G. N. K. v. Aviva Insurance Canada, 2020 CanLII 30408

Citation: G. N. K. vs. Aviva Insurance Canada, 2020 ONLAT 18-006631/AABS

Released Date: 03/12/2020

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:

[G. N. K.]

Applicant

and

Aviva Insurance Canada

Respondent

DECISION – Preliminary Issue

PANEL:

Lori Marzinotto, Vice Chair

APPEARANCES:

For the Applicant:

Jeton Memeti, Counsel

For the Respondent:

Brittany K. Tinslay, Counsel

HEARD in writing:

April 25, 2019

OVERVIEW

1The applicant was injured in an automobile accident on July 9, 2017 (the “Accident”). He applied for benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”), was denied, and subsequently applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to resolve the benefits in dispute.

2A case conference was held on November 18, 2018, after which the Tribunal ordered (the “Order”)¹ a preliminary issue hearing in writing to determine the following issue:

i) Whether the applicant can re-elect to receive a non-earner benefit if he fails to meet the criteria for an income replacement benefit?

3The Order stated that, if the applicant succeeded on the preliminary issue, a case conference would be scheduled to deal with the substantive issues in dispute and resulting case management issues.

4Whether or not the applicant is entitled to the benefits that are listed as substantive issues in dispute is not before me to decide. The only issue before me is the preliminary issue.

5The applicant’s written submissions include submissions on the substantive issues. The respondent has asked that I disregard those, in particular the applicant’s submissions at paragraphs 4-5, 18-57, 60-64 and 66.

6I have reviewed the above-noted paragraphs and find that paragraphs 4, 23, 25 and 27 are actually relevant to the preliminary issue and, therefore, have been taken into account in arriving at my decision below. The remaining paragraphs are not and, accordingly, I disregard them.

PRELIMINARY ISSUE – Background

7There was conflicting information regarding the applicant’s employment status on his Application for Accident Benefits (OCF-1) (the “Application”) and the initial Disability Certificate dated July 11, 2017 (OCF-3).

8As a result, it appeared to the respondent that the applicant may have been eligible for both income replacement benefits (“IRBs”) and non-earner benefits (“NEBs”) and, for that reason, the respondent requested an Election of Benefits (OCF-10) from the applicant.

9The applicant elected IRBs on the election form. After the respondent acknowledged receipt of the election form and advised the applicant that he was not eligible for IRBs, the applicant then sought to re-elect and provided the respondent with another Election of Benefits form, this time electing NEBs.

RESULT

10I find that the applicant is not entitled to make a re-election of benefits seeking NEBs if he failed to meet the criteria for IRBs. The applicant elected IRBs and was only entitled to re-elect if he was determined to have sustained a catastrophic impairment. No such argument was made by the applicant and, therefore, he is not entitled to re-elect.

ANALYSIS

11Three days after the Accident, on July 12, 2017, the applicant advised the respondent that he had retained counsel, declined to speak with the adjuster, and asked the respondent to contact his counsel.²

12The respondent phoned the applicant’s counsel and asked which specific benefit the applicant was seeking.³

13There was conflicting evidence on the Application (OCF-1)⁴ and Disability Certificate (OCF-3)⁵ and, therefore, it appeared that the applicant may qualify for two or more benefits.

14More specifically, the Application indicated that the applicant was not employed at the time of the Accident, whereas the Disability Certificate indicated that the applicant was employed at the time of the Accident.

15The respondent sent a letter dated July 31, 2017 to the applicant (copied to counsel) providing a summary of available benefits.⁶ The respondent advised the applicant that he may be eligible for IRBs. However, the respondent still required a completed Employer Confirmation Form (OCF-2) in order to confirm if he was eligible. In addition, the respondent advised the applicant that he may be entitled to NEBs based on its review of the Application (OCF-1) and Disability Certificate (OCF-3) completed by Mackenzie Medical Rehabilitation Centre dated July 11, 2017.

16Given that the applicant may have qualified for two benefits, the respondent requested a completed Election of Income Replacement, Non-Earner or Caregiver Benefit (OCF-10) in order to determine the applicant’s eligibility for an IRB or NEB.⁷

17By letter dated August 16, 2017, the applicant, through his lawyer, submitted information indicating that he received Employment Insurance payments until December 30, 2016.⁸

18The applicant provided the respondent with the Election dated August 18, 2017, in which he elected to receive IRBs (the “Election”).⁹

19The Election includes a caution that the applicant’s election cannot be changed after the form has been submitted to the respondent unless the injury is determined to be catastrophic.

