Soney v. Motor Vehicle Accident Claims Fund (MVACF), 2026 CanLII 59519

Citation: Soney v. Motor Vehicle Accident Claims Fund (MVACF), 2026 ONLAT 25-000108/AABS

Licence Appeal Tribunal File Number: 25-000108/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:

Trenton Soney Applicant

and

Motor Vehicle Accident Claims Fund (MVACF) Respondent

DECISION

ADJUDICATOR: Aric Bhargava

APPEARANCES:

For the Applicant: Catherine Wilde, Counsel

For the Respondent: Jennifer Chapman, Counsel

HEARD: By way of written submissions

OVERVIEW

1Trenton Soney, the applicant, was involved in an automobile accident on December 3, 2016, 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, Motor Vehicle Accident Claims Fund, 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 $2,743.37 for psychological services, proposed by OSR Clinic in a treatment plan/OCF-18 (“plan”) dated April 1, 2025?

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

iii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

3The applicant emailed the Tribunal on November 20, 2025, that issue i) listed in the Case Conference Report and Order (“CCRO”) was approved by the respondent and has been withdrawn, as such, I will not address the issue of occupational therapy services in the amount of $2,198.38 in a plan dated December 8, 2022.

RESULT

4I find that:

i. The applicant is not entitled to the treatment plan for psychological services dated April 1, 2025.

ii. The applicant is not entitled to interest.

iii. The respondent is liable for an award along with interest on the award.

ANALYSIS

Psychological services

5I find on a balance of probabilities that the applicant is not entitled to the psychological services treatment plan dated April 1, 2025.

6To receive payment for a treatment and assessment plan under section 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

7The plan, signed by Dr. Oren Amitay, psychologist, is for $2,743.37 with a goal of managing symptoms of depression and anxiety, improving cognitive function, and returning to activities of normal living. Progress will be evaluated through self reporting and ongoing symptom charting, regular review of EEG data and reassessments. The plan proposes thirteen therapy, mental health and addictions sessions, two documentation support activities, one planning, service, and one assessment, total body over a period of 30 weeks. The respondent denied the plan because there was no updated medical documentation on file, and the applicant was required to undergo an insurer’s examination that determined the services were not reasonable and necessary.

8The applicant submits the treatment plan is reasonable and necessary because the treatment provides relief for the applicant’s post traumatic stress disorder. The applicant relies on Violi v. General Accident Assurance Co. of Canada, 2000 ONFSCDRS 177 where the arbitrator determined that pain relief in itself is a legitimate goal for treatment which has been adopted by this Tribunal. The applicant submits that the disputed psychotherapy services meet this goal.

9The applicant also relies on the October 30, 2019 report prepared by Dr. Robert W. Teasell, physiatrist, the clinical notes and records (“CNRs”) from OSR Clinic dated July 8, 2025, and parts of the August 5, 2025 section 44 orthopaedic independent medical evaluation prepared by Dr. Stephen W. Bartol, orthopaedic surgeon, although the applicant acknowledges the section 44 orthopaedic report is unrelated to the disputed psychological treatment plan.

10I do not find Dr. Teasell’s report helpful. The report is dated October 2019, which is three years after the accident in 2016, and some six years before the treatment plan in dispute. It notes the applicant had no psychiatric history prior to the accident and diagnosed the applicant with post-traumatic stress disorder and significant adjustment disorder characterized by depression/anxiety. The section 25 orthopaedic evaluation dated August 5, 2025 prepared by Dr. Bartol notes the applicant was seeing a psychologist for pain management counseling, however, no other details are provided.

11The applicant directs me to 108 pages of clinical notes from the treatment provider and more specifically to the period of 2022 to 2025. Based on the clinical notes of the OSR Clinic the applicant received psychological treatment in 2020, 2022, 2023, and 2025. In 2022 the applicant had two sessions for his pain management. In 2023, he had three sessions and reported problems with pain management, expressing his frustrations with limitations. From the CNRs it is not clear if the limitation referred to by the applicant was physical, emotional, or psychological.

12Although the respondent denied the disputed treatment, the applicant was receiving mental health sessions in 2025 through Indigenous Services Canada. In 2025, the clinical notes show that the applicant reported ongoing lower back and hip pain, some general frustrations with his life and a desire to get his life on track. In my view, the single entry for 2025 in the treatment notes of the OSR Clinic does not support that the applicant’s claim that the treatment is reasonable and necessary, or that he is deriving relief from the treatment, or that it is aiding in the management of his symptoms which is what the plan is meant to address.

13The applicant does not address the gap in the medical evidence of two years from August 2023 to August 2025. In my opinion, a gap of two years is significant and weakens the applicant’s claim that psychological treatment as a result of his accident-related injuries provides ongoing relief. Also, the applicant did not refer me to contemporaneous medical evidence to support the treatment plan beyond the treating provider’s clinical notes.

14The applicant also relies on White v. Travelers Insurance, 2021 CanLII 2052 (ON LAT) where the adjudicator determined that vision therapy was reasonable and necessary based on the family physician’s knowledge of the applicant and the optometrist’s medical evidence. I am not bound by other decisions of the Tribunal, and I find the case referred to by the applicant is not persuasive. In the current case, the applicant has not directed me to contemporaneous medical evidence from his family physician, and he has not established that the treating practitioner has more direct knowledge of the applicant, or that the respondent has a narrow view of the applicant’s treatment.

15The respondent submits the treatment is not reasonable and necessary as a result of the accident. The respondent relies on the section 44 psychology independent evaluation dated July 8, 2025, prepared by Dr. Jay McGrory, psychologist.

