Licence Appeal Tribunal File Number: 25-007257/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:
Mariam Hassan
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Malcolm H Zoraik, Counsel
For the Respondent:
Emma Duggan, Counsel
Interpreter:
Fartun Mohamed (Hamar dialect, Somali language)
Court Reporter:
Jodi Rhodes Professional Court Reporters
HEARD: by Videoconference
March 31-April 1, 2026
OVERVIEW
1Mariam Hassan, the applicant, was involved in an automobile accident on December 2, 2024, 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, Intact 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. 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?
ii. Is the applicant entitled to a non-earner benefit (“NEB”) in the amount of $185.00 per week from December 11, 2024, to December 11, 2026?
iii. Is the applicant entitled to $2,721.09 for physiotherapy services, proposed by Dhrugi Ghandi in a treatment plan/OCF-18 (“plan”) dated April 20, 2025?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3In the applicant’s hearing submissions, she changed the period of the claim for an NEB in the amount of $185.00 per week from December 12, 2024, to date and ongoing as indicated in the Case Conference Report and Order (“CCRO”) dated October 10, 2025 to the period from December 11, 2024 to December 11, 2026. Therefore, I have reflected this change in the issues in dispute listed above.
RESULT
4The applicant has not demonstrated on a balance of probabilities that her accident-related impairments warrant removal from the MIG.
5The applicant is not entitled to an NEB.
6As the MIG limits have been exhausted, it is not necessary to consider whether the treatment plan for physiotherapy services is reasonable and necessary.
7Since there are no benefits delayed or owing, the applicant is not entitled to interest.
PROCEDURAL ISSUES
Motion to Quash Summons
8Prior to the hearing, the respondent filed a motion seeking an order from the Tribunal quashing the Tribunal’s Summons of Tshani Holmes, claims adjuster and Jonah Pataki, occupational therapist, which were issued by the Tribunal on March 20, 2026, 10 days before the hearing. because the applicant did not serve the summonses personally as is required under the Statutory Powers Procedure Act, RSO 1990, c S.22 (the “SPPA”).
9The respondent argues that the applicant did not have a reasonable expectation that either Ms. Holmes or OT Pataki would testify at the hearing. It argues that neither party listed these witnesses at the case conference, nor included them on any witness list after the case conference. The respondent submits that the applicant did not seek to amend the CCRO or file a final witness list within 21 days before the hearing pursuant to the Licence Appeal Tribunal Rules, 2023 (the “Rules”). The respondent further submits that it did not receive notice that the applicant intended to summons the above noted witnesses until 10 days before the hearing, after the summonses were issued by the Tribunal. The respondent submits that it did not have the opportunity to dispute the summonses before they were issued.
10The respondent submits that it advised the applicant that Ms. Holmes is no longer employed by the respondent, and the applicant has not made a claim for an award. The respondent advised the applicant that it does not have a forwarding address for Ms. Holmes. The respondent further submits that it assisted the applicant in locating OT Pataki for the purpose of serving the summons, by directing her to the College of Physiotherapists for his address and pointing to the CV of OT Pataki which contains his email address.
11In response, the applicant agreed that since Ms. Holmes is no longer employed by the respondent, it is not practical to serve the summons on Ms. Holmes.
12The applicant submits that her attempt to locate OT Pataki at the IE assessment centre, (the Axia Clinic) were unsuccessful, and she made no further attempts to ascertain OT Pataki’s address at the College of Physiotherapists or to attempt service by the email address found on the CV of OT Pataki, as suggested by the respondent on or about March 20, 2026.
13I denied the respondent’s motion quashing the summons for Ms. Holmes and OT Pataki because I find the summonses were properly issued by the Tribunal. I find that the applicant listed three witnesses on the CCRO, and only the applicant is expected to testify at the hearing. I find that since the applicant consents to not calling Ms. Holmes as a witness, it is not necessary to quash the summons. However, after the respondent directed the applicant to OT Pataki’s email address, the applicant was given time to attempt to reach OT Pataki to attend the hearing. I find that although the applicant has not allowed enough time to serve the summons on OT Pataki, she is entitled to continue to make efforts to do so, and I decline to quash the summons.
