Charles King v. Definity Insurance Company, 2026 CanLII 59509

Licence Appeal Tribunal

Citation: King v. Definity Insurance Company, 2026 ONLAT 25-002468/AABS Licence Appeal Tribunal File Number: 25-002468/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:

Charles King Applicant

and

Definity Insurance Company Respondent

DECISION

ADJUDICATOR: Bruce Stanton

APPEARANCES:

For the Applicant: Yanira E Monterroza, Paralegal For the Respondent: Jeremy Hanigan, Counsel

Heard: In Writing

OVERVIEW

1Charles King, the applicant, was rear-ended by another vehicle while he was stopped at an intersection on November 8, 2022. The applicant initiated a claim for accident benefits from the respondent, Definity Insurance Company, and commenced treatment. The respondent determined that the applicant's injuries fell within the definition of a minor injury and refused to pay for treatments beyond the $3,500.00 Minor Injury Guideline ("MIG") funding limit set out in the Statutory Accident Benefits Schedule ("Schedule"). The applicant applied to the Licence Appeal Tribunal ("Tribunal") for resolution of the dispute.

2The applicant contends that he should be removed from the MIG because he has a pre-existing chronic back pain condition that was aggravated by the accident and his being subject to the limits of the MIG impeded his recovery. The respondent argues that the applicant has not met his burden to demonstrate that his accident injuries are beyond minor, or that his recovery within the MIG was impeded by a pre-existing medical condition.

3The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. Accordingly, the Tribunal must determine whether the applicant's injuries were predominantly minor and, in particular, whether his pre-existing condition was aggravated by the accident such that being subjected to the MIG limits impeded his recovery, and whether he is entitled to the denied treatment plan.

ISSUES

4The 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 MIG limit.

ii. Is the applicant entitled to $2,400.00 for physiotherapy services, proposed by Back to Play Chiropractic & Sports Injuries in a treatment plan/OCF-18 dated November 6, 2023?

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

RESULT

5The applicant's injuries from the accident are predominantly minor, and he is subject to treatment within the MIG limit.

6The applicant is not entitled to the treatment plan for physiotherapy in the amount of $2,400.00.

7The applicant is not entitled to interest.

PROCEDURAL ISSUE

Notice of motion

8Following the respondent's written submissions on this matter filed with the Tribunal on November 14, 2025, the applicant filed a 3-page reply submission. In accordance with the Tribunal's Case Conference Report and Order issued May 26, 2025.

9On November 28, 2025, the respondent filed a Notice of Motion seeking to strike the applicant's reply submission (except paragraph 10). The same day, the Tribunal issued a Notice of Motion to be Heard at Scheduled Event order, establishing that the Notice of Motion would be heard as part of this hearing on the substantive issues in dispute. The applicant provided responding motion submissions.

10The respondent submits the applicant's reply submissions, save paragraph 10, repeat the same arguments he raised in his initial submissions and advances new arguments that ought to have been included in his initial submissions. It argues that reply submissions are intended to allow an applicant to respond to "new", unforeseen arguments raised by the respondent in its submissions, not to reargue points it previously raised, or to introduce new arguments. It submits the hearing process affords the respondent no opportunity to respond to an applicant's further assertions and new allegations raised in his reply and therefore, the applicant's reply, save paragraph 10, should be stricken from the hearing's evidentiary record.

11The applicant submits that, in his reply submissions for the hearing, he was merely responding to new factual assertions, new interpretations of medical evidence, new challenges to the description of the accident description, new positions regarding the delay in seeking treatment and new arguments regarding chronicity and causation, raised by the respondent in its submissions. The applicant takes the position that his reply was in order with the Tribunal's procedures and consistent with the principle that a reply is permitted when a responding party raises arguments that the other party could not have reasonably foreseen to include in their initial submissions.

12I deny the respondent's motion for the following reasons.

13The applicant's reply to the respondent's submissions for the hearing included 15 substantive paragraphs. The respondent accepts that paragraph 10 is an appropriate use of reply. Of the remaining paragraphs, I find that paragraph 1 is also an appropriate use of reply. Paragraph 2 is not truly "new" as the respondent suggests, but it will be given less weight for the reasons set out below, and the balance of the paragraphs will be given less weight due their emphasis of, or the repeating of, previous arguments, or that they were responding to assertions that could reasonably have been foreseen.

