Licence Appeal Tribunal File Number: 20-005698/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:
Georgina Windsor
Applicant
and
Aviva Insurance Company
Respondent
AMENDED DECISION AND ORDER
ADJUDICATOR:
Daniela Corapi
APPEARANCES:
For the Applicant:
Georgina Windsor, Applicant
Shannon Kelly/Gus Triantafillopoulos, Counsel
For the Respondent:
Andrea Bandow/Robert Rogers, Counsel
Heard by Videoconference:
January 22 and March 26, 2021
REASONS FOR DECISION
OVERVIEW
1The applicant [G.W.] (“applicant”) is the mother of [R.W.] who was involved in a fatal motor vehicle accident on September 27, 2019 (“accident”). The applicant sought death and funeral benefits (“benefits”) pursuant to the Statutory Accident Benefits Schedule1 - Effective September 1, 2010 (the ''Schedule'').
2The applicant submitted a Death and Funeral Benefits Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for dispute resolution dated May 8, 2020.
3The applicant states that more than two months elapsed before the respondent provided the applicant with any response to the Death and Funeral Benefits Application (OCF-4). The applicant further states that she waited nearly six months to receive payment of the funeral benefit, which she submits was unreasonably withheld by the respondent.
4The respondent states that it did not unreasonably withhold or delay payment of the funeral benefit, and that no interest is payable because no payments of benefits were overdue. The respondent submits that the funeral benefits were paid in accordance with the Schedule and that prior to approving the funeral benefit, it required a completed OCF-1 and confirmation of status from WSIB from the applicant.
ISSUES
5The issues to be decided are:
i. Is the applicant entitled to interest on any overdue payment of benefits?
ii. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
6The applicant has not met their onus to establish that the payment for benefits was overdue. Accordingly, the applicant is not entitled to interest.
7The applicant is not entitled to interest. The respondent did not unreasonably withhold or delay payments. There is no special award.
LAW
8Section 26(1) of the Schedule provides that an insurer shall pay a death benefit and s. 27(1) of the Schedule provides that an insurer shall pay a funeral benefit for an insured person who dies as a result of the accident, subject to time and monetary restrictions which are not relevant here.
9Section 43(1) of the Schedule provides that if a person is entitled to a death benefit and a funeral benefit, the insurer shall pay the benefit within 30 days after the insurer receives an application for the benefit. Under s. 43(2), if the insurer refuses to pay these benefits, the insurer shall give the person a notice of the refusal and the medical and any other reasons for the refusal within 30 days after the insurer receives the application for the benefit.
10Section 51(1) of the Schedule provides that payment of a benefit is overdue if the insurer fails to pay within the time required by the Schedule. Under s. 51(2), if payment is overdue, the insurer shall pay interest on the overdue amount in accordance with this section for each day the amount is overdue. Under s. 51(3) provides that interest is payable at the rate of 1 per cent per month, compounded monthly, from the date on which the amount becomes overdue until the earlier of the following dates:
The date on which the overdue amount is paid.
The date, if any, on which interest becomes payable in accordance with subsection (4).
11Section 51(4) provides that in the case of a dispute in respect of an insured person’s entitlement to statutory accident benefits or the amount of the benefits to which an insured person is entitled, interest on the benefits in dispute is calculated at the prejudgment interest rate in s. 128(3) of the Courts of Justice Act used for past pecuniary loss and is payable for the period that begins on the date on which an application to the Licence Appeal Tribunal is brought under s. 280(2) of the Act and ends on a date a settlement is reached or decision issued that finally disposes of the dispute.
12The onus is on the applicant to establish entitlement to interest.
ANALYSIS
13The applicant submits that the respondent did not send a notice of refusal and reason(s) for refusal to the applicant within 30 days after receiving the OCF-4. As such, the applicant states that the respondent was obligated to pay the funeral benefit as of 30 days from November 30, 2019 - the date of the application for the funeral benefit, in accordance with section 43(1) of the SABS.
14The respondent submits that pursuant to the Schedule, an OCF-1 is required for an application for funeral benefits, and as such, the 30-day timeline for payment of funeral benefits did not commence until the applicant submitted her OCF-1 on April 17, 2020.
Processing of Application
15The applicant states that she submitted a Death and Funeral Benefits Application (OCF-4) to the respondent on or about November 30, 2019, enclosing invoices relating to her son’s funeral expenses and a death certificate.
16The applicant states that she first heard back from the respondent with respect to the submitted OCF-4 on February 11, 2020 – nearly two months later.
