S.M. v. Aviva Insurance Company of Canada, 2020 CanLII 14426

Citation: SM v. Aviva Insurance Company of Canada, 2020 ONLAT 18-009096/AABS

Tribunal File Number: 18-009096/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8., in relation to statutory accident benefits

Between:

[S.M.]

Applicant

And

Aviva Insurance Company of Canada

Respondent

PRELIMINARY ISSUE DECISION

Adjudicator: Avril A. Farlam, Vice Chair

Appearances:

For the Applicant: Zeitoon Vaezzadeh, Counsel

For the Respondent: Maggie Morgan, Counsel

HEARD In Writing: September 23, 2019

OVERVIEW

1The applicant, SM (“applicant”), was involved in an automobile accident on March 4, 2017 and sought benefits under the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (“Schedule”). The applicant filed an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service on September 25, 2018.

2This is a preliminary issue hearing to determine whether the applicant has fulfilled a statutory requirement for a non-earner benefit payment.

PRELIMINARY ISSUE TO BE DECIDED

3Pursuant to the Tribunal’s Order of July 9, 2019, the issue before me is whether the applicant is entitled to a claim for non-earner benefits despite failing to submit a completed disability certificate pursuant to the Schedule?

RESULT

4The applicant is not entitled to a claim for non-earner benefits because she failed to submit a completed disability certificate pursuant to the Schedule. The applicant’s claim is dismissed.

LAW AND ANALYSIS

Facts Not in Dispute

5The accident occurred on March 4, 2017.

6The applicant went back to work March 6, 2017.

7Upon being advised of the accident, the respondent provided the applicant with an application package, including an application for accident benefits and a disability certificate on April 24, 2017.

8On May 5, 2017, the respondent advised the applicant that she was not eligible for an income replacement benefit as she indicated on her application that she returned to work on March 6, 2017.

9The applicant submitted to the respondent a disability certificate dated July 24, 2017 completed by Dr. Tom Veiledal in which he checked “no” in answer to the question “Does the applicant suffer a complete inability to carry on a normal life?”

10By letter dated October 10, 2017, the respondent advised the applicant that she did not qualify for a non-earner benefit because the disability certificate completed by Dr. Tom Veiledal indicates she does not suffer a complete inability to carry on a normal life.

11The applicant did not submit any other disability certificate.

Is The Applicant Entitled to a Claim For Non-Earner Benefits Despite Failing To Submit A Complete Disability Certificate Pursuant To The Schedule?

12The issue before me is whether the applicant is entitled to claim for non-earner benefits despite failing to submit a completed disability certificate pursuant to the Schedule. The crux of the matter is that the disability certificate does not certify that the applicant qualifies for the benefit.

Positions of the Parties on the Applicant’s Disability Certificate

13The respondent submits that the applicant failed to submit a completed disability certificate certifying that she meets the criterion for non-earner benefits as required by s. 36 of the Schedule.

14The applicant submits that she did give to the respondent within 20 weeks of the accident a completed disability certificate properly executed by Dr. Veiledal although the NEB box was not check-marked in the affirmative by Dr. Veiledal.

Other Positions of the Parties

15The respondent also submits that the applicant is statutorily barred from applying to the Tribunal in accordance with s. 55(1) because she failed to notify the respondent of the circumstances giving rise to a claim for non-earner benefits or submit an application for the benefit within the time prescribed. In response the applicant submits that she notified the respondent of the circumstances giving rise to the claim for non-earner benefits pursuant to s. 55(1) of the Schedule, met the time frames in s. 36 and ought to be allowed to have her claim decided on its merits.

16These submissions are outside the scope of the issue before me and are not relevant to my determination.

Statutory Basis for a Non-Earner Benefit Claim

17Where an accident occurs after June 1, 2016, s. 12 of the Schedule requires an insurer to pay a non-earner benefit to an insured person who does not qualify for an income replacement benefit and who suffers from a complete inability to carry on a normal life as the result of an impairment sustained in an accident for up to two years, subject to a 4 week waiting period.

18Section 36(2) provides that an applicant for a non-earner benefit “shall submit a completed disability certificate”. This section puts the onus on the applicant to make sure that the disability certificate is submitted and completed before an entitlement to a benefit begins. This provides the opportunity for the insurer to determine entitlement and likewise, how to respond to the application. Section 36(3) provides that an applicant who fails to submit a completed disability certificate is not entitled to a specified benefit, including an NEB, for any period before the completed disability certificate is submitted.

19I find that the applicant did not submit a completed disability certificate for a non-earner benefit as required by s. 36(2), meaning “completed” in the sense that the Schedule contemplates.

20In the disability certificate signed on July 27, 2017 Dr. Veiledal certified that the applicant does not suffer from a complete inability to carry on a normal life. As the test for a non-earner benefit claim is the “complete inability to carry on a normal life as the result of an impairment sustained in an accident,” Dr. Veiledal is giving the medical opinion that the applicant does not meet the criterion for a non-earner benefit.

