C.G. v. Pembridge Insurance Company, 2020 CanLII 51276

C.G. vs. Pembridge Insurance Company

Citation: C.G. vs. Pembridge Insurance Company, 2020 ONLAT 19-010979/AABS Release Date: 07/30/2020

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:

C.G. Applicant

and

Pembridge Insurance Company Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR: Sandeep Johal

APPEARANCES:

For the Applicant: Michael Ellis, Counsel For the Respondent: Brittanny Tinslay, Counsel

Heard: By way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on October 31, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant applied for accident benefits on November 8, 2016 and attempted to return to work on several occasions and was unable to do so as of June 2018. The applicant made a request for income replacement benefits (“IRB”) at this time.

3The respondent conducted insurer examinations (“IE”) and based on the IE reports, it denied the applicant an IRB. The applicant disagreed with the denial and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

4The respondent raised a preliminary issue at the case conference that the applicant is not entitled to an IRB as he did not apply for the IRB within 104 weeks from the date of the accident. As a result, this written preliminary issue hearing was scheduled.

PRELIMINARY ISSUE

5Is the applicant statute barred from any entitlement to an income replacement benefit because he failed to apply for this benefit within 104 weeks from the date of the motor vehicle accident?

RESULT

6The applicant failed to submit a completed Disability Certificate (“OCF-3”) within 104 weeks of the accident and is therefore not entitled to IRBs.

ANALYSIS

7For the following reasons, I find that the applicant did not submit a completed OCF-3 claiming an IRB within 104 weeks of the accident and is therefore not entitled to an IRB.

8Sections 36(2) and (3) of the Schedule state that in order to claim for a specified benefit, in this case, an IRB, the applicant shall submit a completed Disability Certificate (OCF-3) with his or her application. The applicant failed to do so and according to the Schedule, the respondent is not liable to pay for an IRB for any period before a completed OCF-3 is submitted.

9The applicant applied for accident benefits on November 8, 2016 and on December 1, 2016 the respondent acknowledged receipt of the Application for Accident Benefits (OCF-1) and stated that the applicant may be entitled to an IRB. The respondent further requested the applicant submit a fully completed OCF-3 to determine eligibility and entitlement to the IRB.² The applicant did not provide a completed OCF-3.

10The respondent sent further requests for the applicant to provide the OCF-3 and to confirm if the applicant was not claiming an IRB on February 20, 2017, April 11, 2017 and June 9, 2017.³

11The respondent continued to adjust the file despite not receiving the requested information and scheduled s.44 IEs to determine whether the applicant met the disability test for an IRB. On June 19, 2018, an Explanation of Benefits was sent advising the applicant that his entitlement to an IRB ceased as of that date.

12On August 22, 2019, the respondent received an OCF-3 which was dated March 5, 2019 indicating that the applicant suffers a substantial inability to perform the essential tasks of his pre-accident employment.

13The respondent submits that s. 36 of the Schedule creates strict requirements and an applicant who fails to submit a completed OCF-3 is not entitled to an IRB for any period before the OCF-3 is submitted. The respondent further submits that a complete claim for IRBs must be made within 104 weeks of the accident in order to be eligible for an IRB.⁴ Furthermore, it is the respondent’s position that, it is irrelevant whether the respondent is aware of the IRB claim because it had information from other documentation and not an OCF-3.⁵

14The respondent further relies upon S.B. v. Allstate Insurance,⁶ in support of its position that s. 36(2) puts the onus on the applicant to ensure that the required form, being the OCF-3, is submitted and completed before an entitlement to a benefit begins.

15The applicant takes the position that he made several attempts to return to work following the collision with his most recent attempt in December, 2017 which continued on a modified basis until June, 2018 at which point he was unable to continue to work. As a result of attempting to return to work, the applicant believed it was inappropriate to also request an IRB from the respondent.

16The applicant submits the respondent was aware of his attempts to return to work through numerous medical reports from the applicant’s medical practitioner and through the IEs that were conducted by the respondent.

17Following the IEs, the respondent denied the IRB on June 19, 2018. This was the first denial of the IRB and the applicant disputed the denial within two years as required by s. 56 of the Schedule.

18The applicant submits that he attempted to mitigate his injuries from the accident and attempted to work numerous times and June 2018 is when he discovered that his injuries made it impossible for him to continue working in any capacity. According to the applicant, June 2018 is when he discovered his entitlement to an IRB.

