Yang v. The Dominion of Canada General Insurance Company, 2026 CanLII 6208

Citation: Yang v. The Dominion of Canada General Insurance Company, 2026 ONLAT 24-004641/AABS

Licence Appeal Tribunal File Number: 24-004641/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:

Chi Sheng Yang

Applicant

and

The Dominion of Canada General Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Sareena Samra, Counsel

For the Respondent: Christopher McCormack, Counsel

HEARD: By way of written submissions

OVERVIEW

1Chi Sheng Yang, the applicant, was involved in an automobile accident on January 13, 2020, 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, The Dominion of Canada General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The preliminary issues in dispute are:

i. Is the applicant barred from proceeding to a hearing for the following benefit: Income Replacement Benefits, because the applicant failed to dispute their denial within the 2-year limitation period?

ii. Is the applicant barred from proceeding to a hearing because they wilfully made a material misrepresentation when they applied for accident benefits?

3The substantive issues in dispute are:

i. Is the applicant entitled to an income replacement benefit in the amount of $282 per week from July 14, 2023 to date and ongoing?

ii. Is the applicant entitled to $1,462.48 for chiropractic services, proposed by Easy Health Centre in a treatment plan dated March 12, 2024?

iii. Is the applicant entitled to $4,920.00 for a psychiatric rebuttal assessment and an occupational therapy assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated March 4, 2024?

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

4I find that:

i. The applicant is barred from proceeding with the issue of income replacement benefits as he failed to dispute their denial within the 2-year limitation period;

ii. The applicant is not entitled to the treatment plans in dispute, interest, or an award; and

iii. The application is dismissed.

PROCEDURAL ISSUE

5The applicant submits that the respondent’s surveillance evidence should be excluded from this written hearing. He argues that pursuant to s. 15(2) of the Statutory Powers Procedures Act, “nothing is admissible in evidence at a hearing: (a) that is inadmissible by the statute under which the proceedings arises or any other statute. The applicant argues that s. 33, s. 36, s. 37 and s. 38 of the Schedule do not authorize surveillance evidence as an adjudicative tool. Accordingly, the respondent’s surveillance evidence should be found to be inadmissible.

6The applicant’s request to exclude the respondent’s surveillance evidence is denied. Sections 33, 36, 37 and 38 of the Schedule, cited by the applicant, do not address or regulate the use of surveillance evidence. I note that surveillance evidence is regularly found to be admissible in Tribunal proceedings and the Tribunal has consistently accepted surveillance evidence as a legitimate tool to assess an applicant’s functional abilities and credibility, provided it meets evidentiary standards.

7In this case, the applicant did not argue that the specific surveillance evidence fails to meet these standards. Instead, the applicant makes a general objection that surveillance evidence is contrary to the Schedule. However, the applicant has not directed me to any binding case law or authority holding that surveillance evidence is unauthorized under s. 33, s. 36, s. 37 or s. 38 of the Schedule. I further note that the applicant had an opportunity to provide submissions in response to the surveillance evidence and as such, I do not find that he has established prejudice with the admission of this evidence.

8Accordingly, I find that the respondent’s surveillance evidence is relevant and will be admitted as evidence at this written hearing.

PRELIMINARY ISSUE

The applicant failed to dispute the denial of income replacement benefits within the two-year limitation period

Law

9Section 56 of the Schedule provides that an application to dispute a denial of a benefit shall be commenced within two years of the insurer’s refusal to pay.

10In order for the limitation period under section 56 to be triggered, the insurer must provide clear and unequivocal notice of a refusal to pay benefits. In Smith v. Co-Operators General Insurance Co., 2002 SCC 30 (“Smith”), the Supreme Court of Canada articulated the requirements that an insurer must satisfy for there to be a proper denial of benefits: straightforward and clear language to inform a person of the dispute resolution process; language directed towards an unsophisticated person; identification of the person’s rights to dispute the denial; and the relevant time limits that govern that process.