14I reject the respondent's suggestion that paragraph 1 is an inappropriate use of reply. The issue of physical damage to the vehicle was first raised by the respondent at paragraph 28 of its submissions (in relation to its belief the applicant is embellishing the severity of the accident). The only reference to physical damage raised in the applicant's initial submissions was that he was a victim of a high-speed (80 to 90 km/h) collision at which the offending vehicle was alleged to have been engaged in "street racing". I find paragraph 1 meets the intent of reply in responding to new arguments raised by the respondent that could not reasonably have been foreseen.

15The respondent submits that the applicant's assertion, at paragraph 2, that he "tried to exercise at home" to resolve his accident injuries (between the time of the accident, November 8, 2022, and when he submitted a claim for accident benefits), constitutes an improper attempt to add evidence. I disagree that the subject (exercising prior to submitting the accident benefit claim) was newly raised in the reply.

16Although paragraph 2 does not identify which sections of the respondent's submissions it is referring to, it appears the applicant is attempting to provide rationale for the delay in submitting the claim for accident benefits (OCF-1). He confirmed, in his submissions replying to the motion, that he was presenting reasons for the delay of the OCF-1 claim.

17When considering whether something alleged to have been raised for the first time in "reply" should be considered "new" (and thereby requiring that the other party have an opportunity to respond), I am guided by the Divisional Court decision in Clouthier v. Co-Operators General Insurance, 2025 ONSC 6798 ("Clouthier") which found the Tribunal erred in not considering an argument raised for the first time in an applicant's reply submission, relating to s. 34 of the Schedule.

18The Court found that the applicant in Clouthier could rely on arguments he raised in reply for several reasons including the consumer protection purposes of the Schedule. Clouthier raises the appropriateness of the Tribunal considering a party's argument raised for the first time, in reply.

19In considering the circumstances of the applicant's (in this matter) raising the issue of his exercise routine through to February/March of 2023 in an unsuccessful effort to resolve his accident injuries, I take notice that paragraph 9 of the applicant's submissions for the hearing outlined the salient points of Dr. Dennis Forrester's (the applicant's family physician) clinical notes, including from the visit of May 30, 2023. They state that "... visits to physio helped to manage the [applicant's] pain from February to March 2023, however, his ability to exercise has been compromised, as he is susceptible to back pain issues." The notes also refer to the applicant's low back pain history.

20I find paragraph 9 of the applicant's submissions for the hearing reveal that the subject of his "exercising" between the time of the accident and the time of submitting the OCF-1 is not truly "new". Additionally, paragraph 2 of the applicant's reply speaks to his accident injuries not yet being resolved, which was raised in his initial submissions at paragraphs 12, 14, 17, and 24. Accordingly, I find that paragraph 2's assertions are not an improper attempt to introduce new evidence. However, I will assign less weight to paragraph 2 because the delay in filing the OCF-1, that the applicant was attempting to rationalize, is of little consequence to the consideration of whether his accident injuries are within or fall outside of the MIG. I have no evidence before me to suggest that the delay was ill-intentioned or that it detracts from the content of the OCF-1.

21I assign less weight to paragraphs 3 through 9 of the applicant's reply because these submissions appear to be emphasizing evidence and submissions the applicant previously raised. It appears that the applicant's arguments in these paragraphs are in response to the respondent's allegation, raised at paragraph 11 of its submissions, that the applicant's accident injuries had resolved around February or March of 2023. I find that the respondent's claim is "new", as the applicant suggests, however, the applicant could have reasonably foreseen that the respondent would take such a position in this matter, given its belief that the applicant's injuries were minor (i.e., will have resolved within the scope of the MIG, and that he was in possession of the clinical notes and records of Dr. Forrester that were the source of the respondent's assertion.

22Similarly, I find paragraphs 11 through 15 will be accorded less weight. This part of the applicant's reply attempts to refute Dr. Victoria Squissato's (the IE assessor) opinion and why the applicant's medical evidence should be considered to be more reliable/persuasive. I agree that the respondent's submissions (at paragraph 31) raise a new argument (Dr. Squissato's belief that there is no evidence of chronic pain), but it is an argument the applicant could have reasonably foreseen. It is reasonable to expect that the respondent would rely on an IE assessor's evidence in its submissions to the hearing. The appropriate place to opine on why his medical evidence is more compelling than the respondent's is in his initial submissions.

23In summary, the respondent's motion is denied, however paragraph's 2 to 9 and 11 through 15 will be assigned less weight owing to their emphasis of previous arguments in the applicant's initial submissions or that they responded to new assertions the applicant could reasonably have foreseen and could have addressed in his initial submissions.

