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:
[The Applicant]
Applicant
and
Pafco Insurance Company
Respondent
DECISION
ADJUDICATOR:
Stephanie Kepman
APPEARANCES:
For the Applicant:
[The Applicant], Applicant, Self-Represented
For the Respondent:
Jennifer Grifiths, Counsel
Denise Felstead, Claims Adjuster
Court Reporter:
Greg Vaughan
HEARD: In-Person:
September 13, 2019
OVERVIEW
1The applicant, identified as [the applicant], was involved in an automobile accident on April 4, 1997, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
ISSUES IN DISPUTE
2The preliminary issues in dispute were identified and agreed to as follows:
a. Does the Tribunal have jurisdiction to hear the applicant’s claims for:
i. Income replacement benefits from April 4, 1997 to date?
ii. Any medical and rehabilitation benefits from April 4, 1997 to date?
iii. A determination of whether the applicant sustained a catastrophic impairment?
RESULT ON THE PRELIMINARY ISSUES
3I find that the Tribunal does not have jurisdiction to hear the applicant’s claims for income replacement, medical and rehabilitation benefits and a determination of whether the applicant sustained a catastrophic impairment.
FACTS
4The applicant was involved in an accident on April 4, 1997.
5On November 30, 2018, the Tribunal received the applicant’s application for dispute resolution over his entitlement to income replacement benefits, medical and rehabilitation benefits and a catastrophic impairment determination.
6The parties participated in a Case Conference at the Tribunal on April 3, 2019 but were unable to resolve any of the issues in dispute.
7During the Case Conference, the respondent raised several preliminary issues to be addressed before the substantive issues. Preliminary issues must be determined prior to substantive issues, as their determination effects if and how the substantive issues will be addressed. In this case, the respondent has questioned whether the Tribunal has the jurisdiction to hear the applicant’s matter.
8The parties originally intended to hold the in-person hearing for the preliminary issues on May 21, 2019. However, due to procedural issues, the hearing was adjourned to ensure that the applicant was assisted in providing his supporting materials to the respondent.
PROCEDURAL ISSUES
9Before the hearing of the preliminary issues, there were several procedural issues to be addressed.
10During the Case Conference, the parties were given deadlines to submit their evidence in advance of the in-person hearing.
11The applicant arrived at the in-person hearing on May 21, 2019 with a brief of evidence. At the hearing, he presented the Tribunal with a copy but refused to do so for the respondent, stating that it should have copies of the documents he was relying on.
12The respondent requested an adjournment given that it did not have a copy of the documents that the applicant was relying on and did not have an opportunity to review the documents in advance of the hearing.
13After discussion with the parties, the hearing was adjourned to allow the Tribunal to facilitate the applicant providing the respondent with a digital copy of the evidence he intended to rely on.
14When the hearing resumed on September 13, 2019, the applicant tried to submit more evidence to rely on during the hearing. The respondent objected to this, stating that it once again did not have a chance to review the evidence that the applicant wished to submit as he did not provide a copy for the respondent.
15The Tribunal did not accept this additional evidence. The Tribunal explained to the applicant that he could not rely on documents he did not give to the respondent in advance of the hearing, as previously ordered by Adjudicator Robert Watt. The applicant was given the option to once again adjourn in order to allow him to serve his additional documents on the respondent, or to continue with the preliminary hearing and not rely on those documents. The applicant chose to proceed.
LAW
16The applicant did not direct the Tribunal to specific law regarding his application for benefits. Instead, he relied on the principles of natural justice. He also relied on the respondent’s duties and responsibilities as an insurance provider.
17The respondent directed the Tribunal’s attention to sections 31(1), 32(2), 32(3) and 51 of the Schedule.
18Section 32(2) states that an insurer must promptly provide an applicant with appropriate application forms, information about benefits available under the Schedule, information to assist the person in applying for benefits, and information about electing a specified benefit such as an income replacement or non-earner benefit.
19Section 32(3) states that an applicant must apply for a benefit by submitting an OCF-1 within 30 days after receiving the application forms.
20Section 31(1) states that an applicant’s failure to comply with the time limits of Part X of the Schedule on the procedures for claiming benefits does not disentitle them to benefits provided they have a reasonable explanation.
21Section 40 provides the steps an injured person may take to apply for a determination of whether they sustained a catastrophic impairment as a result of an accident.
22Section 51 states that an application for a benefit under the Schedule must be commenced within 2 years after the insurer’s refusal to pay the amount claimed.
ANALYSIS
23The applicant’s position is that the respondent never provided him the necessary forms to apply for accident benefits and is entitled to income replacement benefits, medical and rehabilitation benefits, and a CAT determination related to his accident. Therefore, he should be entitled these benefits now.
24The respondent’s position is that the Tribunal does not have the jurisdiction to hear the applicant’s claims, as he has never completed the required Application for Accident Benefit (“OCF-1) under the Schedule. Therefore, he cannot appeal his denial of benefits, since no benefits were ever denied.
25The respondent also argues that the applicant has not provided a reasonable explanation as to why he failed to apply for benefits within the prescribed time set out in the Schedule.
26Prior to April 1, 2016, an applicant was required to mediate and either commence an arbitration or action within two years of after an insurer’s refusal to pay the amount claim in respect of a benefit. This regime was managed by the Financial Services Commission of Ontario (“FSCO”).