11If the respondent’s denial satisfies these requirements and the applicant fails to dispute the respondent’s denial within two years, then the onus is on the applicant to establish reasonable grounds for an extension under Section 7 of the Licence Appeal Tribunal Act, 1999 (“LAT Act”). Section 7 allows the Tribunal to extend a limitation period for filing an appeal. In considering whether to exercise its discretion to extend the limitation period, the Tribunal must consider the following four factors set out in Manuel v. Registrar, 2012 ONSC 1492, to determine if the justice of the case requires the extension:

i. The existence of a bona fide intention to appeal within the limitation period;

ii. The length of delay;

iii. Prejudice to the other party; and

iv. Merits of the appeal.

Background and parties’ positions

12The applicant was involved in an accident on January 13, 2020. On December 9, 2020 he submitted an OCF-1 to the respondent where he reported that he had not returned to his pre-accident employment as a machinist at BMD Tool & Machine. The applicant began to receive IRB payments from the respondent from November 16, 2020 to May 16, 2021. By way of a denial letter dated July 21, 2021, the respondent terminated the applicant’s IRBs. The letter stated that the respondent had confirmed with the applicant’s employer that he had returned to his regular pre-accident employment on November 16, 2020, and that in accordance with s. 53, the respondent was terminating the payment of IRBs as a result of the applicant’s misrepresentation of material facts, specifically, the misrepresentation as to the applicant’s employment status.

13The July 21, 2021 denial letter further stated that the applicant’s entitlement to IRBs was terminated due to the misrepresentation of material facts, and cited a number of examples where the applicant had “knowingly misrepresented your employment status”. The respondent stated that a $10,400.00 overpayment of IRB payments had been made from November 16, 2020 to May 16, 2021, and the respondent requested repayment pursuant to s. 52 of the Schedule. The denial letter further noted the applicant’s right to dispute the denial by filing an application with the Tribunal within the two-year time limit and provided instructions on how to file an application with the Tribunal.

14The respondent subsequently filed an application with the Tribunal in April 2023, file no. 23-004232/AABS, where it sought repayment of IRBs in the amount of $10,400.00 for the period of November 16, 2020 to May 16, 2021. The applicant submits email correspondence between his counsel and the respondent, where the applicant agreed to repay the overpayment, and the respondent subsequently withdrew its application.

15The applicant then filed his application with the Tribunal on April 14, 2024 disputing the respondent’s denial of IRBs from July 14, 2023 to date and ongoing, and the two treatment plans in dispute.

16The respondent submits that with respect to IRBs, the applicant filed his application well outside the two year limitation period stipulated in s. 56 of the Schedule. It argues that the July 21, 2021 denial letter was a clear and unequivocal denial of IRBs, in compliance with the principles set out in Smith. However, the applicant did not file his application until April 12, 2024. The respondent further submits that the applicant has not established that there are reasonable grounds for an extension of time under s. 7 of the LAT Act.

17The applicant submits that the respondent did not provide a clear and unequivocal denial of IRBs. He argues that the respondent stopped IRB payments due to misrepresentation, not on adjudication of the medical evidence in support of the IRB. The applicant submits that the respondent has always been aware of an open IRB claim, and that it had received two OCF-3s dated August 24, 2021 and March 6, 2024 in support of IRB entitlement.

18The applicant cites Traders General Insurance Company v. Rumball, 2025 ONSC 779, to argue that in similar circumstances the Divisional Court found that the claimant was not barred from appealing the insurer’s denial of her IRB claim due to the limitation period.

The respondent’s denial notice was valid

19I find that the July 21, 2021 denial letter was a clear and unequivocal denial of IRBs, and complied with the principles set out in Smith.

