Jane Berberich v. Aviva Insurance Company of Canada, 2026 CanLII 8137

Citation: Berberich v. Aviva Insurance Company of Canada, 2026 ONLAT 24-000986/AABS

Licence Appeal Tribunal File Number: 24-000986/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:

Jane Berberich

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Nadia Mauro

APPEARANCES:

For the Applicant: Hufriz Turel, Paralegal

For the Respondent: Jessica Rogers, Counsel

HEARD: By way of written submissions

OVERVIEW

1Jane Berberich, the applicant, was involved in an automobile accident on August 15, 2021, 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, Aviva General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2This decision is a rehearing as a result of the reconsideration decision dated January 6, 2026, that cancelled the initial decision pursuant to Rule 18.4 of the Licence Appeal Tribunal Rules, 2023. The matter was ordered to be reheard based on the parties’ submissions and evidence from the initial written hearing.

ISSUES

3The issues in dispute are:

1. Is the applicant entitled to medical benefits proposed by Downsview Healthcare Inc. as follows: a. $1,937.92 ($6,040.08 less $4,102.16 approved) for psychological services proposed in a treatment plan (“OCF-18”), dated January 25, 2022; b. $1,416.42 ($3,697.14 less $2,280.72 approved) for psychological services proposed in an OCF-18, dated September 13, 2023; and c. $1,909.64 ($4,204.32 less $2,294.68 approved) for psychological services proposed in an OCF-18, dated January 9, 2024?
2. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant is not entitled to the balance of the proposed treatment plans.

5The applicant is not entitled to interest pursuant to s. 51 of the Schedule.

PROCEDURAL ISSUES

6The applicant sent email correspondence to the Tribunal and the respondent on January 9, 2026, to clarify whether further submissions were required for the rehearing.

7The respondent replied, on January 12, 2026, stating that, “no new materials or written submissions are to be submitted by the parties.” The respondent referred to paragraph 30 of the reconsideration decision of Vice-Chair, Craig Mazerolle, dated January 8, 2026, wherein he held that, “Pursuant to Rule 18.4, the decision is cancelled. The matter shall be reheard based on the parties’ submissions and evidence from the written hearing.”

8The Tribunal responded on January 13, 2026, and confirmed that there was “no need for fresh evidence or arguments from the parties”, referencing paragraphs 30 and 32 of the reconsideration decision.

9Despite this, the applicant proceeded to file additional submissions on the hearing date, January 15, 2026, via email correspondence at 3:18 p.m. The applicant relies on paragraph 2 of the Notice of Written Hearing that states:

“If you do not make submissions for the hearing, the Tribunal may make a decision without your participation, and you will not be entitled to any further notice in the proceeding.”

10The respondent replied to the applicant’s email shortly after on January 15, 2026, reiterating its email on January 12, 2026, and the Tribunal’s correspondence on January 13, 2026, wherein it was advised that the matter was to be reheard based on the evidence and submissions from the written hearing. The respondent requested that the new submissions not be considered for the rehearing.

11The applicant sent further email correspondence on January 15, 2026, stating that although she received a response from the Tribunal on January 13, 2026, “it was not clear why the ‘Notice of Written Hearing’ was provided to the parties if the submissions were not required to be submitted. During this period, the Applicant had already completed their Response hence it was decided to be submitted so that it complies with the Tribunal’s Rules.”

12I will not consider the applicant’s additional submissions for the following reasons.

13While I acknowledge the confusing language of the Notice of Written Hearing, I find that the reconsideration decision is clear that the parties are to rely on the submissions and evidence from the written hearing. Further, the applicant received a response from the Tribunal regarding her query with respect to further submissions following the issuance of the Notice of Written Hearing.

14The Notice of Written Hearing is provided by the Tribunal to notify the parties of their upcoming hearing and obligations. While paragraph 2 of the Notice of Written Hearing speaks to making submissions, paragraph 3 clearly states, “Submissions must be filed in accordance with the Tribunal's Rules, orders and directions.” The parties are to follow the decisions and/or orders prescribed by the Tribunal. The Notice does not override this obligation. In the present case, the reconsideration decision ordered the matter to be reheard based on the parties’ submissions and evidence from the written hearing.

15It seems that, in filing additional submissions for the rehearing, the applicant’s counsel was attempting to ensure the Tribunal had the benefit of submissions in light of the confusing Notice of Written Hearing. However, as noted above, the Tribunal had already provided its Order with respect to the format for the rehearing. I find that the respondent would be severely prejudiced if the applicant’s additional submissions were to be considered because the respondent did not file rehearing submissions, relying on the Tribunal’s Reconsideration decision and order.

ANALYSIS

The applicant is not entitled to psychological services in the amount of $149.61 per hour

16I find that the applicant has not proven, on a balance of probabilities, that the balance of the OCF-18s for psychological services are reasonable and necessary.

17To 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.

18The OCF-18s were completed by psychologist, Dr. Jaqueline Brunshaw, and identified treatment goals of providing psychological counselling to help the applicant manage their emotional response to the difficulties that they are experiencing and to return to activities of normal living. The OCF-18s sought funding for the following:

i. The OCF-18 dated January 25, 2022 sought funding for 24, 1.5-hour, sessions of counselling at a cost of $224.42 per session, and documentation support activity; ii. The OCF-18 dated September 13, 2023 sought 12, 1.5-hour, sessions of counselling at a cost of $224.42 per session, and documentation support activity; and iii. The OCF-18 dated January 9, 2024 sought 14, 1.5-hour, sessions of counselling at a cost of $224.42 per session, and documentation support activity.

