Neutral Citation: 1997 ONICDRG 42
OIC A96-000988
ONTARIO INSURANCE COMMISSION
BETWEEN:
HEAN KHENG H'NG AND TAN AI KENG
Applicants
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
DECISION ON A PRELIMINARY ISSUE
Issues:
The Applicants, Hean Kheng H'ng and Tan Ai Kheng, are the parents of Mr. Gaik Khian H'ng who was fatally injured in a motor vehicle accident on January 22, 1994. The Applicants claimed death benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.1 The Insurer took the position that the claim for death benefits was incomplete and submitted late. The parties were unable to resolve their disputes through mediation and the Applicants applied for arbitration under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
The issue in this hearing is:
- Are the Applicants disentitled to death benefits because they did not "submit an application for the benefits to the insurer" pursuant to the requirements of subsection 59(3) of the Schedule?
The Applicants also claim their expenses incurred in the hearing.
Result:
- The Applicants did not submit an application for death benefits pursuant to the requirements of subsection 59(3) of the Schedule.
Hearing:
The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on January 27, 1997, before me, John Friendly, Arbitrator.
Present at the Hearing:
Applicant:
Amy H'ng (authorized agent for Mr. H’ng and Mrs. Keng)
The Applicants' Representative:
Bill Wong Barrister and Solicitor
Allstate's Representative:
Ian Kirby Barrister and Solicitor
Allstate's Officer:
Douglas Gillis
Witness:
Margaret Pistillo, Claims Manager
Exhibits:
Exhibit 1
Insurer's Document Brief
Exhibit 2
Applicants' Document Brief
Evidence and Findings:
On January 22, 1994, Gaik Khian H'ng died in a motor vehicle accident while a passenger in an automobile insured by Allstate. The accident occurred in Ontario where the deceased had lived for about five years. His family, except for two cousins in Canada, lives in Malaysia.
The Insurer attempted to locate Mr. H'ng's family without success. Eventually, in a letter dated June 21, 1994, Allstate was contacted by Charles Fair, barrister and solicitor, who had been retained by the Applicants, the deceased's parents.
The relevant portion of his letter reads:
In the meantime, please forward to my attention the forms necessary for my client [sic] to apply for any death benefits they are entitled to and for reimbursement of the expenses incurred for Mr. H'ng's funeral.
Also, please advise whether optional death benefits will be provided under the insured [sic] policy insurance.
In her July 8, 1994 response, Margaret Pistillo enclosed "the accident benefit forms that should be completed." She asked for the funeral bill and death certificate and sought "the F.L.A. particulars and their causal relationships [sic] to the deceased." At that time Ms. Pistillo was the Senior Staff Claim Representative for Allstate dealing with both the accident benefit and tort side of the claim.
In her testimony, Ms. Pistillo stated she sent the "package" to Mr. Fair. The package, known as the Accident Benefits Application Package, is an approved collection of Ontario Commission Forms (OCF1, 2, and 3). OCF1 is the Application for Accident Benefits, OCF2 is the Employer's Confirmation of Income, and OCF3 is the Health Practitioner's Certificate.
Charles Fair responded by letter dated July 5, 1994 (the "covering letter.") The parties agree this date is in error. While the actual date cannot be determined, the Insurer's file indicates this letter was received on August 5, 1994.
One of the enclosures submitted to Allstate with this letter was the Application for Death or Funeral Benefit. This is a form approved by the Commission for the purpose and is also referred to as the OCF4. The Application for Death or Funeral Benefit form is not part of the Accident Benefits Application Package.
The OCF4 is a two-page application form consisting of four parts. Part 1 identifies the deceased, Part 2 identifies the Applicants, Part 3 identifies the funeral expenses claimed, and Part 4 is the signature section.
The form begins with this statement:
This form must be completed by or on behalf of the deceased's spouse or dependants. If more than one person is applying for benefits, they can apply together or apply separately. If you have not done so, please complete the Application for Accident Benefits form. Attach death certificate. (Emphasis in the original)
In the OCF4 submitted by Charles Fair, the deceased's marital status is shown as "single" and the number of dependants at time of death: "0" (zero). The death certificate was attached. In Part 2, both Applicants, Mr. H'ng and Mrs. Keng are identified. In this part the Applicants are directed to signify their relationship to the deceased and attach a copy of the birth certificate or proof of dependency. Each Applicant was identified as "parent." Other choices allowed on the form are spouse, guardian, dependant, and a former spouse entitled to support.
Ms. Pistillo testified that she processed the completed application and paid the expenses claimed. The Explanation of Assessment by Insurance Company (OCF9) dated August 10, 1994, shows a payment of $3,258.01 for funeral expenses and under "other expenses" the amount of $5,800.87 for travel. The amount paid apparently represents air travel from and return to Penang, Malaysia for the deceased's mother, brother and sister. There was no indication that a death benefit claim had been accepted.
It was clear from her evidence that Ms. Pistillo did not believe she had been presented with a claim for death benefits. She felt the application addressed only funeral and travel expenses. She pointed out that the application indicated 0 (zero) dependants. In her view, that fact indicated no death benefit was claimed. When asked whether she had taken into account the contents of the covering letter, she said she made her determination on the basis of the application form alone.
Ms. Pistillo was asked to comment on specific items contained in that letter. She said the covering letter confirmed her view there were no dependants. The example she used was