20The denial letter used straightforward and clear language to inform the applicant of the dispute resolution process, and identified the two-year limitation period, stating:

WARNING: TWO YEAR TIME LIMIT

You have TWO YEARS from the date of your insurance company’s refusal to pay, or reduction of a benefit, to file an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service. If you do not apply within two years, you will lose the right to dispute the determination.

21I further find that the July 21, 2021 denial letter provided clear and unequivocal notice that the respondent was terminating the applicant’s entitlement to IRBs and that the respondent refused to pay any further IRBs. The denial clearly stated that the respondent was “terminating [your] entitlement to the Income Replacement Benefit effective today, for the following reasons”. The stated reasons were that the respondent had confirmed with the applicant’s employer that he had returned to regular pre-accident employment duties and hours on November 16, 2020; that the applicant had knowingly returned back to work on November 16, 2020, when submitting a signed OCF-1 dated December 9, 2020 stating that he had not returned to work and that his injuries had prevented him from returning to work; that the applicant had falsely reported to various assessors that he had not returned to work post-accident.

22I agree with the respondent that the Court of Appeal decision Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78 is applicable to the present case. In Varriano, the Court of Appeal similarly considered whether a denial letter terminating IRBs due to the claimant’s return to full-time work was sufficient notice to trigger the two-year limitation period. The Court of Appeal held that this stated reason for the denial of IRBs was sufficiently explanatory to permit the insured to decide whether to challenge the denial of benefits. As such, I do not agree with the applicant that a denial based on a claimant’s return to work cannot be a valid denial for the purposes of s. 56.

23I further do not accept the applicant’s argument that since a subsequent OCF-3 had been provided, the respondent would have been “aware of an open IRB claim”, and thus, the limitation period was not triggered or it was re-started. In Varriano, the claimant also stopped working again and sought to resume IRBs. However, this did not re-start or extend the limitation period.

24Although the applicant argues that the recent Divisional Court decision Traders v. Rumball is binding and the most recently decided authority on this issue, I find that Traders is distinguishable from the present case. In Traders, the claimant similarly was denied further IRBs on the basis that she had returned to work. She subsequently stopped working and notified the respondent of the stoppage. Further correspondence was sent to the claimant requesting additional documentation to assess the insured’s claim. On judicial review the Divisional Court upheld the Tribunal’s original preliminary issue decision, which found that the initial denial was not a sufficient “clear and unequivocal notice” to trigger the two-year limitation period.

25While I agree with the applicant that some facts in Traders are comparable to the present case, the Divisional Court in Traders made particular note of language in the initial denial letter stating that while IRBs were being terminated “(s)hould you be off work again due to injuries sustained as a result of the subject motor vehicle accident, we would require an updated Disability Certificate (OCF-3) to determine your eligibility”. The Divisional Court found that this language was a representation that the claimant may be eligible for IRBs if she were off work again and submitted a new OCF-3. As such, it was only a “qualified termination of IRB benefits”, and the Tribunal’s findings that the denial letter was “ambiguous” was correct.

26In the present case, the June 21, 2021 denial letter did not contain any such qualifying language. Rather, the denial clearly and unequivocally stated that the applicant’s entitlement to IRBs is terminated. Accordingly, I agree with the respondent that the present matter is distinguishable from the fact pattern in Traders. Given that I have found that the respondent’s denial letter was compliant with the principles in Smith, the two-year limitation period set out in s. 56 was triggered. The applicant does not dispute that he filed his application with the Tribunal on April 14, 2024, which is well-outside the two-year limitation period. Accordingly, I find that the applicant is not compliant with s. 56 of the Schedule.

Section 7 of the LAT Act

27I find that the applicant has not established that there are reasonable grounds upon which to grant an extension of the time limit, pursuant to s. 7 of the LAT Act.