19The applicant submits that the respondent partially approved the aforementioned OCF-18s in the amount of $99.75 per hour, as opposed to the rate of a psychologist in the amount of $149.61 per hour. The applicant submits that the cost of the treatment plans, in the amount of $149.61 per hour, is reasonable and necessary.

20The respondent submits that the treatment plans were partially approved on the basis that they would be provided by a psychotherapist. The respondent submits that there is no reference in the Professional Services Guidelines (the “Guidelines”), issued by the Financial Services Commission of Ontario, to the fees that apply to a psychotherapist. As such, the respondent submits that an adjusted rate of $99.75 is reasonable.

21I am not bound by Tribunal decisions; however, I find that the cases relied on by both the applicant and respondent to be helpful in this matter given that the dispute is based on a quantum of services that is not explicitly prescribed by any legislation.

22The applicant relies on the Tribunal decision in J.V. v Intact Insurance Company, 2019 CanLII 76995 (ON LAT) (“J.V.”), where it was held that the psychotherapist ought to be entitled to the same hourly rate as a psychologist, or psychological associate, because the psychotherapist was registered in psychotherapy and acting within their scope and expertise. The applicant further relies on the Tribunal decision in A.S. v Aviva General Insurance, 2020 CanLII 12787 (ON LAT) (“A.S.”), where it was held that the treating psychotherapist was performing the same services as a psychologist and was thus entitled to payment at the same rate of a psychologist at $149.61 per hour.

23However, I distinguish J.V. and A.S. from the present case for three reasons.

24First, I am not persuaded that the credentials of the treating psychotherapist, Corrado Recchiuti, warrant a higher hourly rate. I have reviewed the clinical notes and records of Downsview Healthcare Inc., and Mr. Recchiuti’s session notes are signed with the designation Registered Psychotherapist (Qualifying). The Curriculum Vitae (“CV”) of Mr. Recchiuti provided by the applicant also identifies Mr. Recchiuti as a Registered Psychotherapist (Qualifying). While the applicant submits that the psychological treatments were provided by a psychotherapist registered with the Canadian Counseling and Psychotherapy Association (“CCPA”), the applicant has not provided evidence that indicates that a qualifying registered psychotherapist can provide treatment within the same scope, expertise, or breadth as a qualified psychotherapist. Mr. Recchiuti’s CV does not make this distinction either.

25Second, while I appreciate that Samantha Leandro at the applicant’s treating clinic, Downsview Healthcare Inc., sent correspondence to the respondent on July 9, 2024, and July 29, 2024, explaining why they believe a registered psychotherapist should be paid at the rate of a psychologist, the applicant has not put forward evidence to suggest that a qualifying registered psychotherapist should be paid at the rate of a qualified registered psychotherapist, or more importantly, a psychologist. In this respect, I find that there is a lack of evidence to support that the treating psychotherapist in the present case should be paid at the same hourly rate of a psychologist.

26Lastly, I have not been pointed to evidence that the qualifying registered psychotherapist would be providing essentially the same treatment as a psychologist, warranting payment at the increased rate. While the applicant submits that the OCF-18s state “Dr. Brunshaw is not providing an ongoing supervisory relationship with the treatment team,” it is unclear whether this is because the treatment provided does not require the credentials of a qualified psychologist, or whether the treatment can be administered by someone with a “qualifying” designation without the supervision of a psychologist. I find the evidence on this point to be ambiguous and unsupportive of a qualifying psychotherapist providing the equivalent treatment as a psychologist, which would warrant payment at the rate of a psychologist.

27I am persuaded by the respondent’s reliance on the Tribunal decision in Jamon v The Co-operators, 2021 CanLII 19483 (ON LAT) (“Jamon”), where it was held that the hourly rate of $91.43 for a qualifying registered psychologist was acceptable. Given that the respondent has agreed to pay an hourly rate of $99.75, which is high than the rate in Jamon, and the treating practitioner in the present case has the same designation as in Jamon, I find the rate of $149.62 to not be reasonable and necessary.

28For the sake of completeness, I note that the applicant also relied on the Tribunal decision in Johnson v Aviva Insurance Company of Canada, 2023 CanLII 77315 (ON LAT) (“Johnson”) where it was held that psychotherapy is a regulated profession and incurring costs to maintain the designation of psychotherapist attributed to the role that should appropriately be designated as a regulated profession. The applicant submits that $99.75 is consistent with unregulated providers such as social workers/counsellors. I find that the Guidelines remunerate unregulated providers at $58.19. As such, I am not persuaded that the applicant’s reliance on Johnson would justify the applicant’s entitlement to the treatment by a psychotherapist at the same rate of a psychologist.

29In sum, I find that the applicant has not proven, on a balance of probabilities, that the balance of the partially approved treatment plans is reasonable and necessary.

Interest

30As there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

31I find that:

i. The applicant is not entitled to the balance of the proposed treatment plans; ii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule; and iii. The application is dismissed.