LICENCE APPEAL TRIBUNAL
Safety, Licensing Appeals and Standards Tribunals Ontario
Date: October 20, 2016
Tribunal File Number: 16-000279/AABS
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits
Between:
D. S.
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
Adjudicator: Cynthia Pay
Representatives:
For the Applicant: Anthea Chan, counsel
For the Respondent: Kathleen Mertes, counsel
Held in writing: August 12, 2016
Overview:
The Applicant, D. S., was involved in an automobile accident on April 16, 2014. She submitted an Application for Accident Benefits as well as a Disability Certificate to the Respondent, Certas Home and Auto Insurance Company, on May 9, 2014. The doctor who completed the Disability Certificate indicated on the form that the Applicant did not meet the test for non-earner benefits. The Applicant asserts that the Application and Disability Certificate comprise an application for non-earner benefits.
In the Respondent’s view, the Applicant did not submit an application for non- earner benefits. They submit that the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”) requires that an insured person submit a completed Disability Certificate, confirming that the insured person meets the eligibility test for non-earner benefits, in order to be entitled to the benefit. The Respondent submits that the Applicant did not fulfil this requirement. The Respondent requests that the Tribunal dismiss this issue without a hearing pursuant to Rules 3.4 (b) or 3.4 (c) of the Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”).
Result:
- For the reasons that follow, I find that the Applicant submitted an application for non-earner benefits and this issue can proceed to a hearing.
Forms submitted to the Respondent:
Based on the documentary evidence before the Tribunal, I make the following findings of fact. The Applicant submitted an Application for Accident Benefits form (OCF-1) and Disability Certificate (OCF-3) to the Respondent on May 9, 2014. Dr. L. completed the Disability Certificate. The box regarding the question of whether the Applicant met the test for non-earner benefits was checked off by Dr. L. as “no”.
The Respondent denied the Applicant’s request for non-earner benefits by way of an Explanation of Benefits form (OCF-9) dated May 21, 2014.
The Applicant then submitted an Election of Benefits form (OCF-10) on July 17, 2014 confirming her election of non-earner benefits. The Respondent further denied the Applicant’s entitlement to non-earner benefits on July 30, 2014 by another Explanation of Benefits form.
According to the submissions of the parties, the Applicant has not provided any further Disability Certificate forms supporting her entitlement to non-earner benefits, but has provided ongoing disclosure of medical evidence to the Respondent in lieu of an updated Disability Certificate.
Law and Analysis:
The test for non-earner benefits is set out in s.12 of the Schedule and requires that the claimant suffer “a complete inability to carry on a normal life” within 104 weeks of the subject accident. Dr. L. checked “no” on the section relating to the non-earner benefit test on the Disability Certificate submitted by the Applicant, indicating that she did not meet the test for this benefit.
The Respondent submits that the Applicant did not meet the requirements for an application for non-earner benefits because she did not provide a Disability Certificate confirming that she met the test for the benefit.
In support of its position, the Respondent cites s.36 (2) and (3) of the Schedule. Section 36 (2) states, “an applicant for a specified benefit shall submit a completed disability certificate with her application.” Section 36 (3) states, “an applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted”.
The Respondent submits that because the form was not supportive of the Applicant’s eligibility for non-earner benefits, it was not a completed Disability Certificate, and therefore did not meet the requirements of s.36 of the Schedule. As a result, the Respondent submits that this issue is outside of the Tribunal’s jurisdiction, that the statutory requirements for bringing an appeal have not been met, and asks that the Tribunal dismiss the Application with respect to non- earner benefits under Rules 3.4 (b) and (c) of the Tribunal’s Rules.
The Respondent cites three cases in support of its position that without a complete Disability Certificate, the Applicant should be precluded from applying to the Tribunal for dispute resolution: Sagan v Dominion of Canada General Insurance Co.1 (“Sagan”), Steele v Intact Insurance Co.2 (“Steele”), and Strauss et al v Aviva3 (“Strauss”).
I find that these cases are distinguishable from the current Application. All of them dealt with situations where claimants attempted to pursue dispute resolution long after the two-year limitation period had ended. The limitation period was also the focus of the decisions. In addition, for the most part, the claimants in these cases did not apply for non-earner benefits at all. In the current case, the Applicant submitted a Disability Certificate and Election of Benefits form requesting non-earner benefits, and initiated her Application to the Tribunal well within the two-year limitation period.
I agree with the Applicant and find that she should not be precluded from proceeding to a hearing on this issue of her eligibility for non-earner benefits.
I find that the Applicant sent the Respondent a completed Disability Certificate that indicated she was applying for non-earner benefits. The fact that her doctor noted that she did not meet the applicable test did not render her Disability Certificate incomplete.
The Applicant followed up with an Election of Benefits form also specifying that she was electing to apply for non-earner benefits. Even though the Disability Certificate indicated that the Applicant did not meet the test for non-earner benefits, I find that it was clear to the Respondent that she was applying for the benefit.
The Respondent denied her application for non-earner benefits on the basis that she did not meet the applicable test. In their first Explanation of Benefits form dated May 21, 2014, the Respondent stated
Non Earner Benefit: Based on the Disability Certificate (OCF-3) signed by Dr. [L.] on May 6, 2014, you do not qualify for a non-earner benefit under Section 12.
- In their second Explanation of Benefits form dated July 30, 2014, the Respondent acknowledged the Applicant’s election to apply for non-earner benefits, stating “you have elected to receive a non-earner benefit”. It denied her application for a second time, stating
Non Earner Benefit: Based on Disability Certificate (OCF-3) signed by Dr. [L.] on May 6, 2014, you do not qualify for a non-earner benefit under Section 12.
Despite Dr. L.’s statement that the Applicant did not qualify for a non-earner benefit, I find that the overall interaction between the Applicant and Respondent demonstrates that the Applicant made a complete application for the benefit, which the Respondent acknowledged.
Further, I find that the consumer protection purpose of the legislation requires an examination of the substance of the Applicant’s application for benefits. The Applicant submitted a Disability Certificate as well as an Election of Benefits form that clearly demonstrated that she wished to receive non-earner benefits. To find that she had not applied for non-earner benefits based on the box checked off by the doctor would be to prioritize form over substance, and violate the spirit of the legislation.
I find that the Applicant has clearly made an application for non-earner benefits. The Respondent did not deny the application for non-earner benefits on the basis that it was incomplete. The Respondent denied the application because it had decided the Applicant did not meet the test for the benefit. As a result, the statutory requirements for bringing an appeal have been met and this issue is within the Tribunal’s jurisdiction.
I find that the Applicant has met the requirements for an application for non- earner benefits, and that her Application to the Tribunal can proceed to a hearing.
Request for Costs by Respondent:
The Respondent has requested an Order for its costs of the preliminary issue hearing.
This Tribunal orders costs where a party has established that another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.
I have determined that this Application can proceed to a hearing. If the Respondent wishes to proceed with its request for costs, it may raise the issue before the hearing adjudicator.
Conclusion:
- The Applicant has met the requirements for an application for non-earner benefits, and her Application to the Tribunal can proceed to a hearing.
Released: October 20, 2016
Cynthia Pay
Adjudicator