16Dr. McGrory’s report considers the disputed treatment plan, the treatment to date including the applicant’s psychiatric history and that he has not been in contact with a mental health professional in over two years. The report notes the applicant is driving as needed, he does not experience passenger anxiety, he denied difficulty with depression, sleep, nightmares, or flashbacks, that he is not taking prescription medication, and that he did not exhibit significant pain behaviours. The report also notes the applicant was not experiencing accident-related psychological difficulties and that he did not meet the diagnostic threshold for a psychological disorder.

17I place more weight on Dr. McGrory’s section 44 report because Dr. McGrory’s report reflects a holistic impression of the applicant’s life and psychological condition. The applicant’s desire “to be a better person” is separate from his accident-related condition and his pain management that has improved since 2019 and based on the medical evidence I am not persuaded that the disputed treatment is reasonable and necessary.

18For the reasons above, I find that the applicant has not established, on a balance of probabilities, that the treatment plan is reasonable and necessary. The applicant is not entitled to payment of the treatment plan.

Interest

19Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As no benefits are owed, no interest is payable.

Award

20The applicant sought an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50% of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

21The applicant’s award submission is focussed on the occupational therapy treatment plan dated December 8, 2022, and submitted January 11, 2023, in the amount of $2,198.38 that was approved on November 20, 2025. The applicant argues that the treatment was unreasonably delayed and requests an award of 50%, along with interest at 2% per month, compounded monthly from the date of entitlement. The applicant submits the respondent failed to appropriately handle the claim, issued vague boilerplate denials, ignored years of medical evidence, and delayed the payment of benefits.

22The applicant relies on the adjuster’s log notes and argues that it was unreasonable for the respondent to only rely on the section 44 reports prepared by Dr. S. W. Bartol, orthopaedic surgeon, and Dr. McGrory, psychologist, that do not reflect the full extent of the applicant’s injuries.

23I give little weight to the adjuster’s log notes because two entries noting the treatment plan was received and denied does not, in my view, prove entitlement to an award. While I agree there is limited information in the two log note entries, in my view it does not imply that the medical evidence was not reviewed or considered. An insurer is not held to a standard of perfection, but rather, it should be held to a standard of reasonableness.

24The respondent submits that it did not unreasonably delay or withhold benefits, and that it undertook proper steps to requests insurer’s examinations that are reasonable and necessary to determine the applicant’s entitlement to benefits. I find that section 44 of the Schedule states that an insurer may require an insured person to be examined by a health professional however, in my view, this does not entitle insurers to withhold or delay payment of benefits unnecessarily or without explanation.

25In determining the type of conduct for which an award is appropriate, the applicable standard is set out in Wayne Allan Plowright v. Wellington Insurance Company, 1993 ONICDRG 66 (“Plowright”). According to Plowright, the insurer’s conduct must rise to the level that is found to be excessive, imprudent, stubborn, inflexible unyielding or immoderate respect to the respondent’s decision-making.

26There is no dispute whether the respondent is entitled to requesting insurer’s examinations in order to appropriately adjust the file. While the applicant acknowledges that he did not attend the initially scheduled insurer’s examination, through his counsel he made a request on May 10, 2023 and June 6, 2023 to re-schedule the examination. The respondent did not address why another date for the insurer’s examination was not scheduled at the applicant’s request, or the reason for delaying the payment of the occupational therapy treatment until November 20, 2025.

27In my view, the occupational therapy treatment plan was unreasonably withheld by the respondent because the respondent has not provided an explanation for not re-scheduling the insurer’s examination, or how it subsequently determined the occupational therapy treatment plan was approved, almost two years after being submitted, without the insurer’s examination that it initially requested.

Quantum

28Based on Tribunal case law, the following factors should guide an analysis as to quantum: the overall length of the delay, the blameworthiness of the insurer’s conduct, the vulnerability of the insured person, the need for deterrence, and the advantage wrongly gained by the insurer from the misconduct.

29There is an obligation to expedite the assessment of claims by the respondent. I have considered that the delay was approximately 31 months from the applicant’s request to re-schedule the section 44 insurer’s examination to the approval of the occupational therapy treatment plan. This is an aggravating factor.

30I do not have mitigating factors or a reasonable explanation for the respondent maintaining the denial of the occupational therapy treatment or for the respondent’s lack of communication. Accordingly, this is an aggravating factor.

31A review of the evidence, including the applicant’s age as a minor at the time of the accident indicates that the applicant is significantly vulnerable. This is an aggravating factor.

32There is no direct evidence of harm or potential harm directed at the applicant by the respondent’s conduct. This is a mitigating factor and a reduction of 10% is warranted.

33It is generally accepted that the quantum should not be larger than necessary to further the goal of deterrence but needs to be large enough to act as a deterrence. The applicant seeks 50% and the respondent argues no award is warranted. I find this factor weighs heavily on the facts of this case. There should be a strong deterrence in withholding or delaying payment of treatment plans when the parties agree that the services are necessary. This is an aggravating factor.

34There is no evidence of an advantage wrongfully gained by the respondent. This is a mitigating factor and a reduction of 10% is warranted.

35I find the highest allowable award would be excessive. In the circumstances, I find that an award of 20% is appropriate. I do find that the evidence supports an award higher than a minimal amount given the length of the delay and the blameworthiness of the respondent’s conduct and the vulnerability of the applicant. I find that the applicant has demonstrated that the respondent’s conduct has risen to the level described in Plowright.

36Therefore, for the reasons above, on a balance of probabilities, I find an award of 20%, along with interest at 2% per month, compounded monthly from the date of entitlement is appropriate because the respondent unreasonably withheld and delayed payment of the occupational therapy treatment plan.

ORDER

37For the reasons outlined above, I find that the applicant is not entitled to the psychological services dated April 1, 2025.

38As there are no overdue benefits, the applicant is not entitled to interest.

39The respondent is liable for an award along with interest on the award.