Citation: Dacres v. TD General Insurance Company, 2026 ONLAT 25-006347/AABS

Licence Appeal Tribunal File Number: 25-006347/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:

Angella Dacres

Applicant

and

TD General Insurance Company

Respondent

DECISION

VICE-CHAIR:

Brian Norris

APPEARANCES:

For the Applicant:

Christos Kakaletris, Counsel

Imitiaz Hosein, Counsel

For the Respondent:

Orest Kuchar, Counsel

Matthew I. Wasserman, Counsel

Kevin Hye-Sung Kim, Articling Student

Court Reporter:

Marcia Gardner

HEARD: by Videoconference on February 17 & 18, 2026

OVERVIEW

1Angella Dacres (“the Applicant”) was involved in an automobile accident on September 17, 2022, and sought benefits from TD General Insurance Company (“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.

ISSUES

2The issues in dispute are:

i. Is the Applicant entitled to a medical benefit in the amount of $2,000.00 for the executive summary related to the catastrophic impairment assessment plan by Okell Rehabilitation Services Inc., dated August 7, 2024?

ii. With respect to the executive summary, is the Applicant entitled to interest on the overdue payment of benefits?

iii. With respect to the executive summary, is the Applicant entitled to an award pursuant to section 10 of Ontario Regulation 664?

iv. With respect to the Respondent’s alleged breach of its duty of good faith, is the Applicant entitled to an award and, if so, what amount?

v. Is the Respondent entitled to costs of the proceeding?

RESULT

3The Applicant is entitled to funding for the executive summary related to the catastrophic impairment assessment by Okell Rehabilitation Services, submitted via plan dated August 7, 2024, plus interest pursuant to section 51 of the Schedule.

4The Applicant is not entitled to an award.

5The Respondent is entitled to costs in the amount of $250.00.

PRELIMINARY MOTIONS

6The parties and I spent the first day of the hearing addressing four motions.

7For the first motion, the Applicant seeks an order to strike some of the Respondent’s expert reports. The Applicant submits that the addendum insurer’s examination (“IE”) reports were procured without proper notice to her, and without an opportunity for her to provide any additional information pursuant to section 44(9) of the Schedule. The Respondent’s position is that the initial notice of the catastrophic impairment IEs was sufficient and compliant, and that the addendum reports were required by the initial IE assessors because additional information was received before issuing the initial IE reports, and thus the addendum reports were a continuation of the prior process.

8I agree with the Applicant that the addendum IE reports were obtained improperly. This is because the Applicant did not receive notice of the addendum IEs, nor was she given an opportunity to provide additional information to assist in the examination, in accordance with section 44(9)(1) of the Schedule. Instead, the Respondent improperly relied on the initial IE notice to procure addendum reports to include further comment from the initial assessors. As a result, I excluded the addendum IE reports from the record. The initial IE reports were obtained with proper notice and remain part of the hearing record.

9For the second motion, the Respondent seeks an adverse inference on the basis that the Applicant failed to produce the following: updated clinical notes and records (“CNRs”) from several health care practitioners, clinics, and a hospital; an updated OHIP summary; an updated prescription summary; and a breakdown of the scoring of the psychometric testing completed by the Applicant’s expert, Dr. L. LaChance, psychiatrist. In response, the Applicant downplays the relevance of the records and submits that some documents were not produced due to inadvertence from his clerk, and that the documents weren’t required for the IE assessors to complete their catastrophic impairment assessments and reports. She further submits that any issues with Dr. LaChance’s records can be remedied through the immediate production of the records and through cross examination.

10I find that it is premature to draw an adverse inference prior to conducting the hearing and hearing from the witnesses but reserved the opportunity to do so following testimony. Counsel is responsible for compliance with Tribunal orders and is thus responsible for any inadvertence from support staff in not obtaining the records that were agreed to be produced. I further find that hearing the testimony of Dr. LaChance is required before drawing an adverse inference on the production of records related to Dr. LaChance’s report. I also highlight that the parties suggested that there may be issues pertaining to the Applicant’s health status during the period from when the initial records were produced and the present. I advised the parties that if it is demonstrated to be true, the documents that the Applicant agreed to produce would hold weight. I advised the parties that it was premature to make decision on an adverse inference with respect to the updated CNRs and advised them that I would hear submissions on the issue following the witness testimony, together with closing submissions.

