Awet Ghebrezghi v. Definity Insurance Company, 2026 CanLII 8172

Licence Appeal Tribunal File Number: 25-000976/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:

Awet Ghebrezghi Applicant

and

Definity Insurance Company Respondent

DECISION

PANEL: Nikisha Evans Tami Cogan

APPEARANCES:

For the Applicant: Anne Jayatilake, Counsel

For the Respondent: Nicholas Maida, Counsel

Interpreter: Mulat Abaye, Tigrinya Language

Court Reporter: Guido Riccioni

Heard by Videoconference: November 10, 12, and 13, 2025

OVERVIEW

1Awet Ghebrezghi, (the “applicant”), was involved in an automobile accident on August 8, 2022, 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 Definity Insurance Company (the “respondent”), Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant was involved in a previous accident on September 30, 2019.

ISSUES

3The issues to be decided in the hearing are:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from September 28, 2023, to August 2, 2024?

ii. Is the applicant entitled to the treatments or services proposed by Dr. Oscar Manias, DC, as follows:

a. $1,779.20 for physiotherapy services, in a treatment plan submitted May 2, 2023; and

b. $1,328.00 for physiotherapy services, in a treatment plan submitted July 21, 2023?

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

iv. Is the respondent entitled to cost?

RESULT

4For the reasons that follow, we find:

i. The applicant is not entitled to a non-earner benefit.

ii. The applicant is not entitled to the disputed treatment plans.

iii. The applicant is not entitled to interest.

iv. No costs are owed to the respondent.

v. The application is dismissed.

PROCEDURAL ISSUES

Respondent’s Motion

5The respondent filed a notice of motion on November 7, 2025, seeking the following relief:

i. Excluding Mr. Merhawi Okube, the applicant’s brother, from testifying at the videoconference hearing.

ii. An order extending the time for the respondent to challenge Dr. Oscar Manias’ qualifications as an expert witness.

iii. For the Tribunal to refuse to qualify Dr. Oscar Manias as an expert.

Witness Merhawi Okube

6The respondent submits it would be prejudicial to allow Merhawi Okube, the applicant’s brother, to testify without having time to prepare for cross-examination. The witness statement was received on Sunday November 9, 2025, at 3:43pm. The content is not what the respondent anticipated and contains new information.

7The applicant submits that the late service was an administrative error, and the applicant would be prejudiced if the witness is not allowed because the witness will provide evidence regarding the applicant’s function pre and post accident.

8We find that the brother’s testimony is presumptively relevant to the issues in dispute. We agree the applicant would be prejudiced by the exclusion of this witness, and any prejudice to the applicant cannot be overcome. However, his testimony will be restricted to the content of his witness statement. Further, to overcome the prejudice to the respondent, an extended recess was allowed between direct examination and cross examination to enable the respondent to prepare for cross-examination of the witness.

Dr. Oscar Manias, chiropractor

9The respondent submits the applicant served Dr. Oscar Manias’ curriculum vitae and acknowledgment of expert duty (AED) on November 6, 2025, three days before the hearing. The respondent seeks leave of the Tribunal to extend the time for notice of challenge of an expert witness. Further, the respondent submits that Dr. Manias’ qualifications do not rise to the level of an expert, and it would be prejudicial to the respondent to allow him to testify as an expert and provide a medical opinion.

10The applicant submits that Dr. Manias’ qualification as a chiropractor and treatment provider to the applicant qualifies him as an expert chiropractor.

11We find the curriculum vitae and AED sent to respondent’s counsel on November 6, 2025, three business days before this hearing, was not served in accordance with Rule 10 of the Licence Appeal Tribunal Rules, 2023. This Rule requires that the information about the identification of an expert witness must be exchanged at least 45 days before the hearing, unless otherwise ordered by the Tribunal.

