Citation: Xu v. Allstate Insurance Company of Canada, 2026 ONLAT 24-014015/AABS

Licence Appeal Tribunal File Number: 24-014015/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:

Yiran Xu

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR: Brian Norris

APPEARANCES:

For the Applicant: Sareena Samra, Counsel

For the Respondent: Neil Colville-Reeves, Counsel

HEARD: By way of written submissions

OVERVIEW

1Yiran Xu (“the Applicant”) was involved in an automobile accident on November 3, 2021, and sought benefits from Allstate Insurance Company of Canada (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2In his written submissions, the Applicant withdrew the following claims: entitlement to an occupational therapy treatment plan/OCF-18 (“plan”), submitted August 19, 2024; entitlement to a plan for assistive devices, submitted October 2, 2024; and a partially approved plan for physiotherapy, submitted November 6, 2024. Thus, only the remaining issues in dispute are addressed in this decision.

ISSUES

3The issues in dispute are:

i. Is the Applicant entitled to medical benefits submitted via OCF-6 in the amounts and dates as follows: i. $75.00, dated April 25, 2023; ii. $85.35, dated April 25, 2023; iii. $98.00, dated May 16, 2023; iv. $52.27, dated May 29, 2023; v. $18.78, dated November 6, 2023; and vi. $160.79, dated August 5, 2024?

ii. Is the Applicant entitled to a housekeeping and home maintenance (“HH”) benefit in the amount of $100.00 per week for the period from September 4, 2024, to January 14, 2025?

iii. Is the Applicant entitled to interest on any overdue payment of benefits?

iv. Is the Applicant entitled to an award pursuant to section 10 of Regulation 664?

RESULT

4Upon receipt of the Applicant’s submissions and evidence, the Respondent agreed to pay the expense in the amount of $85.35, submitted via OCF-6 dated April 25, 2023. The issue is no longer in dispute.

5The Applicant is entitled to prescription expenses in the amount of $18.78 for Apo-Lorazepam, plus interest pursuant to section 51 of the Schedule. Otherwise, I find that the Applicant is not entitled to the remaining expenses.

6The Applicant is not entitled to the HH expenses claimed.

7Interest is payable on the $18.78 expense for Apo-Lorazepam, pursuant to section 51 of the Schedule.

8No award is payable.

BACKGROUND

9The Applicant sustained a catastrophic impairment as a result of the subject accident. His catastrophic impairment is based primarily on mental and behavioural impairments sustained as a result of the accident.

10At issue is his entitlement to various out-of-pocket expenses, and housekeeping and home maintenance expenses.

ANALYSIS

OCF-6 expenses

11I find that the Applicant is entitled to prescription expenses in the amount of $18.78 for Apo-Lorazepam. Otherwise, I find that the Applicant is not entitled to the remaining expenses.

12Pursuant to section 15(1)(c), medical benefits include medication incurred on behalf of an insured person as a result of an accident. Pursuant to section 38(2), the Respondent is liable to pay for reasonable and necessary drugs prescribed by a regulated health professional.

13The medications in the expense forms are as follows:

Date of expense	Prescription	Provider	Amount
August 5, 2024	Duloxetine (Cymbalta)	Dr. Jiang	$46.52
August 5, 2024	Teva-prazosin	Dr. Jiang	$32.81
August 5, 2024	Mometasone aq nasal spray	Dr. Jiang	40.23
November 6, 2023	Apo-Lorazepam (Ativan)	Dr. Xiang	$18.78
May 29, 2023	Alrex OP	Dr. Wong	$52.57
May 11, 2023	Eye exam	Dr. Wong	$98.00
April 25, 2023	Consultation	Dr. Jiang	$75.00

14The Applicant submits that the expenses are for prescription medication, doctor visits, and over the counter remedies. Specifically, he submits that his family physician, Dr. N. Jiang prescribed Auro-Mirtazapine, Duloxetine, and Apo-Lorazepam for insomnia and anxiety symptoms. He refers me to page 4, 7, 9, 11, and 15 of the CNRs from Sunny Health Clinic where Dr. Jiang practices.

15I find that the expenses claimed do not reflect the medication referred to in the CNRs from Sunny Health Clinic, as reference by the Applicant. For example, page 4 refers to a visit on January 11, 2022 in which Dr. M. Sung, family physician, refers to a prescription for Naproxen. Page 7 refers to a visit on February 22, 2022 that does not include a prescription for medication and states that the Applicant could consider pharmacology. Page 9 refers to a visit on March 28, 2022 in which Dr. A. Qu, family physician, states that it is best to let the Applicants’ treating psychiatrist determine if selective serotonin reuptake inhibitors or another medication is necessary. Page 11 refers to a June 26, 2022 visit with nurse practitioner M. Chen which suggests a trial of Trazodone for insomnia and Pantoprazole for gastroesophageal reflux disease. Lastly, page 15 refers to an August 9, 2022 visit in which Dr. Jiang provide a prescription for Cymbalta. Overall, none of the medications referred to in the CNRs, that the Applicant directed me to, are included in the expense forms in dispute.

16I have reviewed the CNRs from Sunny Health Medical in their entirety and find that the CNRs demonstrate that the Applicant’s expense in the amount of $18.78, for Apo-Lorazepam, was related to medication prescribed by a regulated healthcare professional as a result of the accident. The November 6, 2023 expense is consistent with the prescription by Dr. Xiang on September 23, 2023. Accordingly, I find that the Applicant is entitled to payment for this expense, plus interest pursuant to section 51 of the Schedule.