17The respondent states that it received the OCF-4, invoices and death certificate on January 31, 2020. It states that although the OCF-4 is dated November 30, 2019 and applicant counsel’s cover letter was dated December 2, 2019, the OCF-4 was not received by Aviva until January 31, 2020. The respondent states that it notified applicant counsel’s office by way of letter to Lynn Toth, indicating that it received the OCF-4 on January 31, 2020 (as per time stamps).
18The respondent subsequently wrote to the applicant on February 11, 2020, advising that it received the Application and it has commenced an investigation with respect to the policy number indicated on the OCF-4. The respondent also provided an explanation of benefits advising that an OCF-1, Application for Accident Benefits, was required in addition to the OCF-4 received. On the same date, the respondent acknowledged receipt of the OCF-4 and enclosed a Notice of Dispute Between Insurers form in relation to a priority dispute.
19By way of letter dated February 12, 2020, the respondent advised the applicant that its investigation revealed that R.W. was in the course of employment when the fatal accident occurred. The respondent notified the applicant that accident benefits are not payable if the policy holder is entitled to receive and elects to receive WSIB benefits, pursuant to section 61 of the Schedule; the respondent further advised the applicant of her obligation to complete an assignment of the WSIB benefits form and enclosed a copy of same.
20On April 16, 2020, the respondent sent further correspondence to the applicant enclosing section 33 requests and advising that it had not received any of the following: 1) WSIB file in relation to the accident; 2) proof from WSIB that no WSIB claim was been filed; or 3) confirmation that no benefits are payable in relation to the accident.
21On April 30, 2020, the respondent had not yet received the applicant’s assignment form pursuant to Aviva’s section 33 request. It sent further correspondence to the applicant on this date requesting the WSIB file and enclosing another Notice of Dispute Between Insurers form.
22The respondent submits that on May 19, 2020, the applicant produced a response from the WSIB in relation to her file request and also enclosed a copy of an executed Full and Final Release relating to the tort action.
23On or about May 27, 2020, the respondent sent correspondence to the applicant providing approval for the $6,000.00 funeral expenses being sought, explaining it had received confirmation from WSIB that there was no file.
24The applicant states that she waited nearly 6 months to receive approval of the funeral benefit from the respondent. The applicant submits that the respondent’s failure to comply with the timelines set out in s.43(1) and (2) of the Schedule was unreasonable and warrants an award pursuant to section 10 of Ontario Regulation 664.
25The onus is on the applicant to provide evidence that she was not claiming benefits under WSIB. The respondent made requests to the applicant to provide evidence to confirm that the applicant was making a claim under the Schedule, and not thorough the WSIB. On April 16, 2020, the respondent wrote to the applicant and advised that it continued to wait for the WSIB Assignment of Benefits, or alternately, proof from WSIB that a claim has not been presented to WSIB and that no WSIB benefits are payable in relation to the accident.
26The applicant’s submissions indicate that she attempted to get this confirmation from the WSIB on or about March 4, 2020, and by further follow up on April 16, 2020. The applicant satisfied the respondent’s request only on or about May 27, 2020 when the respondent advised by way of letter to the applicant that it had received confirmation from WSIB that there was no file in relation to the accident. After having received this confirmation, by way of the same letter the respondent advised that it approved the $6,000.00 in funeral expenses.
27Based on the records and facts presented by the parties, I find that the application for the Death and Funeral Benefits (OCF-4) was completed on May 27, 2020, once the respondent received confirmation from WSIB that there was no claim filed. An application must be complete for the insurer to assess the eligibility for the benefit. The applicant was made aware by the respondent that there was a priority dispute pending and was presented with several section 33 requests for addition information and completed form(s) from the respondent.
28Given the respondent’s investigation revealing that the accident occurred during the course of R.W. carrying out work duties, it is reasonable for the respondent to request that the applicant clarify whether a claim under WSIB was made, which would disentitle the applicant from receiving the benefit under the Schedule. Based upon the evidence presented, there was some delay by the applicant in satisfying the respondent’s section 33 requests.
29I find that the respondent paid the benefit less than 30 days after it received the completed application and in accordance with the timelines set out in the Schedule. The respondent’s payment was not overdue during the times alleged by the applicant, and therefore, no interest is payable.
30I do not find the case law presented in the applicant’s submissions to be of assistance insofar that it cannot overcome the finding of fact that the benefits were paid after receiving the completed application, in accordance with the timelines prescribed by the Schedule.
ORDER
31For the reasons above, the applicant is not entitled to interest. Further, as the respondent did not unreasonably withhold or delay payment, there is no special award.
Released: November 22 19, 2021
__________________________
Daniela Corapi
Adjudicator
Footnotes
- O. Reg. 34/10 as amended.