Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal Automobile Accident Benefits Service Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3 In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260 1-800-255-2214 TTY: 416-916-0548 1-844-403-5906 Fax: 416-325-1060 1-844-618-2566 Website: www.slasto.gov.on.ca/en/AABS
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis Service d'aide relative aux indemnités d'accident automobile Adresse postale : 77, rue Wellesley Ouest, Boîte no 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2 Tél. : 416 314-4260 1 800 255-2214 ATS : 416 916-0548 1 844 403-5906 Téléc. : 416 325-1060 1 844 618-2566 Site Web : www.slasto.gov.on.ca/fr/AABS
RECONSIDERATION DECISION
Before: Linda P. Lamoureux, Executive Chair
File: 17-000456/AABS
Case Name: N.F. v. Aviva Insurance Canada
Written Submissions By:
For the Applicant: Mariya Verkhovets
For the Respondent: Amit Kwatra
Overview
- This request for reconsideration concerns the information that must be included in an application for accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 to the Motor Vehicle Accident Claims Fund (“the Fund”). More specifically, it deals with the application form’s stated requirement that any application to the Fund must include a police report. In this case, N.F.’s application to the Fund failed to include one. Aviva Insurance Canada (“Aviva”), which assumed priority over N.F.’s application, argues that this failure is determinative. The Licence Appeal Tribunal (“the Tribunal”) disagreed. For the reasons explained below, I vary the Tribunal’s order to make clear that N.F.’s claim for an NEB is dismissed and I dismiss the remainder of the request for reconsideration.
Facts
On January 2, 2015, N.F. was a passenger in a car driven by his girlfriend, K.J. A third individual sat in the back. The three got into an accident, following which police, paramedics, and firefighters attended the scene. Both vehicles involved in the accident were eventually towed away. N.F., who did not have insurance, failed to obtain any contact information from the attending officer. He also failed to obtain any information concerning the other vehicle or its driver.
After the accident, N.F. sought medical attention for certain accident-related injuries. He also asked K.J. for the details of her insurance, which K.J. refused to provide. N.F. and K.J. eventually broke up.
On March 30, 2015, N.F. submitted an application for accident benefits to the Fund. Shortly after, the Fund acknowledged the application, and asked N.F. for a number of outstanding forms, including the Motor Vehicle Accident (Police) Report (“Police Report”) relating to the accident.
By letter dated June 2, 2015, N.F. provided the Fund with most of the requested documentation. This included a completed Motor Vehicle Accident Claims Fund Application for Statutory Accident Benefits (Form 3) that provided the license plate number of the car that K.J. was driving at the time of the accident. However, N.F. explained that he did not have access to the relevant Police Report.
N.F. then heard from ClaimsPro Canada (“ClaimsPro”). By letter dated June 18, 2015, ClaimsPro informed N.F. that it was adjusting his file on the Fund’s behalf. More importantly, it explained to N.F. that it would not consider his application for accident benefits complete until he explained why he filed his application months after the accident.
N.F. provided this explanation during an examination under oath on June 30, 2015. Among other things, he outlined the nature of the accident, K.J.’s name, and certain information about the car that K.J. was driving at the time of the accident, including its license plate number. He also explained that K.J. did not want to give him any information about the car she was driving or her insurance, resulting in him having to search for and locate the car in order to obtain its license plate number.
Following the examination, the Fund received a number of treatment plans in which N.F. requested various benefits. These included the following:
a Treatment Confirmation Form (OCF-23) dated March 18, 2015 recommending chiropractic treatment totaling $2,200.00;
a Treatment and Assessment Plan (OCF-18) dated July 30, 2015 recommending an in-home attendant care assessment at a cost of $2,486.00;
a Treatment and Assessment Plan (OCF-18) dated August 11, 2015 recommending a chronic pain assessment at a cost of $2,599.00;
a Treatment and Assessment Plan (OCF-18) dated August 11, 2015 recommending a psychological assessment at a cost of $2,644.20; and
a Treatment and Assessment Plan (OCF-18) dated March 30, 2016 for physiotherapy services a cost of $2,659.01.