28With respect to the four factors set out in Manuel v. Registrar, the applicant has not directed me to evidence of a bona fide intention to appeal the IRB denial within the limitation period. Rather, the respondent has led evidence that the applicant had previously filed a Tribunal application on July 24, 2023, where the applicant had not raised IRBs as an issue in dispute. I further find that the delay in this case is substantial, being almost one year outside of the two-year limitation period. While I accept that there is prejudice to the applicant in prohibiting the IRB claim, there is also prejudice to the respondent in allowing the claim to go forward, particularly given the length of the delay.

29Finally, with respect to the merits of the claim, the applicant relies on his affidavit to establish that he is unable to fulfill the tasks of his employment and argues that the medical evidence also confirms that he suffers from ongoing pain and psychological impairments. However, the respondent has also provided surveillance evidence showing that the applicant was working in June 2022 and February 2023, despite having previously stated that he was unable to return to work post-accident. The respondent has also provided email correspondence between the respondent and the applicant’s employer and the applicant’s employment file, which establish that the applicant had worked full time from November 16, 2020 to August 18, 2021, and again from May 16, 2022 to July 2023, and that the reason for both work stoppages was not performance related but rather, they were temporary layoffs due to a shortage of work.

30When considering the Manuel factors, all four factors do not need to be satisfied, rather, an analysis and balancing all the factors as discussed above is required. After a consideration of the four factors, I find that the applicant has not established that the justice of the case warrants extending the limitation period for the IRB.

SUBSTANTIVE ISSUES

OCF-18 dated March 12, 2024 in the amount of $1,462.48 for chiropractic services

31I find that the applicant has not met his onus to prove, on a balance of probabilities, that the proposed chiropractic services are reasonable and necessary.

32To receive payment for a treatment and assessment plan under s. 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.

33The applicant has provided limited submissions on the reasonableness and necessity of the proposed treatment plan. Rather, he provides the general submission that physical therapy is helpful for his pain. However, the applicant does not direct me to specific medical evidence in support of this claim. In my view, it is not the Tribunal’s role to sort through the applicant’s medical evidence, or to search for support for the applicant’s position in the reports provided: see Dooman v. TD Insurance Co. 2025 ONSC 184 at para. 50

34I further note that in his submissions, the applicant noted that he began attending chiropractic treatment in 2024, but the treatment records reveal that on “multiple occasions, it was indicated that the Applicant’s pain in his neck, shoulders and left arm was becoming worse”. Accordingly, the applicant has not directed me to evidence that he has sustained benefit with prior treatment.

35Without specific submissions and evidence establishing that the goals of treatment were being met with prior treatment, or that such treatment was recommended by his treating physicians, I find that the applicant has not established that the OCF-18 for chiropractic treatment is reasonable and necessary.

OCF-18 dated March 1, 2024 in the amount of $4,920.00 for psychiatric and an occupational therapy rebuttal assessments

36I find that the applicant has not established entitlement to the psychiatric and occupational therapy rebuttal assessments.

37In its submissions, the respondent states that the March 1, 2024 OCF-18 was denied as catastrophic assessments had already been previously approved and that there is no coverage for rebuttal assessments under the Schedule.

38The applicant has not provided any submissions on this treatment plan, and why rebuttal assessments were reasonable and necessary. Nor has the applicant addressed the respondent’s argument that rebuttal assessments are not payable under the Schedule. Without any specific submissions with respect to this treatment plan, I find that the applicant has not established that the rebuttal assessments are reasonable and necessary.

Interest

39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.

Award

40The applicant sought an award under s. 10 of Reg. 664. Under s. 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. The applicant provides general submissions stating that the respondent acted in a high-handed manner and ignored the applicant’s medical records. However, the applicant does not direct me to specific examples to support this assertion, or that the respondent unreasonably withheld or delayed the payment of benefits. Accordingly, the applicant has not established that an award is payable.

ORDER

41I find that:

i. The applicant is barred from proceeding with the issue of income replacement benefits as he failed to dispute their denial within the 2-year limitation period;

ii. The applicant is not entitled to the treatment plans in dispute, interest, or an award; and

iii. The application is dismissed.