11Third, I heard a motion from the Applicant to add a breach of duty of good faith and a claim for punitive damages to the issues in dispute. The Applicant submitted that the Respondent’s conduct in obtaining IE addendum reports without her consent and collecting her personal information is a volition of its duty of good faith. The Respondent disagreed and submitted that the Tribunal does not have jurisdiction to award punitive damages and that it cannot expand its powers beyond what is authorized.

12I find that the issue of disclosing personal health information falls under the Personal Information Protection and Electronic Documents Act, SC 2000, c 5 (“PIPEDA”) and is not the jurisdiction of the Tribunal in accordance with Yang v. Co-operators General Insurance Company, 2022 ONCA 178. Further, If I am wrong and the issue is not under the jurisdiction of PIPEDA, Stengenga v. Economical Mutual Insurance Company, 2019 ONCA 615 outlined that the Tribunals jurisdiction is circumscribed by statute and that none of the instruments available to me authorize an award of punitive damages. To me, the Applicant’s claim of a breach of duty of good faith should be addressed in a claim for an award under section 10 of Regulation 664.

13Fourth, the Applicant seeks an adverse inference on the Respondent’s failure to disclose all communications between it and the IE assessors. She submits that the complete accident benefit file from the Respondent included no documents demonstrating that the Respondent chose the IE assessors or delegated the responsibility to do so. She submits there is a broader concern that the IEs were not for the purpose of assisting the Respondent in the adjusting of the Applicant’s claim but rather for the purpose of litigation. She seeks a finding that the Respondent received IE reports that found her catastrophically impaired, but then had the reports edited to state otherwise.

14The Respondent submits that it is not deliberately withholding information and that it served the log notes upon the Applicant in accordance with the CCRO. It clarified that communications between it and the assessment company are completed through a separate secure platform to protect the medical information of their clients. It highlights that it requested the complete file from the assessment company and provided it as soon as it was received. It also noted that section 44 of the Schedule does not impose an obligation to disclose administrative steps in arranging IEs. Lastly, the Respondent suggests that an adverse inference request is premature at this stage and submits that it intends to produce the claims adjuster for cross examination to test the evidence, after which the Applicant can address the issue.

15I find that it is premature to conclude that an adverse inference be made prior to hearing from the relevant witnesses. I note that, from the submissions, it appears that the Respondent has disclosed the communications sought by the Applicant. I do not rule out the possibility of drawing an adverse inference, but the evidence from the witnesses should be heard first before making such a determination. The issue can be revisited in closing submissions, once the witnesses have given their testimony.

16Day two of the hearing started with the Respondent’s motion to strike the Applicants’ claim for attendant care benefits (“ACBs”). The Respondent submits that the Applicant failed to provide particulars of what expenses were incurred, and that none of the witnesses proposed for the hearing are labelled as attendant care providers, who could speak to the goods and services provided. The Applicant submits that an expense can be incurred or deemed incurred. She adds that striking the issue of ACBs due to a failure to produce receipts or a service provider would render the incurred provision in section 3(8) of the Schedule to be useless.

17I agree with the Applicant and find that it would not be appropriate to strike the Applicant’s claim for a failure to provide proof of an incurred expense. This is because the Applicant retains the right to seek entitlement to ACBs on the basis that it be deemed incurred because the Respondent unreasonably withheld or delayed the expense.

18In the last preliminary motion, the Applicant seeks an order for the Respondent to produce the entire AB file. She submits that the submissions during the first day of the hearing lead her to believe that the Respondent relied on a third party to produce some of the AB file and that there is no way to verify that it is the Respondent’s file and questions what other documents or information may be missing from the file. She submits that the Respondent uses a separate portal to communicate with the IE assessors and information from that portal was not in the disclosure.