27Under that regime, an applicant had an extra 90 days after the Report of Mediator in which to file for a proceeding at FSCO or to commence a court action. The 90-day grace period was removed by the changes to the Schedule and the Insurance Act effective April 1, 2016, when the Tribunal assumed jurisdiction over automobile accident benefits claims. The limitation period of two years, however, did not change after April 1, 2016.
28In this case, I must determine if the Tribunal has jurisdiction to hear the applicant’s claims.
29The applicant argued that the respondent did not provide him with the necessary application forms as required by section 32(2). During his in-person testimony, the applicant told the Tribunal that after he was injured from his accident, he met with adjuster Chris Norton in May of 1997. He claims that Adjuster Norton did not provide the applicant with the necessary forms after his accident.
30The applicant provided the Tribunal with evidence that he had received a payment of $1,220.35 for a treatment plan.
31He then led the Tribunal’s attention to a form he received from Adjuster Norton, where he showed that Mr. Norton left the space “return form to” blank. The applicant alleges that Mr. Norton was trying to mislead the applicant by making it difficult to know where to send the completed forms to.
32The applicant also stated that the respondent acted in bad faith by delivering the application forms to the applicant’s incorrect residential address. He states that this conduct by the respondent gives him a reasonable explanation in accordance with section 31(1) of the Schedule for not respecting the time limits prescribed by section 32(3).
33The respondent argued that it made numerous attempts to provide the applicant with the necessary application forms as required by section 32(2). It first pointed the Tribunal’s attention to the applicant’s testimony on cross-examination that he had provided the respondent with at least 4 separate mailing addresses following his accident. This was because he was homeless and without a permanent address.
34The respondent also relied on the applicant’s testimony, including his admission that he had previously been represented on his current claim at its onset by paralegal [A.L.]. The applicant told the Tribunal that his paralegal had been contacting Pafco on his behalf and he did not know how to contact Mr. Norton directly.
35The applicant stated that when his paralegal ended his representation of the applicant, the applicant visited Pafco and Adjuster Norton directly in or around June of 1997. The applicant testified that he felt that there was confusion regarding his addresses after this meeting with Chris Norton. Unfortunately, the applicant was not able to corroborate this testimony with documentary evidence.
36The respondent also relied on a correspondence between Adjuster Norton and the applicant, submitted by the applicant in his brief. It points the Tribunal to a letter, hand delivered to the applicant on November 6, 1997, which reminds him to complete an additional treatment plan should he require further treatment. However, the applicant never completed or submitted the forms.
37The respondent directs the Tribunal’s attention to page 130 of the transcript of the hearing testimony, which it provided to the Tribunal and the applicant, where the applicant admitted that he received a complete accident benefit package from the respondent.
38The respondent further argues that the applicant has not provided the respondent or the Tribunal with a completed OCF-1. It relies on the applicant’s testimony, at pages 131 and 132 of the transcript, where the applicant states that he does not think he ever actually completed an OCF-1 related to his accident.
39It argues that without completing an OCF-1, the applicant has not applied for benefits. Therefore, since no benefits have ever been denied by the respondent, the Tribunal does not have the jurisdiction to handle an appeal of said benefits.
40It continued by stating that even if the applicant had completed an OCF-1, he has not provided a reasonable explanation for his failure to comply with the time limits as set out in section 31(1) of the Schedule.
41The respondent also brought the Tribunal’s attention to the fact that the applicant has not provided it nor the Tribunal with an Application for Determination of Catastrophic Impairment (“OCF-19”) or followed the required steps of section 40 for applying for a determination of catastrophic impairment.
42Based on the above-mentioned evidence, I conclude that the applicant was in contact with Adjuster Norton. During some, if not all, of this period, the applicant was represented by a paralegal. This conclusion is supported by the applicant’s own testimony.
43After weighing the evidence from the hearing, I conclude that during this time, the applicant was mailed several copies of his OCF-1 forms to complete. He was also asked to complete said forms by the adjuster. He failed to do so within the prescribed limits set by the Schedule.
44The applicant explained that he provided at least 4 separate mailing addresses for his forms. However, he himself admitted that he has still not completed the OCF-1 required for his claims to be considered. Given that at least 23 years have passed, the Tribunal wonders why the applicant has failed to do so.
45The jurisdiction of the Tribunal is to consider matters that have been denied by insurance companies. However, without the applicant completing an OCF-1 as required by section 32(3) of the Schedule, the Tribunal does not have the jurisdiction to consider the applicant’s request.
46The Tribunal is a recourse for the public who have applied to insurance companies for automobile accident benefits and have been denied. In this case, the applicant has not applied for any benefits, therefore none have been denied. Since no benefits have been denied, the applicant cannot seek any relief from the Tribunal.
47Although the parties did not specifically address the issue of the 2-year limitation period found in section 51 of the Schedule, the Tribunal will address it in this decision.
48Though the Tribunal has already determined that it does not have jurisdiction to hear the application on the basis that the applicant never filed an OCF-1, I would have also found that the applicant had not met the limitation period or provided a reasonable explanation for not meeting it.
CONCLUSION
49Based on my reasons set out above, I find that:
a. The Tribunal does not have jurisdiction to hear the applicant’s claims for:
i. Income replacement benefits from April 4, 1997 to date;
ii. Any medical and rehabilitation benefits from April 4, 1997 to date; and;
iii. A determination of whether the applicant sustained a catastrophic impairment.
Released: February 11, 2020
Stephanie Kepman
Adjudicator