17The Applicant has led no evidence and tendered no submissions explaining why he submitted expenses related to ophthalmology with Dr. Wong. My review of his file does not reveal accident-related eye impairments. As a result, I find that the Applicant has not demonstrated that the ophthalmology expenses are reasonable and necessary as a result of the accident. Likewise, the Applicant has not demonstrated that blood pressure and allergy medication, and a consultation fee with Dr. Jiang are reasonable and necessary expenses as a result of the accident. Accordingly, I find that he has not met his onus to demonstrate entitlement to these expenses.

18Overall, aside from the expense for Apo-Lorazepam, I find that the Applicant has not met his onus to demonstrate that they were prescribed by a regulated healthcare professional as a result of the accident. Accordingly, the Applicant is not entitled to the remaining expenses.

Housekeeping and home maintenance

19I find that the Applicant has not met his onus to demonstrate on a balance of probabilities that he is entitled to HH expenses as claimed.

20Pursuant to section 23 of the Schedule, the Respondent shall pay up to $100.00 per week for reasonable and necessary expenses, incurred by or on behalf of an insured person, as a result of an accident for HH services, if the Applicant suffers form a substantial inability to perform the HH tasks that he would normally perform before the accident.

21Pursuant to section 36(3), a person who fails to submit a completed disability certificate is not entitled to a specified benefit, such as HH expenses, for any period before the completed disability certificate is submitted. Pursuant to section 34 of the Schedule, a person’s failure to comply with a time limit, such as that outlined in section 36(3), does not disentitle the person to a benefit if the person has a reasonable explanation.

22The Applicant submits that he is entitled to HH expenses as a result of his catastrophic impairment determination. He submits that the clinic he receives physiotherapy and occupational therapy submitted invoices to the Respondent, but that the Respondent has denied the expense “without proper reasoning”.

23The Respondent submits that it received no invoices from the Applicant with respect to his HH expenses, directly contradicting the Applicant’s submissions. To the Respondent, it never denied HH expenses because the Applicant never applied for them. The Respondent also submits that it did not receive the invoice the Applicant relies upon, and that the invoice is dated September 6, 202 for claims expenses “incurred” between the service date of September 6, 2024, and January 14, 2025. Lastly, the Respondent submits that the Applicant has never provided a disability certificate to support his claim for HH expenses, pursuant to section 36(2) of the Schedule. It submits that the explanation of benefits, dated December 16, 2024, states that it did not receive a disability certificate and asked the Applicant to have one completed and retuned for consideration of potential entitlement, which it submits the Applicant has not done.

24The Applicant had an opportunity to reply to the Respondent’s submissions but chose not to.

25I agree with the Respondent and find that the Applicant has not complied with the Schedule in his application for HH expenses, and that his evidence does not support a finding that he incurred HH expenses at the rate of $100.00 per week for the period from September 4, 2024, to January 14, 2025. Indeed, the Applicant has not submitted a disability certificate certifying his substantial inability to complete his pre-accident HH tasks. Also, the Applicant has provided no reasonable explanation for the delayed submission of a disability certificate. Further, the Applicant’s invoice for HH expense appears to pre-date the dates the services were incurred, and the Applicant has not addressed the issue, despite having an opportunity to do so. Lastly, The Applicant has not provided any reason for me to deem his HH expenses incurred due to unreasonable withholding of the benefit by the Respondent. Considering these findings, I give no weight to the invoices submitted and find that the Applicant has not demonstrated that he incurred any HH expenses as claimed.

26Accordingly, I find that the Applicant has not demonstrated on a balance of probabilities that he is entitled to the HH expenses claimed.

Interest

27Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found that the Applicant is entitled to prescription expenses in the amount of $18.78, it follows that he is also entitled to interest on that overdue amount.

28No other interest is payable because no other benefits are payable.

Award

29I find no award payable.

30The 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.

31The Applicant claims an award in the amount of 50% of the amounts withheld because, according to him, the Respondent has not taken all the steps required to manifest the utmost trust that characterizes his relationship with his insurer, to investigate the reasonableness of the Respondent’s denials, and because the Respondent sent precedent letters to him, someone who does not speak English as a first language, instead of making any steps to make a payment. The Respondent submits that it reasonably adjusted the Applicant’s claim and that the Applicant has failed to demonstrate why he is entitled to an award because he has not demonstrated that the Respondent unreasonably withheld or delayed the payment of benefits.

32I agree with Respondent that the Applicant has not met his onus to demonstrate that benefits were unreasonably withheld or delayed. The Applicant has not directed me to evidence to support his claims with respect to an award. While I found one expense payable, I find that it was not unreasonably withheld or delayed because the Applicant did not provide a prescription from his healthcare provider to support his claim. I only found the expense payable after reviewing the entirety of the CNRs to discover that it was prescribed by a regulated healthcare provider.

33Accordingly, I find no award payable.

CONCLUSION AND ORDER

34Upon receipt of the Applicant’s submissions and evidence, the Respondent agreed to pay the expense in the amount of $85.35, submitted via OCF-6 dated April 25, 2023. The issue is no longer in dispute.

35The Applicant is entitled to prescription expenses in the amount of $18.78 for Apo-Lorazepam, plus interest pursuant to section 51 of the Schedule. Otherwise, I find that the Applicant is not entitled to the remaining expenses.

36The Applicant is not entitled to the HH expenses claimed.

37Interest is payable on the $18.78 expense for Apo-Lorazepam, pursuant to section 51 of the Schedule.

38No award is payable.