The Fund denied the first four of these plans for the same reason. As it explained in an Explanation of Benefits, the Fund took the position that the application was incomplete since it did not include a Police Report confirming N.F.’s involvement in the accident. For that reason, the Fund explained that it would not assess any claim that N.F. submitted until his application was complete. Similarly, the Fund denied the last plan mentioned above on the basis that it was “lacking evidence” confirming N.F.’s involvement in the accident.
N.F. eventually applied to the Tribunal to dispute his entitlement to the above benefits. Aviva then accepted priority over N.F.’s application.
The Tribunal’s decision
Before the Tribunal, Aviva argued, among other things, that N.F.’s application was barred under s. 55(1)1 of the Schedule for being both untimely and incomplete. In its view, N.F. did not submit an application within the time prescribed under the Schedule and all of the disputed treatment plans were submitted before N.F. filed a complete application, meaning the application should be barred. Furthermore, Aviva argued that N.F. should be treated within the Minor Injury Guideline (“MIG”), something that N.F. failed to disprove.
The Tribunal disagreed. Its key findings can be summarized as follows:
s. 32(1) of the Schedule requires a person who intends to apply for benefits to notify his insurer of his intention to apply for benefits “no later than the seventh day after the circumstances arose that give rise to the entitlement for the benefit or as soon as practicable after that” [emphasis added]. N.F. notified the Fund “as soon as practicable” by filing his application, albeit incomplete, on March 30, 2015: see paras. 19, 22-23. In the circumstances, three months was not an “unreasonable amount of time” for N.F. to have notified the Fund of his intention to apply for benefits: see para. 24;
the Schedule distinguishes between late and incomplete applications. While late applications may be barred under s. 55, incomplete ones are addressed under s. 32(6): see para. 30. In this case, s. 32(7) is “the key to determining what information is mandatory for an application to be complete:” see para. 42. In essence, that section provides that an insurer may only rely on an application’s incompleteness where “the insurer, after a reasonable review of the incomplete application, is unable to determine, without the missing information, whether a benefit payable.” In this case, the Fund had all the information it needed by June 30, 2015, when it examined N.F. Thus, the application was complete by that date; and
none of the Fund’s denials complied with s. 38(8) of Schedule, which requires an insurer to give notice outlining the medical and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary. The Fund’s denials all relied on N.F.’s failure to provide the Police Report as the basis for refusing to assess whether the claimed benefits were payable. Therefore, the Fund’s improper denials triggered the mandatory consequences in s. 38(11): Aviva is precluded from taking the position that the MIG applies, and the plans at issue are deemed payable.
Discussion and Reasons
- Aviva now requests that I reconsider the Tribunal’s decision.
Aviva’s argument concerning the completeness of N.F.’s application
Aviva’s principle argument underscores the fact that N.F.’s application to the Fund was incomplete, specifically that it failed to include a Police Report, which, despite Aviva’s requests, N.F. failed to provide. Thus, Aviva argues, the Tribunal erred by misunderstanding the “requirements of s. 32 and s. 55 of the [Schedule] in the sense that no benefits are payable and no application may be made to the [Tribunal] until the Claimant complies with all reasonable requests to provide information and provide a complete application.” To this Aviva adds that there are “compelling public policy objectives” for ensuring that all applicants to the Fund include a Police Report in their applications.
The fundamental flaw in Aviva’s argument is that it attaches undue significance to the concept of a complete application. Aviva suggests that “[u]ntil a complete application is submitted and all related [requests for information] are satisfied, no benefit is payable.” However, that is not what the Insurance Act, R.S.O. c. I.8 and Schedule envision.
Under the Insurance Act, the Superintendent of Financial Services may “approve forms for any purpose of this Act and the forms may provide for such information to be furnished as the Superintendent may require:” see s. 121.2(1). One of the forms that the Superintendent has approved, pursuant to s. 66 of the Schedule, is the current application for accident benefits form (OCF-1). Further, and as Aviva is quick to point out, Part 10 of the Superintendent-approved OCF-1 provides that an application for accident benefits to the Fund is not complete unless it includes, among other things, a Police Report. In Aviva’s view, that requirement is a full and justified explanation for the Fund’s refusal to address the merits of N.F.’s application.