ANALYSIS

The applicant's injuries are not beyond minor as defined in the Schedule, therefore he is subject to the $3,500.00 limit of the MIG

24I find that the applicant has not established that his accident-related injuries fall outside of the MIG, or that his pre-existing injury precluded recovery by him being confined to the MIG. The applicant has not established that he suffers from chronic pain with functional impairment that would warrant his removal from the MIG.

25Section 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 or subluxation and includes any clinically associated sequelae to such an injury."

26An 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 injury or 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.

27The applicant submits that the accident exacerbated his pre-existing low back pain (from a workplace injury in 2020) and that he is now likely suffering Chronic Pain Syndrome and therefore seeks removal from the MIG.

28The respondent submits that the applicant provided no actual medical evidence or testing indicating chronic pain is present or that he has a functional impairment from the alleged chronic pain. It submits that the applicant sustained minor, soft tissue injuries which had minimal effect on his function. The respondent asserts the applicant has not met his burden to prove that his injuries are beyond minor.

29I find the applicant has not established on a balance of probabilities that his injuries from the accident are beyond minor.

30As noted above, to be removed from the MIG on the basis that the accident aggravated a pre-existing injury, the applicant must first establish that he has a documented pre-existing condition, and secondly, provide compelling medical evidence to demonstrate that the accident's exacerbation of that condition prevented him from satisfactorily recovering when subjected to the limits of the MIG. I find on a balance of probabilities that the applicant meets the first threshold (documented pre-existing condition) but does not meet the second (that it impeded recovery within the MIG).

Documented pre-existing condition, chronic low back pain

31I am satisfied that, at the time of the accident, the applicant had left-sided chronic low back pain. The applicant directs me to the pre-existing chronic pain condition appearing in the clinical records of Mississauga Hospital on January 18-19, 2023 when the applicant attended the ED there with a complaint of back pain. It notes, in the "History of Past Illness" section of the ED physician's note from that visit, that chronic left-sided low back pain was assessed previously by that ED, and that the condition had worsened. The same pre-existing low back pain history was referred to by Dr. Forrester, on May 30, 2023.

No indication the pre-existing chronic low back pain impeded recovery from accident injuries within the MIG

32On this second part of the test for removal from the MIG based on a pre-existing condition, the applicant has not directed me to any medical evidence that his pre-existing chronic low back pain prevented or prolonged his recovery from his accident injuries by being subjected to the MIG limits.

33In fact, the medical evidence reveals only one occasion, post-accident, on a January 18 and 19, 2023 visit to Mississauga Hospital, that his back pain appears to have worsened due to the accident injuries. The Hospital prescribed "a few days" of morphine and recommended follow-up with physio chiropractors, massage, ice or heat, and his GP.

34Although the visit to Hospital on January 18 and 19, 2023 suggests the applicant's chronic pain condition may have been aggravated by the accident, I am unpersuaded that the applicant's pre-existing low back pain interfered with his recovery for the following reasons.

35The applicant's evidence reveals that the next visit to Dr. Forrester did not occur until May 30, 2023, 3 months later, and that visit appears to be due to an injury the applicant sustained while doing pull-ups at the gym. The respondent directed me to the full SOAP notes of the May 30, 2023 visit to Dr. Forrester which include, under the "assessment" section, that the applicant attended due to "mechanical back pain onset less than one week ago, after being totally recovered from an episode after a car accident in November 2022." The subjective part of the SOAP notes report that, in relation to the previous accident, the applicant "went to physio a few times; the chiropractor a few times; and the pain went away February to March [2023]."

36Dr. Forrester's records give no indication that the applicant's recovery from the accident was impeded because of MIG limits. However, the applicant directed me to the report of his visit to Dr. Samir Abouna (Matheson Medical Centre) on April 16, 2025, due to low back pain complaints. Dr. Abouna's report reveals that he was observed to be walking with a cane. The record of this visit reveals that the applicant reported having done x-rays and MRIs with Dr. Forrester and was advised to do spinal surgery. The note indicates the applicant declined to proceed with the surgery. Dr. Abouna recommended that the applicant follow up with Dr. Forrester for a referral to a pain clinic. There is no record before me of a follow-up to Dr. Forrester or a pain clinic.

37I am not persuaded that the applicant's back pain complaints to Dr. Abouna in April 2025 are accident-related because Dr. Forrester's records suggest his accident injuries were resolved by February/March 2023 and an IE assessment by Dr. Squissato on July 4, 2024 (one year and 3 months after Dr. Forrester's assessment) reported that the applicant showed no signs of chronic pain nor any functional impairment.