19The Respondent submits that the Applicant is retreading the issue from the first day regarding the production of the AB file. It reiterates that the Applicant is free to cross examine the adjuster or a representative from the assessment company about the issue.

20I deny the Applicant’s motion on the basis she has not demonstrated on a balance of probabilities that the entire AB file was not produced. I have no evidence before me to doubt the Respondent’s submission that it disclosed the entire file, as ordered in the CCRO. Submissions are not evidence and none of the submissions I heard cause me to find that the complete file was not produced.

21After addressing the motions, the Applicant withdrew all her claims except for those I have listed as the issues in dispute. The Applicant stated that, and reiterated same in her closing submissions, she has a concern about the hearing structure and her ability to have a fair hearing. She did not elaborate on more on this position. However, she advised that she no longer requires oral evidence to present her case and is prepared to argue her entitlement to the remaining issues in dispute based on documents filed and her closing submissions. The Respondent agreed to this format but advised that it will seek a claim for the costs of the proceeding, stating that the scope of the hearing could have been decided prior to the motions.

ANALYSIS

Is the Applicant entitled to payment for the executive summary?

22I find that the Applicant has met her onus to demonstrate that the executive summary of her catastrophic impairment assessment reports is a separate assessment that is a reasonable and necessary component of the catastrophic impairment assessments.

23Section 25(1)(5) of the Schedule entitles the Applicant to reasonable fees for preparing an application for a determination of whether she sustained a catastrophic impairment, including any assessment or examination necessary for that purpose. Section 25(5)(a) caps assessment fees payable by an insurer to a maximum of $2,000.00 for any one assessment or examination and for preparing reports in connection with it.

24The Applicant seeks payment for the executive summary, incurred as part of her catastrophic impairment assessment reports. She submits that it is payable under the Schedule, that the Respondent provided incoherent reasons for denying payment of it, and because the Respondent commissioned its own executive summary for its IE reports. The Applicant further submits that the denial is boilerplate and does not reference anything connected to the Applicant’s claim for why it is not payable.

25The Applicant adds that the executive summary was necessary for her assessor to review the multi-disciplinary catastrophic impairment assessments to reach the conclusion that the Applicant sustained a catastrophic impairment under criterion 7, a combined whole person impairment, as a result of the accident. She submits that the Tribunal has consistently held that executive summaries are to be payable, and that the Respondent must recognize the necessity of executive summaries because they commissioned their own for the IEs.

26The Respondent submits the executive summary is not reasonable and necessary as a result of the accident and that the Applicant failed to tender submissions or evidence to support a finding that the other unapproved portions of the catastrophic impairment assessments are not reasonable and necessary and not payable. The Respondent submits that there is no evidence that an analysis was performed as part of the executive summary, and that the executive summary assessor did not assess the Applicant either in person or virtually. The Respondent relies on ZJ v. Aviva Insurance Company of Canada, 2020 CanLII 98733 (ON LAT) (“ZJ”) in support of a finding that the executive summary is merely a summary of the findings of the other specialists and does not add any detail to the ratings or scores provided by the specialists.

27I find that the executive summary is a separate assessment from the other assessments that is reasonably required for the purpose of conducting a catastrophic impairment assessment. I appreciate the reasoning outlined in Kandeepan v. Certas Direct Insurance Company, 2024 CanLII 126329 (ON LAT) (“Kandeepan”) and D.M. v. Belair Direct Insurance Company, 2019 CanLII 94049 (ON LAT) (“DM”) submitted by the Applicant. In Kandeepan the adjudicator found that the executive summary was a separate assessment that is distinct from the other assessments conducted in the catastrophic impairment analysis. In the DM the adjudicator concluded that an executive summary is a separate function, unlike a document review which is included with an assessment. I see it no differently than these adjudicators and also find that an executive summary is a separate function from the other assessments.