14After the hearing, the parties were ordered by the Tribunal to make submissions to address how the Divisional Court’s decisions in Nuroh v. TD General Insurance Co., 2025 ONSC 6997; Plante v. Economical Insurance Company, 2024 ONSC 7171; Shahin v. Intact Insurance Company, 2024 ONSC 2059; and Vivekanantham v. Certas Direct Insurance Company, 2024 ONSC 6198, affect the evidence of OT Pataki.
15The applicant submits that although personal service of the summons was not effected, she served the summons by email to OT Pataki on the first day of the hearing, but he did not attend. The applicant argues that the report of OT Pataki should be excluded because she has not had the opportunity to cross-examine OT Pataki.
16The respondent submits that the applicant did not have a reasonable expectation that OT Pataki would appear for cross-examination, since the summons was not issued until 11 days before the hearing, and he was served with the summons by email on the first day of the hearing. The respondent submits that OT Pataki was not mentioned on any witness list, and the applicant did not make reasonable efforts to serve him with the summons before the hearing. The respondent argues there is no procedural unfairness in OT Pataki’s failing to attend the hearing, because there was never a reasonable expectation of the parties that he would attend. The respondent submits that it did not receive adequate notice of the case to be met, or that the attendance of OT Pataki at the hearing was a requirement for the admission of his report into evidence. The respondent argues that it would be procedurally unfair to exclude OT Pataki’s report.
17I find that the respondent did receive notice that the applicant wanted to cross-examine OT Pataki when the summons was issued 11 days before the hearing. Although the applicant’s efforts to serve the summons were lacking, I find that procedural fairness does require that the applicant has the opportunity to test OT Pataki’s evidence, before the Tribunal considers such evidence in the decision. The Divisional Court in Nuroh discouraged the strict application of the LAT Rules which would result in procedural unfairness to a party wanting to cross examine a witness. Therefore, I find that the report of OT Pataki is excluded from evidence.
Request for an Adjournment
18In the alternative, the applicant submits that since she has been unable to locate OT Pataki for personal service of the summons, and the respondent did not assist her in providing his address, she is seeking an adjournment to allow additional time to effect personal service of the summons.
19The applicant argues that it would be procedurally unfair for the respondent to rely on the IE report of OT Pataki without her having the opportunity for cross-examination. The applicant submits that she mistakenly assumed that the respondent would be calling OT Pataki as a witness.
20I declined the applicant’s request for an adjournment because she was aware that the respondent did not intend to call OT Pataki as a witness since the date of the case conference. I find that the applicant did not have a reasonable expectation that OT Pataki would testify at the hearing, and she did not take steps available to her under the Rules to secure her position to call OT Pataki to testify or to be cross-examined at the hearing.
21I find that there was no reasonable expectation of OT Pataki’s attendance at the hearing. In fact, the respondent seeks to quash the summons of OT Pataki, thereby establishing that it has no intention of calling him as a witness, or relying on his evidence. However, the applicant has put the respondent and the Tribunal on notice that she intends to cross-examine OT Pataki by obtaining a summons 11 days before the hearing.
22I find that given the respondent’s position that OT Pataki is not a central witness, and there is procedural unfairness in the applicant not having the opportunity to cross-examine OT Pataki on his report, the Tribunal will place no weight on the report of OT Pataki.
23I find that the applicant was aware of her difficulties in serving the summons of OT Pataki within the 11 days before the hearing, and therefore, these are not extraordinary circumstances that the applicant did not or could not have known about before the first day of the hearing.
Motion to admit the log notes into evidence and add an award to the issues in dispute
24At the outset of the hearing, the applicant brought a motion for the admission of late evidence to include the adjuster’s log notes, and to add an award to the issues in dispute.
