Citation: Richards v. Wawanesa Mutual Insurance Company, 2026 ONLAT 25-001478/AABS

Licence Appeal Tribunal File Number: 25-001478/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:

Hugh Richards

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Alexander Makaronets, Counsel

For the Respondent:

Aliza Lalji, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Hugh Richards, the applicant, was involved in an automobile accident on December 5, 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, Wawanesa Mutual 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 a non-earner benefit (“NEB”) of $185.00 per week from January 5, 2023, to ongoing?

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

RESULT

3The applicant is not entitled to a NEB or interest.

ANALYSIS

Non-Earner Benefit

4I find that the applicant is not entitled to a NEB.

5Section 12(1) provides that an insurer shall pay a NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

6The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 [“Heath”]. Heath describes the definition created by the language of the Schedule as reflecting a “high threshold”. The factors set out in paragraph 50 of Heath to consider when analyzing the test for NEB are summarized as follows:

i. A comparison between the applicant’s activities and life circumstances before and after the accident.

ii. Assessing the applicant’s activities and life circumstances requires more than a snapshot in time. It involves assessing it over a reasonable period prior to the accident, the duration of which depends on the facts of the case.

iii. All of the pre-accident activities in which the applicant ordinarily engaged should be considered. Greater weight may be assigned to those activities which the claimant identifies as being important to his/her pre-accident life.

iv. The phrase “continuously prevents” means that a claimant must prove "disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted".

v. If the degree to which a claimant can perform an activity is sufficiently restricted, it cannot be said that they are truly “engaging in” the activity.

vi. In cases where pain is the primary factor that allegedly prevents the insured from engaging in his or her former activities, the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.

7The applicant submits that, prior to the accident, he was actively engaged in all of his self-care, housekeeping, and attendant care tasks. He submits that, since the accident, he has experienced profound limitations, including a 90 percent loss in his ability to perform his household chores due to pain and fatigue. He submits that he can no longer participate in substantially all of the activities that were important to him before the accident.

8The applicant relies on a report from Dr. Igor Portnoi, chronic pain physician, from an assessment on October 2, 2024. Dr. Portnoi opined that the applicant suffers a complete inability to carry on a normal life as a result of the accident, and that his condition interferes with his employment, social life, intimate relations, recreational activities, family responsibilities, and personal care. According to the applicant’s self-report to Dr. Portnoi, he was previously responsible for laundry, cleaning, grocery shopping, washing the dishes, and cooking. He reported to Dr. Portnoi that, post-accident, he was having difficulty with “most of his household chores”, but was able to clean his room, tried to cook for himself, and would wash the dishes. He also remained independent in all of his personal care tasks, although showering and dressing took a prolonged time and required breaks. The applicant reported that he previously enjoyed going on 1-hour walks, jogging, playing basketball, and socializing. He reported that he does not play basketball or jog since the accident, socializes less, and finds himself limping and feeling pain after walking for 20 minutes.

9I agree with the respondent that Dr. Portnoi did not provide a qualitative analysis of the applicant’s pre-accident activities, including how often he participated in basketball or jogging, or how important those activities were to his life. Further, Dr. Portnoi did not explain why, if the applicant was able to do some cleaning and cooking, and was independent in all of his personal care tasks, he believed that the applicant was completely unable to carry on a normal life. Additionally, despite Dr. Portnoi’s conclusion that the applicant’s intimate relations and family responsibilities were impacted, Dr. Portnoi does not provide further detail or explanation with respect to these areas. Given the lack of explanation, I find that, although the body of Dr. Portnoi’s report sheds some light on the applicant’s activities, I am not persuaded by his conclusion that the applicant suffers a complete inability to carry on a normal life.

10The applicant also relies on a report from Dr. Elena Baskakova, psychologist, from a re-assessment on May 16, 2025. Dr. Baskakova opined that the applicant suffers a complete inability to carry on a normal life, and that his impairments continuously interfere with his usual activities of daily living. The applicant reported to Dr. Baskakova that he estimated a 90 percent loss in his ability to perform household chores since the accident due to pain and fatigue, and an 80-90 percent decrease in his social life. Dr. Baskakova indicated that the applicant reported some difficulties with self-care tasks, although she did not specify which tasks. Dr. Baskakova noted that the applicant made an attempt to return to work in October 2024 as a courier, but was unable to continue working due to his injuries and ultimately resigned in December 2024. He also reported only driving when necessary, such as to appointments, and reportedly drove an estimated 70 percent less than before.

11I note that Dr. Baskakova also authored a report based on assessments on January 30 and February 12, 2024, which was addressed by the respondent but not relied upon or commented on by the applicant. The applicant reported during those assessments that he was experiencing a 50 percent loss in his ability to perform household chores, and a 50 percent loss in his social life. His energy was reportedly 40 percent lower than his pre-accident level, and he drove approximately 50 percent less due to vehicular anxiety. The applicant subsequently attended 12 psychotherapy sessions, and in a progress note dated January 6, 2025, Dr. Baskakova indicated that his moderate depression had become mild, and his severe anxiety had also become mild.

12In opining that the applicant suffered a complete inability to carry on a normal life in her most recent report, Dr. Baskakova relied on the applicant’s self-reported reduction in functionality from the re-assessment. She does not explain why his functionality worsened, especially despite receiving treatment four months earlier which appears to have improved his psychological condition. Despite the respondent raising this issue in its submissions, the applicant did not file reply submissions to address this discrepancy. I find it implausible, without a compelling explanation, that the applicant’s functionality diminished so drastically in such a short period of time. I place little weight on the applicant’s self-reported difficulties in Dr. Baskakova’s most recent report. I am accordingly not persuaded by Dr. Baskakova’s opinion that the applicant suffers a complete inability to carry on a normal life.

13The applicant also relies generally on the clinical notes and records from his family physician, Dr. Anuradha Khanna, submitting that he attended numerous times from 2023 to 2025 to express worsening of his neck, shoulder, and back pain. He submits that he received only limited success with treatment modalities at Mackenzie Medical Rehabilitation Centre and Lifemark. He also notes that he received diagnoses and injections from two pain clinics.

14I acknowledge that the applicant suffers from pain and limitations as a result of the accident. However, the existence of pain does not necessarily mean that he meets the high bar for a NEB. In his submissions, the applicant does not point to specific evidence within the clinical notes and records from his treating practitioners that speaks to his ability to engage in his pre-accident activities. Further, he does not connect these records with the NEB test. An applicant cannot simply submit evidence and leave it up to the Tribunal to connect the dots and make his case: Dooman v. TD Insurance, 2025 ONSC 184 (Div. Ct.) at para. 50.

15The respondent points out that the applicant was unemployed at the time of the accident. It submits that the applicant’s post-accident work as a courier involves driving, walking, carrying, and time-management, which demonstrates an ability to engage in meaningful daily function and breaks the continuity required to establish NEB entitlement. I note that, in his submissions, the applicant does not address his post-accident employment activities, and only briefly mentions that he was previously self-employed as a contractor. He also chose not to file reply submissions, and therefore did not address the respondent’s argument. Given the lack of information regarding the applicant’s pre- and post-accident employment activities, it is difficult to assess whether he is continuously prevented from engaging in substantially all of his pre-accident activities. This makes it difficult for the applicant to meet his burden.

16Ultimately, the applicant has not provided persuasive evidence, on a balance of probabilities, that he is continuously prevented from engaging in substantially all of his pre-accident activities. As such, I find that he is not entitled to an NEB.

Interest

17Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is not entitled to a NEB, it follows that no benefit is overdue and therefore interest is not payable.

ORDER

18The applicant is not entitled to a NEB or interest.