28I am not bound by the decisions of my peers and disagree with the reasoning in ZJ. In ZJ, the adjudicator denied funding for a catastrophic impairment executive summary on the grounds that the summary is a compilation of opinions previously provided and does not offer any fresh medical opinion on its own and merely recaps the medical opinions of various assessing physicians and assigns a numeric rating in accordance with the AMA Guidelines. As noted, I agree with the findings in Kandeepan and DM and see the executive summary as a separate function that is more than a simple document review.

29To me, the executive summary is a reasonable and necessary expense as it encompasses the required analysis to make an overall determination with respect to whether the Applicant sustained a catastrophic impairment. In this case, the Applicant’s various catastrophic impairment assessors examined her and issued reports on their findings. The executive summary assesses the reports and combines the information into a single report on the Applicant’s impairments and how and why the impairments identified by the assessors meet the criteria for a catastrophic impairment pursuant to section 3(1) of the Schedule.

30Accordingly, I find that the Applicant has met her onus to demonstrate on a balance of probabilities that she is entitled to payment of the executive summary.

The executive summary was not unreasonably withheld and delayed

31The Applicant sought an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

32The Applicant claims entitlement to an award of 50 percent of the cost of the executive summary on the basis that the Respondent knew that the executive summary is necessary, given that it procured one for itself, and that this is imprudent conduct which necessitates an award to deter other insurers from acting in a similar manner, and because it forced the Applicant to carry the economic burden of funding it herself, at a time when she is unable to work.

33The Respondent submits that its reason for withholding funding for the executive summary were valid and reasonable. It is critical of the Applicant’s decision to not call the claims adjuster to address her handling of the claim, and whether any unreasonable withholding or delay occurred. It submits that an award claim cannot stand in the absence of evidence surrounding the rationale for its decisions.

34I find that the Applicant has not met her onus to demonstrate that the Respondent unreasonably withheld funding for the executive summary. Section 44 of the Schedule provides that the Respondent is permitted to conduct insurer’s examinations (“IEs”) to determine entitlement to a benefit. There is nothing in the Schedule that precludes an insurer from conducting IEs that mirror the very benefits, or assessments, that they ultimately deny. Moreover, as outlined in the variance between the cases previously mentioned, there is no binding jurisprudence before me that provides that an executive summary is a separate assessment which warrants its own funding.

35Accordingly, I find that the Applicant has not demonstrated on a balance of probabilities that the Respondent unreasonably withheld or delayed payment of the executive summary. Therefore, I find no award payable.

No award payable with respect to a breach of duty of good faith

36I find on a balance of probabilities that the Applicant is not entitled to an award with respect to the Respondent’s alleged breach of duty of good faith.

37The Applicant claims entitlement to an award stemming from the Respondent’s conduct in obtaining addendum catastrophic impairment assessment reports without proper notice or consent. To the Applicant, the Respondent did not obtain informed consent to have her information collected, used or disclosed for the purpose of obtaining the addendum reports. She submits that the IEs were not done to determine her catastrophic impairment status, but instead for the dominant purpose of litigation.

38The Applicant claims an award in the amount of $1,500,000.00, or in the alternative, a 50 percent lump sum award based on the $1,000,000.00 funding limit for catastrophic impairments.

39The Respondent submits that the Applicant’s claim for an award related to a breach of duty of good faith is without foundation. It submits that an award is rendered on the awarding of benefits, and that benefits that are not in dispute are not part of the calculation. It submits that there is no monetary value to a catastrophic impairment designation for which to grant an award. Alternatively, the Respondent submits that the Applicant withdrew her dispute regarding a catastrophic impairment designation, thus it cannot be used in the calculation of an award.