25The applicant submits that that the adjuster’s log notes were filed on the day of the hearing, and the respondent provided the log notes in accordance with the CCRO, therefore there is no element of surprise, and the respondent is not prejudiced.
26The applicant submits that the log notes are relevant to how the claim was handled by the adjuster, and there are references in the log notes to medical records and decisions made by the adjuster.
27The respondent submits that the applicant’s motion is untimely, which creates procedural unfairness. The respondent argues that the log notes were produced on November 12, 2025, and the applicant has not provided particulars of an award claim within 30 days of receiving the log notes in accordance with the CCRO. It argues that the log notes are not relevant to an issue in dispute because the applicant has not articulated a reason for an award.
28The respondent further submits that there is no adjuster to speak to the notes, and the applicant has not provided a reason for an award claim.
29The respondent opposes the admission of the adjuster’s log notes because they were filed outside the deadline prescribed under Rule 9.4.3 of the Rules or 21 days before the hearing. The respondent submits that the applicant must provide a reason for the late filing since it has breached the Rules.
30Rule 9.4.3 specifically provides that the applicant was required to file with the Tribunal, and serve on the respondent, a copy of the evidence and authority brief it intended to rely on, no later than 21 days before the hearing. Rule 9.4.4 provides that the Tribunal may consider late filed materials after hearing the parties’ submissions on the relevant factors set out in Rule 9.3.
31After hearing the parties’ submissions, I find that the applicant has not persuaded me that she has a specific reason for claiming an award or for the late filing of the adjuster’s log notes. I find that the log notes are not relevant to an issue in dispute.
ANALYSIS
The applicant has not demonstrated that she suffers from accident-related injuries that warrant removal from the MIG
32I find that the applicant has not demonstrated that she suffers from accident-related physical and functional impairments, nor has she demonstrated that she suffers from accident-related psychological impairments. She has not demonstrated that she sustained impairments which warrant removal from the MIG.
33Section 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 in accordance with the MIG. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
34The applicant bears the burden of proof to establish that her injuries are not minor as defined by the Schedule, and that the requested treatment is reasonable and necessary.
35An 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 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.
36The applicant testified that she sustained injuries to her low back and left leg as a result of the accident. She testified that she developed pain and shakiness in the left arm after the accident. The applicant testified that she has returned to her pre-accident level of functioning in a reduced capacity. The applicant did not provide evidence, nor did she direct me to any medical evidence in support of a physical or psychological impairment in support of her removal from the MIG.
37On cross examination, the applicant agreed that she was on disability in Saskatchewan before the accident due to a deformity in her left arm. She also agreed that the pre-existing condition involving her left upper extremity would not prevent her from achieving maximum recovery within the MIG limits.
38In response, the respondent submits that the applicant’s injuries are soft tissue in nature and fall within the definition of minor injury under the Schedule. The respondent submits that the applicant has not provided medical documentation in support of a claim for chronic pain with functional impairment, or psychological impairment to warrant removal from the MIG, and I agree. The respondent relies on the s.44 IE report dated December 1, 2025, by Dr. Rajdeep Bains, general practitioner. In her report, Dr. Bains concludes that the applicant sustained uncomplicated soft tissue injuries in the accident, and a full recovery is expected. Dr. Bains indicates that the applicant has returned to the majority of her pre-accident activities of daily living, and her personal care needs are unchanged from prior to the accident.
39I find that the applicant has not met her burden of establishing that her accident-related impairments involving her back and left leg are beyond uncomplicated soft tissue injuries with no residual functional impairment. In addition, the applicant does not point or direct me to any CNRs of her treating physicians in support of her removal from the MIG. The applicant does not mention any functional restrictions, or psychological symptoms.