12The respondent filed a notice of motion the day after receiving the AED, on November 7, 2025. It would be unreasonable to hold the respondent to the timelines required for challenging the applicant’s expert witness, when it was unknown that there was an intention to call an expert. Leave is granted to the respondent to challenge the qualifications of the applicant’s proposed expert witness.

13The respondent challenged the expert witness on the grounds that his qualifications and experience do not rise to the level of an expert.

14We find that as a treatment provider of the applicant, Dr. Manias is not an objective witness. On this ground alone, he does not qualify as an expert. Dr. Manias will be permitted to testify but will not be qualified as an expert witness.

Costs

15At the start of the hearing the respondent raised a motion seeking costs be added as an issue.

16The respondent submits that due to the late service of the witness statement and expert witness credentials cost should be permitted as an issue in dispute.

17The applicant opposed costs being added.

18Pursuant to Rule 19, costs can be added as an issue at any time in a proceeding. As such, costs are added to the issues in dispute, as set out above.

ANALYSIS

Is the applicant entitled to a Non-Earner Benefit (‘NEB’)?

19We find the applicant has not met his burden to prove entitlement to a non-earner benefit from September 28, 2023 to August 2, 2024.

20Section 12(1) of the Schedule provides that an insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) of the Schedule defines a complete inability to carry on a normal life as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for non-earner benefit entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which generally focuses on a comparison of the applicant’s pre- and post-accident activities, as follows:

i. A comparison between the applicant’s activities and life circumstances before and after the accident.

ii. Assessing the applicant’s activities and life circumstances requires more than a snapshot in time but involves assessing it over a reasonable period prior to the accident and the duration after is case specific.

iii. In proving “substantially all” requires looking at all the applicant’s pre-accident activities and life circumstances but greater emphasis can be placed on the ones that matter the most to the applicant.

iv. “Continuously prevents” means that it’s of a nature, extent or degree that is and remains uninterrupted.

v. “Engaging in” refers to a qualitative perspective – going through the motions may not be “engaging in,” and if doing the activity is sufficiently restricted then it’s not “engaging in”.

vi. If pain is a primary factor that prevents the applicant from engaging in their pre-accident activities, the question is not whether the applicant can physically do the acts, but are they practically prevented from engaging in those activities?

21The applicant submits that as a result of the August 8, 2022, accident, he suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. The post 104-week period ends on August 2, 2024. The applicant relies upon the Disability Certificate (OCF-3) dated December 1, 2022, the Election of Benefits Form (OCF-10) dated January 11, 2023, and the testimonies of Dr. Manias and the applicant’s brother, Merhawi Okube.

22The respondent submits that the applicant has been compensated in accordance with the provisions of the Schedule and the applicant is not owed anything further. The respondent relies on the Insurer’s Examination report of Dr. Davar Nikneshan, neurologist, Dr. Pankaj Eric Bansal, general physician, Dr. John Lee, psychologist and Famida Kanji, occupational therapist.

23The OCF-3 dated December 1, 2022, prepared by Dr. Manias, states that the applicant was not working at the time of the accident, and that the applicant can not return to work on modified hours and/or duties. Dr. Manias also testified that due to a previous accident in 2019, the applicant was unable to perform essential tasks of his employment at the time of this accident and within 104 weeks of the accident. Mr. Okube’s testimony concurred with that of Dr. Manias.

24In contrast, the applicant testified that he had full recovery from the 2019 accident, and that he was doing well in business and his social life before the 2022 accident. The applicant did not submit any evidence to support his full recovery after the first accident. The clinical notes and records prepared by Dr. Kwok, an orthopaedic surgeon, dated December 14, 2021, contradict the applicant’s testimony. Dr. Kwok noted that the applicant had musculoskeletal functional limitations that significantly affected his social life and personal life before the 2022 accident. Further, Dr. Kwok’s 2021 report stated the applicant’s injuries will prevent him from obtaining and maintaining any type of employment now and potentially into the future.