40I agree with the Respondent on its last point and find that no award is payable because the Applicant withdrew her claim for a catastrophic impairment. Having withdrawn the issue of whether she sustained a catastrophic impairment, I find that the Applicant has withdrawn the basis for her award. An award is inherently connected to the unreasonable delay or withholding of a benefit. During the hearing, I advised the Applicant that I would consider her award claim in relation to the handling of her catastrophic impairment designation. She has however, since withdrawn her claim for a catastrophic impairment determination and no finding has been made with respect to whether she sustained a catastrophic impairment. Thus, it cannot be said that benefits relating to her potential catastrophic status were delayed or withheld. Accordingly, I am unable to find that the Respondent’s actions resulted in the unreasonable withholding or delay of benefits which would form the basis for an award.

41Having found that the Applicant has not demonstrated entitlement to an award due to a breach of a duty of good faith, it follows that I need not address the Applicant’s submissions on the quantum of an award.

The Respondent is entitled to costs in the amount of $250.00 for frivolous or vexatious behaviour by the Applicant

42The Respondent sought $500.00 in costs with respect to the hearing. It submits that the Applicant failed to comply with Tribunal orders, failed to file a final witness list, she withdrew her catastrophic impairment claim with respect to criterion 7 just prior to the hearing and after the Respondent started to prepare for it, and because the Applicant advised it that she would file a motion for contempt with respect to the production of the adjuster but never pursued it.

43The Applicant submits that the Respondent is not entitled to costs because it has not demonstrated that she acted unreasonably, frivolously, or in bad faith. She submits that the motions brought at the outset of the hearing were based on the conduct of the Respondent’s counsel, which she submits is unforeseeable, and that her contempt motion was not a threat and flowed from the adjuster’s failure to attend the first day of the hearing. Additionally, the Applicant submits that no costs should be payable as the Respondent has not demonstrated any prejudice to it with respect to her conduct during the proceeding.

44Cost may be awarded by the Tribunal if it determines that a party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. When deciding whether to grant costs, the Tribunal shall consider all relevant factors including: the seriousness of the misconduct, whether the conduct was in breach of a tribunal order, whether the behaviour interfered in the Tribunal’s ability to carry out a fair, efficient, and effective process; prejudice to the other party, and the potential impact an order for costs would have on individuals accessing the Tribunal.

45I agree with the Respondent and find that the Applicant acted frivolously or vexatiously during the proceeding when she threatened a motion for contempt. In this case, the Applicant delivered a motion for contempt to the Respondent and the Tribunal, stating a case for contempt for the adjuster who did not attend the hearing on the first day. However, the Applicant never followed through with her motion at the hearing and, when given the chance to discuss it, her counsel advised that it was “not on the table”. To me, sending contempt motion materials to the opposing party and the Tribunal but not following through on such a motion when given the opportunity at the hearing, demonstrates that the motion for contempt was made frivolously or vexatiously.

46I find that the Respondent has suffered prejudice by the Applicant’s motion for contempt. Referring a matter to the Divisional Court for contempt is an accusation that must be taken seriously. The Respondent was forced to prepare to argue the motion at the hearing with little time and had to dedicate resources to the motion, which ultimately never occurred.

47I decline to award costs in the amount of $500.00, as requested by the Respondent, and find that costs in the amount of $250.00 is appropriate in the circumstances. To me, costs in the amount of $250.00 is sufficient to address the seriousness of the Applicant’s behaviour and can act as a deterrent for future parties at the Tribunal from filing frivolous or vexatious motions. I do not believe that the Applicant’s conduct required a half day of costs and am mindful of the financial impact that a cost award against the Applicant would cause. Thus, I conclude that costs in the amount of $250.00 are appropriate in these circumstances.

48Accordingly, I find that Applicant is liable to pay costs to the Respondent in the amount of $250.00.

Interest

49Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found that the Applicant is entitled to the unapproved cost of the executive summary, it follows that she is also entitled to interest pursuant to section 51 of the Schedule.

CONCLUSION AND ORDER

50The Applicant is entitled to funding for the executive summary related to the catastrophic impairment assessment by Okell Rehabilitation Services, submitted via plan dated August 7, 2024, plus interest pursuant to section 51 of the Schedule.

51No award is payable.

52The Applicant is liable to pay costs to the Respondent in the amount of $250.00.