However, that view is misguided. While the Insurance Act may empower the Superintendent to approve forms and thereby require an applicant to furnish certain information as part of an application, that power does not confer authority on the Superintendent to effectively amend the Schedule through the forms approval process.1 To the contrary, any discretion that the Superintendent enjoys must be exercised in a manner consistent with the Insurance Act and the regulations thereunder, including the Schedule, which was enacted by a much higher authority, namely the Lieutenant Governor in Council: see s. 121(1)9-10 and s. 224.
Accordingly, s. 32(7) of the Schedule is, as the Tribunal noted, “the key to determining what information is mandatory for an application to be complete:” see para. 42. Read in context, that section provides as follows:
Notice to insurer and application for benefits
- (1) A person who intends to apply for one or more benefits described in this Regulation shall notify the insurer of his or her intention no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day.
(5) The applicant shall submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms.
(6) If an insurer receives an incomplete or unsigned application, the insurer shall notify the applicant within 10 business days after receiving the application and shall advise the applicant of the missing information that is required or that the applicant’s signature is missing, as appropriate.
(7) The insurer shall not give a notice under subsection (6) unless,
(a) the insurer, after a reasonable review of the incomplete application, is unable to determine, without the missing information, whether a benefit is payable; or
(b) the application has not been signed by the applicant.
(8) If subsection (6) applies in respect of an incomplete application, no benefit is payable before the applicant provides the missing information or signs the application, as the case may be.
The above makes clear that, contrary to Aviva’s suggestion, an application does not necessarily have to be complete in order to trigger an insurer’s obligation to respond. In the absence of either of the limited circumstances described in s. 32(7)(a) or (b), an insurer that receives an incomplete application must still determine whether a benefit is payable. This makes sense given the Schedule’s attempt to ensure the prompt determination of entitlement to accident benefits.
This also makes sense for another reason: the role that s. 2 of O. Reg. 283/95 (“Disputes Between Insurers Regulation”) played in this case, along with the Court of Appeal for Ontario’s interpretation of that section. Section 2 of the Disputes Between Insurers Regulation provides that the “first insurer that receives a completed application for benefits is responsible for paying benefits to an insured person pending the resolution of any dispute as to which insurer is required to pay benefits.” As the Court of Appeal explained in Kingsway General Insurance Co. v. Ontario (Minister of Finance), 2007 ONCA 62 at para. 19:
Section 2 of Regulation 283 is critically important in the timely delivery of benefits to victims of car accidents. The principle that underlies section 2 is that the first insurer to receive an application for benefits must pay now and dispute later. The rationale for this principle is obvious: persons injured in car accidents should receive statutorily mandated benefits promptly; they should not be prejudiced by being caught in the middle of a dispute between insurers over who should pay…
- In this case, the Fund was the first insurer to receive N.F.’s application. (Although Aviva argues that the Fund is technically not an “insurer,” it is well-settled that the Fund is in fact an “insurer” for the purposes of the Disputes Between Insurers Regulation.2) The Fund deemed the application incomplete pending its receipt of a Police Report. Was it entitled to take that position? The Court of Appeal’s decision in ING Insurance Company of Canada v. TD Insurance Meloche Monnex, 2010 ONCA 559 makes clear that the answer is no. In interpreting the definition of “complete application” for the purposes of s. 2 of the Disputes Between Insurers Regulation, the Court held, at para. 51, as follows:
an application for accident benefits need not be on a certain form to be valid – it need only provide sufficient particulars to reasonably assist the insurer with processing the application, identifying the benefits to which the applicant may be entitled, and assessing the claim.