38Given the applicant's pre-existing chronic low back pain, refusal to undergo spinal surgery as Dr. Forrester recommended, and a possible second back injury from doing pull-ups in May 2023, it seems unlikely that the back pain complaints to Dr. Abouna were the result of the accident.

39I give weight to Dr. Squissato's IE assessment, because her findings are consistent with Dr. Forrester's clinical notes and records, confirming no residual accident-related injury beyond February or March of 2023.

40Accordingly, although his documented pre-existing back pain condition appears to have been initially aggravated by the accident (in January 2023), I find the applicant has not demonstrated that it interfered with his recovery due to being subject to the limits of the MIG.

The applicant has not demonstrated that he suffers from chronic pain with functional impairment as a result of the accident

41I am not persuaded that the accident resulted in the applicant sustaining a chronic pain injury such that it also impaired his functioning.

42The applicant submits that the exacerbation of his pre-existing back pain from the accident has developed into chronic pain syndrome. He relies on a previous decision of the Tribunal in Sooknanan vs. Aviva Insurance Company of Canada, 2021 CanLII 76603 (ON LAT) ("Sooknanan"), in which an applicant was removed from the MIG by being diagnosed with chronic pain syndrome.

43I find that Sooknanan is distinguishable from the case before me because the Tribunal in that case was persuaded by a pain specialist's s. 25 report that detailed why Mr. Sooknanan was suffering chronic pain from the accident and the report was consistent with other contemporaneous medical evidence revealing chronic pain with associated functional impairments.

44In the case before me, there is no independent assessment of the applicant's chronic pain in association with the November 2022 accident, and no diagnosis of chronic pain syndrome. The references to chronic pain the applicant seems to be relying on, in his submissions and in the clinical notes of Dr. Forrester, the Hospital, and Dr. Abouna, seem to relate to a combination of his pre-existing back pain, the sports injury from pull-ups (May 30, 2023), and in the case of Dr. Abouna, pain complaints of unknown origin following both Dr. Forrester's and Dr. Squissato's conclusion that no chronic pain resulted from the accident. I am left unconvinced that the applicant suffered a chronic pain injury from the accident, which is his burden if he is to be removed from the MIG on that basis.

45The Tribunal's decision in Sooknanan was also supported by an analysis of the applicant's injuries relative to the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition ("AMA Guides") criteria for assessing chronic pain. The Tribunal is not bound by the AMA Guides but have often referred to them in determining if an injured person suffers from chronic pain. The applicant has not directed me to any analysis of his pain relative to the AMA Guides criteria.

46Moreover, with the exception of the applicant's use of a cane during the visit to Dr. Abouna, the applicant has not directed me to any evidence of how his back pain is negatively impacting his daily activities.

47I am not persuaded by the applicant's reply submissions in which he adds, as a measure his functional impairments, that Dr. Abouna recommended that he avoid pushing, pulling, lifting and sitting in a 90-degree position, and to obtain a lumbar brace, and that these are the type of recommendations a person suffering functional impairments would be given. While I accept that Dr. Abouna's recommendations may be indicative of a functional impairment, as noted above, I find it unlikely that the applicant's pain complaints to Dr. Abouna were accident related. The applicant has not directed me to any other medical evidence pointing to diminished daily activities (driving, working, recreation, household, personal care etc.) caused by his accident injuries.

48Accordingly, I find that the applicant has not established that he suffers from chronic pain with a functional disability as a result of the accident.

49I have considered the clinical records of Back to Play Chiropractic and Sports Injuries between June 14, 2023 and December 14, 2024 that are referred to me by the applicant and find that they do not provide further insights into the questions of whether his pre-existing condition was aggravated to an extent of impeding by his recovery within the MIG, or that he suffers chronic pain as a result of the accident.

50I find that the applicant has not established that he should be removed from the MIG limits by virtue of a pre-existing condition or that he suffered a chronic pain injury from the accident. I conclude that the applicant's injuries are predominantly minor as defined in s. 3 of the Schedule and he is therefore subject to treatment within the $3,500.00 MIG limit.

The applicant is not entitled to the treatment plan for physiotherapy for $2,400.00

51As I have found that the applicant's injuries fall within the MIG, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plan.

The applicant is not entitled to interest

52Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no payment of benefits is overdue or outstanding, the applicant is not entitled to interest.

ORDER

53I order the following:

i. The applicant's accident-related injuries are predominantly minor as defined by s. 3 of the Schedule;

ii. The applicant is not entitled to $2,400.00 for physiotherapy services; and

iii. The applicant is not entitled to interest.