21In this particular case, the applicant’s disability certificate is the only disability certificate that can be looked at to establish her entitlement to a non-earner benefit. No other disability certificate was put forward by the applicant. There is no other medical report or letter giving an opinion that the applicant has a complete inability to carry on a normal life. The applicant put forward no other compelling medical evidence related to a non-earner benefit before me, only non-specific clinical notes not containing any specific medical opinion about the applicant’s inability to carry on a normal life, despite the respondent’s request on October 8, 2018 asking for more information in order to determine the applicant’s eligibility for a non-earner benefit. The applicant did not meet her onus to put forward a medical certification for her claim to a non-earner benefit. This respondent denied the claim for a non-earner benefit by letter dated October 10, 2017.

22The language of the requirement in s. 36(2) that an applicant for a non-earner benefit “shall submit a completed disability certificate” is clear when viewed in the context in which the language is used. The purpose of the disability certificate is that it is the foundation of the applicant’s claim, in this case, to a non-earner benefit. The fact that the applicant’s disability certificate in this particular case confirms the applicant does not have a complete inability to carry on a normal life as a result of the accident is notice to the respondent that there is no medical opinion at that time to support a non-earner benefit claim. In this case, that never changed. The disability certificate dated July 27, 2017 was never amended, supplemented or updated by another medical opinion and today remains the only opinion as to the applicant’s ability or inability to carry on a normal life as a result of the accident. The statutory requirement to submit a “completed” disability certificate can only be reasonably interpreted to mean completed in a manner that certifies that the applicant meets the criterion for non-earner benefits.

23This purposive interpretation of the section is consistent with the ruling of the Ontario Superior Court of Justice in Volpe v. Co-operators General Insurance Co., 2017 ONSC 261 (Ont. S.C.J.) in which Lofchik, J., citing precedent, observed that “…the “Disability Certificate is a basic prerequisite for a claim for Non-Earner Benefits.” Lofchik, J. also cited Ontario Court of Appeal precedent in which that court dismissed the plaintiff’s claim on a summary judgment motion because, in part, “…the plaintiff has never filed a disability certificate that certifies that she meets the criterion for non-earner benefits.”

24The applicant submits that I should take a holistic approach to interpreting the statute and permit the applicant’s claim to be decided on its merits, and not overly emphasize form over substance, as any delay in submitting medical evidence can be cured by suspending interest. The applicant relies on Bell ExpressVu Limited Partnership v. Rex², the Legislation Act³ and other case law. The Tribunal’s approach to statutory interpretation was explained by Executive Chair Lamoureux in M.F.Z. v Aviva Insurance Canada⁴ as being the modern approach involving consideration of three factors: the language of the provision, the context in which the language is used and the purpose of the legislation or statutory scheme in which the language is found. My interpretation of the statutory requirement for a completed disability certificate is consistent with the Tribunal’s modern approach to statutory interpretation. Section 64(1) of the Legislation Act does not refer to the Schedule specifically and I prefer the modern approach to interpreting it as set out by Executive Chair Lamoureux.

25The applicant also relies on 16-000063 v Dominion of Canada General Insurance Company,⁵ which is not helpful here as the issue was whether the applicant is entitled to seek both a non-earner benefit and an income replacement benefit which a different test than the issue before me. The applicant relies on Smith v. Co-operators General Insurance Co.,⁶ which is not helpful as that case was about the two year limitation period in s. 281(5) of the Insurance Act, which is not the issue before me. The applicant relies on ING Insurance Company of Canada v TD Insurance Meloche Monnex⁷ which does not assist here as this case dealt with what forms could amount to a completed application for benefits for purposes of section 2 of Ontario Regulation 283/95. The applicant also relies on D.S. v Certas Home and Auto Insurance Company⁸. Although this decision is not binding on me, it can also be distinguished on the basis that in that decision the applicant submitted an Election of Benefits, OCF-10, three months after the accident confirming her election of non-earner benefits and the respondent did not deny the application for non-earner benefits on the basis that the application was incomplete.⁹ Further, I have no evidence to suggest that the respondent had the required information to determine entitlement to a non-earner benefit as demonstrated by the respondent’s request on October 8, 2018 for more information in order to determine the applicant’s eligibility for a non-earner benefit.

26I find that in the particular circumstances of this case, the statutory requirement of completing the disability certificate within the meaning of s. 36(2) was not fulfilled by the applicant submitting a disability certificate certifying that the applicant does not meet the criterion for a non-earner benefit absent any other medical opinion to the contrary. The requirement in s. 36(2) is not procedural, it is substantive and there is good reason for it.

CONCLUSION

27For the reasons outlined above, the applicant’s application for a non-earner benefit is dismissed.

Footnotes

1. 1O.Reg. 34/10
2. 22002 SCC 42, [2002] 2 SCR 559 (SCC).
3. 32006, S.O. 2006, c. 21, section 64(1).
4. 42017 CanLII 63632 (ON LAT) para. 39.
5. 52016 CanLII 67139 (ON LAT).
6. 62002 SCC 30 (SCC).
7. 72010 ONCA 559.
8. 816-000279 v Certas Home and Auto Insurance Company, 2016 CanLII 73693 (ON LAT).
9. 9Ibid., para. 21.