The Effectiveness of Nonproduction Arguments and the Persuasiveness of Uncontradicted Objective Medical Evidence

Case Study of Liu v. Certas Direct Insurance Company, 2023 CanLII 1452 (ON LAT)

Liu v. Certas Direct Insurance Company is a recently published case that both indicates that an insurance company’s argument of nonproduction is ineffective if they failed to make a thorough investigation and also explores treatment of an accident benefits applicant’s medical evidence where uncontradicted by opposing evidence.

In this case, the applicant was injured in a MVA that happened on June 23, 2019. She applied for accident benefits and, after the respondent insurer denied certain of these benefits, applied to the License Appeal Tribunal for dispute resolution.

The main issues included whether the applicant’s injuries caused by the accident were predominantly minor in nature, and therefore whether her benefits coverage was restricted by the minor injury guideline, and whether the applicant was entitled to a nonearner benefit, rehabilitation benefit and the cost of a psychological assessment.

1- The Insurer’s Argument of Failure to Comply With Production Obligations was Invalid Because it Failed to Thoroughly Investigate

The respondent brought forward an argument that it had made repeated requests to the applicant’s physician for her clinical notes and records ever since the date of the accident to the present;[1] and that it should not have to pay for any benefit in respect of any period in which the insured person fails to comply with a request for the production of documents.[2]

The Tribunal Member noted that the applicant was a Chinese national in Canada on a super visa, visiting her family, and unable to return home due to the Covid-19 pandemic. She did request all of her medical records from her physician and filed them. There was no evidence there were more records. The insurer did not conduct an Examination Under Oath[3] or Insurer Examination.[4] Therefore, the Member was not persuaded that the applicant’s benefits should be suspended for a failure to comply pursuant to s. 33(6).

2- The Applicant’s uncontradicted medical evidence was sufficient to prove that she had sustained a psychological impairment, a nonminor injury

The Tribunal Member noted the definition of minor injury and that a psychological impairment, by not being included in the definition, therefore takes the applicant outside the MIG.

Although the Member placed less weight on the applicant’s OCF-18 Form, which was not based on any clinical records or psychometric tests, the Member did place weight on the applicant’s filed psychological assessment prepared by a psychologist, based on an interview and psychometric tests and recommending 14 sessions of cognitive behavioral therapy. Although the respondent was correct to note that some of the assessment was based on self-reporting, the Member noted that there was no reason to discount the results of the objective psychometric tests.

The Member was satisfied that the applicant had a psychological impairment; therefore, the applicant was not bound by the MIG.

3- Disposition on benefit claims

In the final result, the applicant was held to be not entitled to the nonearner benefit because she provided insufficient evidence of pre- and post-accident activities; not entitled to the rehabilitation benefit for chiropractic treatment because she did not provide enough supporting medical evidence for that item; but entitled to the cost of the psychological assessment due to the weight the Member assigned to it as discussed above.

Our take on this case is that it exemplifies two things: first, that an insurer’s argument that the applicant failed to comply with a disclosure request can be challenged on the basis of the steps the insurer had available to it but failed to take; and second, the potential persuasiveness of medical evidence, based at least partly on objective tests, where the opposing side has not filed evidence that contradicts it.

[1] Statutory Accident Benefits Schedule, O. Reg. 34/10 (SABS), s. 33. (

[2] SABS, s. 33(6). (

[3] SABS, s. 33(2). (

[4] SABS, s. 44. (

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