20After receiving the Election, the respondent provided the applicant with an explanation of benefits dated August 31, 2017 (the “Explanation of Benefits”).¹⁰ The respondent advised the applicant that he was not eligible for IRBs based on the Employment Insurance statements. The respondent had not received a completed Employer’s Confirmation Form (OCF-2) and advised that, if he was employed at the time of the Accident, to submit the OCF-2 as previously requested so that the respondent could determine the applicant’s eligibility for IRBs.

21The Explanation of Benefits indicated that, upon review of the Employment Insurance statements, the applicant was last paid employment insurance the week of December 18 – December 24, 2016. Therefore, pursuant to s. 5(1)1.ii.A of the Schedule, he was not entitled to IRBs.

22Section 5(1)1.ii.A of the Schedule indicates that the insurer shall pay an IRB if the insured was not employed at the time of the accident but was employed at least 26 weeks during the 52 weeks before the accident or was receiving benefits under the Employment Insurance Act at the time of the accident.

23The respondent determined that the applicant was not eligible to receive IRBs. The applicant was not receiving Employment Insurance benefits at the time of the accident and the applicant did not provide an OCF-2.

24It is unclear whether the applicant was working for at least 26 weeks during the 52 weeks before the accident. The only evidence I have before me on this point are the OCF-3 Disability Certificates dated July 11, 2017¹¹ and August 14, 2017,¹² which indicate that the applicant did work at least 26 weeks of the previous 52 weeks preceding the accident. However, this issue is not before me to determine.¹³

25On September 26, 2017, after receiving the respondent’s denial of IRBs, the applicant wrote to the respondent indicating that the OCF-3 of Dr. Chen dated August 14, 2017 supports his entitlement to both IRBs and NEBs. The letter was accompanied by an OCF-10 (election form) dated September 26, 2017,¹⁴ purporting to elect NEBs.

26Dr. Chen’s OCF-3 indicated that the applicant was not working at the time of the accident, did work at least 26 weeks of the previous 52 weeks proceeding the accident, and was not receiving Employment Insurance.¹⁵

27Prior to the applicant submitting his first Election dated August 18, 2017 electing IRBs, the respondent advised the applicant of the inconsistencies between the OCF-1 and OCF-3 regarding the applicant’s employment status. In addition, the OCF-3 dated July 11, 2017 indicated that the applicant suffered a complete inability to carry on a normal life. The inconsistencies and the possibility that the applicant may be eligible for IRBs and NEBs led the respondent to request the applicant make an Election as is required by s. 35 of the Schedule.

28The applicant clearly elected to receive IRBs in the Election dated August 18, 2017.

29Section 35(1) of the Schedule states that if an application indicates that the applicant may qualify for two or more of either IRBs, NEBs or caregiver benefits (Part II benefits), the insurer shall, within 10 business days after receiving the application, give a notice to the applicant advising the applicant that within 30 days, they must elect the benefit they wish to receive.

30Section 35(3) of the Schedule states that the applicant’s election under subsection (1) is final, regardless of any change in circumstances, and can only be changed if the applicant is determined to have sustained a catastrophic impairment.

31There is no evidence before me that the applicant has sustained a catastrophic impairment and no submissions have been made in this regard.

32At paragraph 10 of the applicant’s written submissions, the applicant cites sections 5 and 12 of the Schedule and concedes that he does not qualify for IRBs. As a result, the applicant submits that the request for an election from the applicant and the Election are invalid because he did not qualify for IRBs and, therefore, he should have the right to re-elect the benefit for which he is eligible.¹⁶ I disagree.

33Applying s. 5 of the Schedule to the facts, it is clear that the applicant may have qualified for two or more of the Part II benefits under the Schedule for the reasons already stated in this decision. As required by the Schedule, the insurer sought an election from the applicant. The applicant elected IRBs and is, therefore, not entitled to re-elect.