The Court echoed this sentiment in Ontario (Minister of Finance) v. Pilot, 2012 ONCA 33. In that case, it held that an application for benefits that is not genuinely complete (i.e., one based on a completed Superintendent-approved form and including all required attachments) can nevertheless constitute a “completed application” for the purposes of both s. 2 and s. 3 of the Disputes Between Insurers Regulation if it is “functionally adequate for its legislated purpose:” see para. 46. As the Court noted, this flexible approach, rather than a formalistic one, “encourages the prompt payment of benefits to injured applicants” and thereby furthers the legislative goal under the Regulation of “pay now, dispute later.”
This is in large part the same policy embodied even more explicitly in s. 32(7) of the current Schedule. That section also clearly envisions the possibility of an application being “functionally adequate for its legislated purpose” notwithstanding that it may be missing certain information. Such an approach is consistent with the Schedule’s ultimate aim of ensuring that injured applicants receive the benefits to which they are entitled as soon as possible.
For these reasons, I would dismiss Aviva’s arguments concerning the completeness of N.F.’s application or, rather, lack thereof based on the missing Police Report. Before moving on, however, I would add the following.
Aviva pointed out that courts and arbitrators have developed a “nexus test” for triggering an insurer’s obligation under s. 2 of the Disputes Between Insurers Regulation. In this respect, it references the Divisional Court’s decision in Wawanesa Mutual Insurance v. Motor Vehicle Accident Claims, 2010 ONSC 1949. Although not entirely clear, Aviva appears to rely on this reference for two propositions, both of which I reject.
First, Aviva appears to suggest that there was no nexus between N.F. and the Fund that triggered the latter’s obligation under the Disputes Between Insurers Regulation. I disagree. The threshold for establishing the required nexus is not high.3 More importantly, the Tribunal’s factual findings at paras. 23-24, which Aviva does not challenge in any meaningful way, make plain that, following the accident, N.F. had nowhere to turn but to the Fund.
Second, Aviva more likely relies on the Divisional Court’s decision for its comments in obiter at para. 8, which appear to suggest that the applicant in that case was required to submit a Police Report as part of her application. I do not read the Court’s comments as laying down any such rule. Indeed, any such decision would be contrary to the repeated Court of Appeal authority, discussed above, suggesting the opposite. Thus, I find the case unhelpful.
Aviva’s argument concerning s. 38(11)
The next part of Aviva’s submissions takes aim at the Tribunal’s finding that, given the Fund’s failure to respond to N.F.’s application appropriately, the mandatory consequences outlined in s. 38(11) apply: specifically, Aviva is prevented from taking the position that the MIG applies, and the disputed plans are automatically payable. In response, Aviva argues that the Tribunal erred in not applying the Court of Appeal’s decision in Stranges v. Allstate Insurance Company of Canada, 2010 ONCA 457, which appears to suggests that an applicant is always required to prove entitlement to a specified benefit even after receiving an insurer’s deficient notice.
I dismissed the same argument in M.F.Z. v Aviva Insurance Canada, 2017 CanLII 63632. For the reasons I explained in that decision at paras. 58-60, Stranges is distinguishable and has no application in these circumstances.
N.F.’s claim for NEBs
- Lastly, Aviva argues that the Tribunal improperly refused to address N.F.’s claim for a non-earner benefit (“NEB”), which was included in his application but not argued on the merits. I agree. N.F. submitted no evidence to establish his entitlement to an NEB and, as a result, the claim should have been dismissed.
Conclusion
- I vary the Tribunal’s order to make clear that N.F.’s claim for an NEB is dismissed. The remainder of the request for reconsideration is dismissed.
Linda P. Lamoureux
Executive Chair
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: May 25, 2018
Footnotes
- RBC General Insurance Company v. Antony, Appeal Order P03-00023 at 9-10.
- Kingsway General Insurance Company v. Ontario, 2007 ONCA 62 at para. 12. See also Allstate Insurance Company of Canada v. Motor Vehicle Accident Claims Fund, 2009 ONCA 409 at para. 7.
- Wawanesa Mutual Insurance v. Motor Vehicle Accident Claims, 2010 ONSC 1949 at para. 5.