specific OCF-18 for which a non-compliant notice is given and must pay the costs incurred under those plans until a compliant notice is given.

10The respondent submits the applicant has not met her onus to be removed from the MIG. The respondent relies on the section 44 medical physician assessment prepared by Dr. Michael Hanna, physician, dated March 31, 2022, and the section 44 medical physician assessment, prepared by Dr. Shafik Dharamshi, physician, dated March 18, 2025. Dr. Hanna notes the applicant sustained temporary soft-tissue impairments affecting her neck, back, left wrist and right knee, and that her injuries are predominantly minor. Dr. Dharamshi notes the applicant has persistent pain in the left wrist and right knee; however, she has reached maximum medical improvement. The section 44 reports do not note a functional impairment as a result of her ongoing pain.

11I find the applicant has not established grounds for her removal from the MIG and she remains within the MIG because her evidence does not meet the legal test on this issue. Further, pursuant to Zheng, Cai, she cannot be removed from the MIG as a result of any contraventions of section 38(8), but rather, as addressed below, the respondent would be subject to the shall-pay provision in section 38(11) for the treatment plans.

Does the applicant have chronic pain with functional impairment or a psychological impairment that warrants removal from the MIG?

12I find the applicant has not met her evidentiary onus to prove that she suffers from chronic pain with a functional impairment or a psychological injury as a result of the accident.

13The applicant relies on the clinical notes and records (“CNRs”) of Dr. Rajinder Atwal, family physician, the OCF-3 dated November 30, 2021, the OCF-2 dated February 9, 2022, the OCF-1 dated December 10, 2021, and the four OCF-18s dated November 15, 2022, January 3, 2023, May 24, 2024, and August 11, 2023.

14The respondent submits the applicant’s injuries are considered minor and relies on the section 44 medical physician assessment dated March 31, 2022, prepared by Dr. Hanna, physician.

15The CNRs of Dr. Atwal note on December 7, 2021, and December 21, 2021 the applicant complained of neck pain, right upper back pain, right upper chest pain, mid sternal pain, left wrist pain, mild anxiety, on and off palpitation. The applicant returned on February 1, 2022 and the doctor notes her lower back pain and trapezius pain is improving, and I am not directed to other entries regarding the applicant’s mild anxiety. I am not persuaded the applicant’s two self-reported instances of mild anxiety warrant removal from the MIG because her family doctor did not note objective evidence of a mood or anxiety disorder, or that her anxiety rises to such a level of warranting treatment through counselling, therapy, or prescription psychotropics. Also, the applicant has not directed me to objective medical evidence of ongoing or continuous psychological complaints post-December 2021, to support her argument.

16The CNRs of Dr. Atwal, family doctor, do not describe the persistence, severity, or functional impact necessary to support a diagnosis of chronic pain. Additionally, the applicant was not referred to a specialist for a pain-related diagnosis or explain how her presentation aligns with the criteria for chronic pain or a functional impairment due to her pain symptoms.

17I place less weight on the OCF-3 dated November 30, 2021, prepared by Dr. Roy Priesnitz, chiropractor. The OCF-3 notes that the applicant has suffered a complete inability to carry on a normal life and notes a recovery period of 9 to 12 weeks. However, the OCF-3 includes no information about the applicant’s impairments, other than to note the applicant’s injuries include sprain/strain of shoulder, thoracic spine, and injury of tendon at neck level. Moreover, the OCF-3 refers to the OCF-1 and that does not provide any information on the applicant’s chronic pain, functional impairment, or psychological injuries.

18I do not place weight on the OCF-18s alone as the CNRs of Dr. Atwal are not supportive of the information contained in the OCF-18s. It is also well established by this Tribunal that OCF-18s on their own are not sufficient to demonstrate entitlement. I find the OCFs alone are not sufficient for meeting the onus to establish entitlement to coverage beyond MIG limits.

19In review of the evidence, the applicant’s claim of chronic pain with a functional impairment, or a psychological injury is not supported because the medical evidence before me does not corroborate that her accident-related injuries warrant removal from the MIG.

20I find on a balance of probabilities that the applicant has not met her onus and is subject to treatment within the MIG limit.