40I find that the applicant has not proven on the balance of probabilities that she suffers from an accident-related physical or psychological impairment warranting removal from the MIG. I find that the applicant has not discharged her onus of establishing entitlement to treatment outside the MIG, nor does she direct or point me to medical evidence in support of the existence of a physical or psychological impairment arising from the accident that would warrant removal from the MIG.
Is the applicant entitled to an NEB pursuant to s. 12(1)?
41The applicant has not met her onus to establish eligibility for an NEB.
42Section 12(1) of the Schedule provides that an insurer shall pay an 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.
43Section 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.”
44The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, (“Heath”) which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
45The applicant testified that she has not returned to her pre-accident level of activities of cooking and cleaning due to her accident-related injuries. The applicant testified that before the accident, she drove her nieces to school, assisted her elderly mother with cooking, cleaning and grocery shopping. The applicant testified that she returned to light housekeeping after the accident. The applicant testified that currently she is able to do laundry once per month, some grocery shopping, cooking and cleaning in the bathrooms and bedrooms, including deep cleaning under the bed.
46The applicant testified that she attended online college courses before the accident, which she has continued after the accident. The applicant testified that she attends online classes five days per week, at 3-4 hours per day, which is the same as before the accident. She testified that she continued to drive her nieces to school and attend physiotherapy treatments until September 2025, when she stopped driving because her car insurance lapsed.
47On cross examination, the applicant agreed with Dr. Bains’ opinion in the March 4, 2025, report that her prior level of functioning due to her pre-existing left upper extremity did not change after the accident.
48The applicant did not testify or direct me to any evidence to address her substantive entitlement to an NEB, other than the Disability Certfiicate (“OCF-3”) dated December 12, 2024, completed by Nileshkumar Patel, physiotherapist, which indicates she has limitations in lifting, pushing, pulling, bending, and twisting due to pain. The applicant submits that she meets the test for an NEB because she did not return to her pre-accident activities at the same level.
49The applicant submits that neither of Dr. Bains’ reports should be given any weight, because she does assessments for insurers, her opinion is biased, there was no interpreter for the first assessment, and Dr. Bains misinterpreted the test for an NEB. The applicant argues that the test for an NEB is not a total impairment but rather she meets the test because she returned to her pre-accident activities in a reduced capacity.
50Dr. Bains testified that during her assessment on February 25, 2025, the applicant reported that she had returned to her pre-accident activities of driving, light housekeeping, caring for her nieces, and there is no evidence that the applicant has a complete inability to carry on a normal life. In Dr. Bains’ report dated March 4, 2025, she indicates that the applicant reported that she has not returned to heavier housekeeping and social/recreational activities.
51I find that the applicant has not established that she has an impairment that continuously prevents her from engaging in substantially all of the activities in which she ordinarily engaged before the accident. The applicant testified that she attends online classes and assists her mother in caregiving of her nieces and housekeeping tasks both before and after the accident. Although the applicant may have some restrictions in her daily activities due to back and left leg pain, she has returned to her pre-accident activities. I find that there is no evidence that the applicant’s restrictions regarding her left arm were materially changed after the accident.
52For the reasons set out above, I find that the applicant has not established on a balance of probabilities that she suffered from a complete inability to carry on a normal life as a result of the accident from January 20, 2023 to date and ongoing. Although the applicant may not have returned to heavier housekeeping and recreational activities, this does not amount to a complete inability to carry on a normal life. As a result, I find that the applicant has not established substantive entitlement to NEBs.
53Since I have found that the applicant has not established that her accident-related injuries fall outside the MIG, there is no need to determine whether the disputed treatment plan for physiotherapy services is reasonable and necessary.
Interest
54Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no benefits delayed or owing, no interest is payable.
ORDER
55For the reasons set out above, I find that:
i. The applicant has not demonstrated on a balance of probabilities that her accident-related impairments warrant removal from the MIG;
ii. The applicant is not entitled to an NEB;
iii. No interest is payable; and,
iv. The application is dismissed.
Released: June 1, 2026
Lisa Holland
Adjudicator