25The applicant testified that after his second accident he spent most days in his bed watching television, and that his cooking, laundry, and cleaning were done by family. He further testified that he was not able to go to the gym or have enjoyment. We note that this was consistent with his activities as reported to Dr. Manias and Dr. Kwok after the first accident. The applicant also testified that the pain comes when he cleans but he does not need help with personal care. When asked what he cannot do, the applicant testified “housework”, and for this reason he had to live with family for support.

26We note that the evidence we heard regarding the applicant’s living arrangements were highly inconsistent throughout the hearing. The applicant and his brother were unable to provide details of the applicant’s addresses or timeframes for when he resided in Guelph, Toronto, and St. Catherines, or with whom he resided. We find that we are unable to rely on this testimony to support that the applicant resided with family for support.

27Based on the evidence, including Dr. Kwok’s report, Mr. Obuke’s testimony, and the applicant’s testimony regarding his state after the second accident, we find the applicant did not recover from the first accident. His functioning and activities have not changed since the 2019 accident, such that we cannot find that it was the 2022 accident that caused complete inability to carry on a normal life.

28In reaching this conclusion, we find the applicant’s testimony and his reports to the assessor were inconsistent as to whether he was working before and after the second accident. He testified that before the accident he owned a Janpro franchise, and has owned Merhaba Shisha Lounge, which opened before his 2019 accident. Both businesses have closed for reasons unrelated to the applicant’s injuries. We note that if the applicant was working before the accident, he does not qualify for non-earner benefits.

29The applicant also testified that after the August 2022 accident, he would drive to Costco by himself to purchase and deliver supplies, such as cases of beer, water, and coffee for his restaurant that he owned. He would also drive to visit his friends on the job site just for social interaction. The applicant’s testimony contradicts the evidence that he had told Dr. Manias that he was not working, as well as Mr. Okube’s testimony that the applicant would attend his restaurant and pick up minor items for the restaurant.

30Dr. Pankaj Eric Bansal, general physician, who conducted an assessment of the applicant on May 29, 2023, issued reports dated June 30, 2023 and September 18, 2023. Dr. Bansal testified that the applicant reported he had not worked since the 2019 accident and that his symptoms were unchanged since his 2019 accident. Dr. Bansal opined the applicant did not suffer a complete inability to carry on a normal life as a result of and within 104 weeks after the 2022 accident.

31Dr. Davar Nikneshan, neurologist, assessed the applicant on June 12, 2023, and issued a report dated September 18, 2023. He also testified that the applicant had reported not working since the 2019 accident, but did not indicate why he was not working. Dr. Nikneshan did not identify any neurological cause of the applicant’s symptoms, and opined the applicant did not suffer a complete inability to carry on a normal life as a result of and within 104 weeks after the 2022 accident.

32Dr. John Lee, psychologist, conducted an assessment of the applicant on August 30, 2023, and issued a report dated September 18, 2023. He testified that the applicant reported that his 2019 injuries had not resolved and that the injuries he sustained in the 2022 accident were similar and that he was unable to return to work since 2019. Dr. Lee testified that the applicant was unable to provide examples of his stated memory and concentration issues. The applicant also reported to Dr. Lee that he relied on his family and was not independent before the 2022 accident, and there had been no changes to his social or leisure activities before or after the 2022 accident. Dr. Lee testified that his assessment revealed validity concerns with the psychometric testing and testified that he believed the applicant was overreporting his symptoms. Dr. Lee opined the applicant did not suffer a complete inability to carry on a normal life as a result of and within 104 weeks after the 2022 accident.

33We find the applicant’s evidence is highly inconsistent. Either the applicant had recovered after the first accident and was able to work; or the applicant had not recovered from the first accident and his level of activities had not changed from before the 2022 accident to after the accident. Either way, we find, by his own testimony, he is not entitled to a non-earner benefit pursuant to section 3(7) of the Schedule.