21I find the applicant is entitled to the treatment plans in dispute for expenses incurred between the 11th day after they were submitted until June 19, 2025.

22As I have determined that the applicant is not removed from the MIG, I need not determine whether the treatment plans in dispute are reasonable and necessary pursuant to section 15 and 16 of the Schedule. However, the applicant’s submissions with respect to the treatment plans also focus on section 38(8) and 38(11).

23Under section 38(8), an insurer has the obligation to, within 10 business days after it receives a treatment plan, provide an insured person with a notice identifying the medical and all of the other reasons why the insurer finds the treatment plan not to be reasonable and necessary. If the insurer fails to give a notice in accordance with section 38(8) in connection with a treatment plan, the following rules found in section 38(11) apply: (a) the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies, and (b) the insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

24The applicant submits that the treatment plans in dispute were not properly denied by the insurer in accordance with section 38(8) of the Schedule and that the insurer is prohibited from relying upon the MIG for denial of benefits and that this triggers section 38(11). The applicant submits the denials were based on semantics and provided no meaningful information for the applicant regarding her injuries, symptoms, or the proposed treatment.

25The respondent in its submissions concedes that it was not in full compliance with the timelines as set out in section 38 and it is responsible to pay all incurred goods starting on the 11th business day after the OCF-18s were submitted, and that its letter dated June 19, 2025 cured the defects for three of the treatment plans as of that date, specifically for issue ii. in the amount of $3,380.90, iii. in the amount of $3,155.90, and v. in the amount of $2,735.90. I will also address issue iv. in the amount of $2,900.00 below.

26The respondent also argues that it requested additional information pursuant to section 33 of the Schedule in a letter dated July 24, 2023, and by emails dated September 13, 15, 18, and 25, 2023. The respondent submits it received no reply from the applicant. The applicant provided no reply submissions and is silent on whether she has provided the additional information.

27I have reviewed the denial letters dated December 8, 2023, February 9, 2023, June 8, 2023, and August 31, 2023. I find the denial letters for the four disputed treatment plans are deficient and not in compliance with section 38(8) of the Schedule as each denial letter is outside of the ten-day notice period, and the denial letters do not provide specific information relating to the applicant’s injury or a medical reason for the denial of the treatment plans.

28I also find the respondent cured the previous deficiencies in its letter dated June 19, 2025. The June 19, 2025 letter states that the insurer “is prepared to approve any amounts incurred with respect to [the] treatment plan[s] … Proof of submission to your extended health coverage is required prior to any payments being made with respect to the benefit.”.

29Given the respondent’s non-compliance with section 38(8), section 38(11) is triggered, and the applicant is entitled to incurred expenses in relation to these treatment plans between the 11th day after they were submitted by the applicant until June 19, 2025.

30Section 47(2) of the Schedule provides that the respondent is not liable to pay a medical benefit which is reasonably available to the applicant through any other insurance plan or law. The applicant did not provide a reply submission on the issue of her collateral benefits and why she did not respond to the respondent’s section 33 request for additional information. As such, any goods and services in these treatment plans are subject to the deductions of the applicant’s extended health care coverage.

31I find the applicant is entitled to the treatment plans between the 11th day after they were submitted until June 19, 2025.

Interest

32Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found that the applicant is entitled to the incurred treatment plans, it follows that she is also entitled to interest on the overdue payment of those benefits in accordance with section 51.

Award

33The applicant sought an award under section 10 of Regulation 664. Under section 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

34The applicant submits the respondent ignored the medical evidence and established a pattern of denial that amounts to unreasonable withholding or delay of benefits.

35The respondent submits that its actions do not rise to an imprudent or inflexible level for an award to be granted. The respondent relies on the multiple emails and letters requesting additional information from the applicant to demonstrate it made attempts to reassess its position.

36I find the applicant has not established that the respondent unreasonably withheld or delayed payment of the benefits.

37I find an award is not appropriate. As no benefits have been unreasonably withheld or delayed, no award is payable.

ORDER

38The applicant is subject to the MIG.

39As a result of the respondent’s non-compliance with section 38(8) of the Schedule, the applicant is entitled to the treatment plans in dispute for expenses incurred between the 11th day after they were submitted until June 19, 2025, plus interest.

40The respondent is not liable to pay an award.