34The applicant submits that the Schedule does not stipulate why an election is final and that there should be a subsection to allow for a single change “due to error or qualification of the benefit elected.” The applicant submits that there is no relief in the legislation if the applicant does not qualify for the benefit he first elects and should be able to re-elect and that the correct election should be valid.

35While the Schedule may not stipulate why an election is final, it is clear from a reading of the Schedule that an applicant may only re-elect in very limited circumstances, that being if the applicant is determined to have sustained a catastrophic impairment. The wording in s. 35(3) is restrictive and stipulates that an applicant’s election “is final, regardless of any change in circumstances, and can only be subsequently changed” if the applicant is determined to be catastrophically impaired.

36An error or mistaken choice by the applicant when making an election as a basis for re-election is not contemplated in the Schedule.

37The applicant did not provide any caselaw supporting his position that he one should be able to re-elect in the event that he or she does not qualify for the benefit first elected.

38The applicant cites Beltrame v. Dominion of Canada General Insurance Co.¹⁷ for the proposition that an insurer has an obligation to carry out a proper investigation of a claim, consider all information, and is obliged to act in the best interest of the applicant. The applicant states this case is relevant because “the respondent should allow the change in election as it is for the best interest of their client.”

39I do not find that Beltrame assists the applicant. The respondent took the appropriate and required steps in requesting the election from the applicant given the inconsistent information in the OCF-1 and OCF-3. The applicant, represented by counsel, elected IRBs. Upon receipt of additional information from the applicant regarding employment status after the election had been made, the respondent denied the applicant IRBs. Thereafter, the applicant sought to elect NEBs.

CONCLUSION/ORDER

40I find that the applicant cannot make a re-election for NEBs given that he previously elected IRBs.

41Accordingly, I order that the application proceed to a hearing on all of the substantive issues in dispute listed in the Tribunal’s Order dated November 20, 2018, except for the issue of his entitlement to NEBs.¹⁸

42Within 30 days of the release of this decision, the applicant shall advise the Tribunal of a date convenient to the parties in order to schedule a case conference to set new timelines for any disclosure of documents and written submissions, as well as the parties’ availability for a new written hearing date.

43If the parties are able to resolve the substantive issues in dispute, the applicant shall immediately advise the Tribunal in writing.

Released: March 12, 2020

__________________________

Lori Marzinotto

Vice Chair

Footnotes

1. 1Written Submissions of the Applicant, Tab 10.
2. 2Written Submissions of the Respondent, Tab 4 at July 12, 2017 10:02 a.m.
3. 3Written Submissions of the Respondent, Tab 4 at July 31, 2017 10:50 a.m.
4. 4Written Submissions of the Applicant, Tab 1.
5. 5Written Submissions of the Applicant, Tab 3.
6. 6Written Submissions of the Applicant, Tab 8.
7. 7Written Submissions of the Respondent, Tab 9.
8. 8Written Submissions of the Respondent, Tab 10.
9. 9Written Submissions of the Applicant, Tab 7.
10. 10Written Submissions of the Applicant, Tab 8.
11. 11Written Submissions of the Applicant, Tab 3.
12. 12Written Submissions of the Applicant, Tab 25.
13. 13The respondent has indicated at paragraph 20 of its written submissions that no IRBs are payable in accordance with s. 5 of the Schedule “which states that the claimant must have been receiving benefits under the employment insurance act at the time of the accident in order to be eligible for the benefit.” However, this is incorrect. Section 5(1)1.ii.A of the Schedule is disjunctive not conjunctive – it states that if the applicant was not employed at the time of the accident but was employed for at least 26 weeks during the 52 weeks before the accident OR (not AND as stated by the respondent) was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident. It is possible that the applicant may have been eligible for IRB if he worked at least 26 weeks during the 52 weeks before the accident. This is relevant for the substantive issue regarding the applicant’s entitlement to IRBs.
14. 14Written Submissions of the Applicant, Tab 9.
15. 15Written Submissions of the Applicant, Tab 25.
16. 16I am not certain as to why the applicant would concede he does not qualify for IRB when entitlement to IRB is still a substantive issue in dispute.
17. 17Beltrame v. Dominion of Canada General Insurance Co., 2014 CarswellOnt 8657 at para. 40.
18. 18As per s.12(4)(c) of the Schedule, the insurer is not required to pay a NEB if the insurers person is eligible to receive and has elected under s.35 to receive IRB.