34We find the testimony of Dr. Manias to be consistent with his records, which are corroborated by the report of Dr. Kwok, and we give this evidence significant weight.

35We also find the evidence of the assessors, and the applicant’s treating chiropractor, to be consistent and persuasive that the applicant did not suffer a complete inability to carry on a normal life.

36Finally, we note that the applicant has not led evidence as to the nature and extent of his activities, before or after the accident, that would allow us to make a meaningful comparison in accordance with Heath.

37Based on the preponderance of evidence, we find on a balance of probabilities that the applicant did not suffer a complete inability to carry on normal life as a result of the August 2022 accident.

Is the applicant entitled to the treatment plans in the amount of $1,779.20 and $1,328.00 for physiotherapy services?

38We find the physiotherapy treatment plans are not reasonable and necessary.

39To receive treatment for an OCF-18 under sections 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 the treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

40We have reviewed the treatment plans dated May 2, 2023, in the amount of $1,779.20, and July 7, 2023, in the amount of $1,328.00, proposed by Dr. Manias.

41The May 2, 2023 plan identifies treatment goals of pain reduction, increased range of motion, increased strength, return to activities of normal living, return to modified work activities, and return to pre-accident overall health. As barriers to recovery, Dr. Manias identifies the applicant’s 2019 accident and aggravated post-concussion symptoms that were present before the 2022 accident. Dr. Manias proposes 14 sessions with the chiropractor at a rate of $112.80, plus $200 for completion of the OCF-18, for a total cost of $1,779.20.

42The July 7, 2023, plan is consistent with treatment goals of the previous plan and proposes ten sessions with the chiropractor at a rate of $112.80, plus $200 for completion of the OCF-18, for a total cost of $1,328.00.

43The applicant relies on OCF-18s dated May 2, 2023, and July 7, 2023, as well as the clinical notes and record from Dr. Manias dated February 2, 2022, and September 11, 2025.

44The respondent submits that the applicant has not met his onus to demonstrate the treatment plans are reasonable and necessary.

45The applicant gave testimony that he had difficulty after the second accident, experienced pain in his back, pain in his head, was not sleeping well, has stress all the time, could not sit long and could not do long distance walks. Further, the applicant stated he could not do housekeeping, and he gets help from family. Dr. Manias testified the treatment he offered was spine manipulation, shoulder care, traction and acupuncture in the back.

46We find the applicant has not directed us to contemporaneous medical evidence or an independent recommendation in support of the treatment plan for his accident-related injuries, beyond that of the treating provider. We find that the treatment plan by itself, is not persuasive that the plan is reasonable or necessary.

47We find on a balance of probabilities the applicant has not established entitlement to the physiotherapy treatment plans.

Interest

48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing the applicant is not entitled to interest.

Costs

49For the following reasons, we do not order the applicant to pay costs to the respondent.

50Rule 19.1 permits a party to request an order for costs where the requesting party believes that the other party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.

51Rule 19.5 of the rules outlines the relevant factors which should be considered by the Tribunal when determining whether to order costs and the amount of costs to be awarded, which include the seriousness of the misconduct, whether the conduct was in breach of a direction or order issued by the tribunal, whether or not a party’s behavior interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, prejudice to other parties, and the potential impact on order for costs would have on individuals assessing the Tribunal system. Rule 19.6 allows the maximum of $1,000.00 for each full day of attendance at a motion, case conference or hearing.

52The respondent seeks costs due to the late service of the witness statement and expert witness credentials.

53The applicant submits that the late service was an administrative error.

54We find that, while the witness statement was not served in accordance with the Rules, this oversight does not rise to a level of being intentionally unreasonable, frivolous, vexatious, or in bad faith.

55For these reasons, we find on a balance of probabilities that the respondent is not entitled to costs.

ORDER

56We find that:

i. The applicant is not entitled to a non-earner benefit.

ii. The applicant is not entitled to the treatment plans.

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

iv. No costs are owed to the respondent.