19The applicant relies upon the Ontario Court of Appeal decision in Tomec v. Economical Mutual Insurance Company,⁷ in support of his position that the refusal to pay the benefit is clearly tied to the applicant’s cause of action and absent a refusal to pay the benefit sought there cannot be a claim made for mediation or evaluation.⁸

20Furthermore, the applicant relies upon Tomec in support of his position that the limitation period for entitlement to apply for an IRB should only begin to run from the time the applicant discovered their inability to work and the need for the benefits.

21In my view, this preliminary issue is not about whether or not the applicant had a cause of action, or whether there was a proper refusal to pay the IRB, or even whether the applicant applied within the limitation period. This issue is whether the applicant complied with the requirements of the Schedule and actually applied for the IRB. The applicant submits that he was unable to continue work as of June 2018, which was still within 104 weeks of the accident.

22To apply for an IRB, the applicant must do so in accordance with s. 36 and in order to be eligible, he must satisfy the eligibility requirements in s. 5, that he was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. Then s. 6 states, the respondent does not have to pay an IRB after the first 104 weeks of the accident unless the applicant is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.

23The respondent relies upon JV v. TD Insurance Meloche Monnex in support of its position that s. 36 creates strict requirements and that a complete claim for IRBs must be made within 104 weeks of the accident, and on S.B. v. Allstate Insurance in support of its position that a completed OCF-3 must be submitted in order to be eligible for an IRB.

24In JV the applicant did not submit a completed OCF-3 until 139 weeks after the accident despite repeated requests by the respondent. It was held in that case that s. 36 creates strict requirements and that a complete claim for IRBs must be made within 104 weeks of the accident. Further, it did not matter that the respondent was “aware of” the applicant’s claim as “awareness” is irrelevant.⁹

25In S.G. it was held that the OCF-3 that was submitted was incomplete and the respondent made several requests for a completed OCF-3 which was not provided. In S.G. Vice-Chair Lester held that s. 36(2) puts the onus on the applicant to ensure the OCF-3 is submitted and completed before an applicant can be entitled to the benefit. As the applicant in S.G. did not submit a completed OCF-3, it was held that the applicant cannot be entitled to the benefit until they have done so.¹⁰

26I find the cases of JV and S.G. to be similar to the facts of the present case, that the applicant did not submit a completed OCF-3 within 104 weeks of the accident in accordance with s. 36 he is not entitled to claim an IRB.

27I do not find Tomec to be of assistance to the applicant because the facts of that case are distinguishable from the present case. In Tomec the issue was about whether a catastrophically impaired individual is precluded from claiming benefits which otherwise would not have been available in the non-catastrophic category. Tomec was also about whether the two-year limitation period in both s. 281.1(1) of the Insurance Act,¹¹ and s. 51(1) of the Schedule,¹² are subject to discoverability.

28The facts in the present are not the same as in Tomec. There is no issue about the two year limitation period with respect to the applicant’s claim. The issue is whether the applicant complied with the procedural requirements of s. 36 of the Schedule. In my view, I find the facts of this case to be similar to the facts in JV and S.G. In the present case, the applicant has not complied with the Schedule and did not submit a completed OCF-3 in order to claim a specified benefit, which includes an IRB, despite repeated requests to do so by the respondent.

29As a result of the above, I find that the applicant is not entitled to claim for an IRB as it was not applied for in accordance with the procedural requirements of the Schedule and not within 104 weeks of the accident.

ORDER

30The applicant’s claim for an IRB is dismissed.

31As per the Tribunal Order dated February 25, 2020 the parties shall provide the Tribunal, in writing, three dates within 30 days of the release of this decision that all parties are available to attend a telephone case conference to discuss the next steps related to the substantive issues in dispute.

Footnotes

1. 1O. Reg. 34/10.
2. 2Written Submissions of the Respondent at Tabs 2 and 3.
3. 3Ibid at Tabs, 4, 5 and 6.
4. 4JV v. TD Insurance Meloche Monnex, 2019 CanLII 110091 (ON LAT) at para 31. (“J.V.”)
5. 5JV. at para 32ii.
6. 62019 CanLII 119725 (ON LAT) at para. 19. (“S.B.”)
7. 72019 ONCA 882 (“Tomec”)
8. 8Tomec at para. 36.
9. 9JV, at para. 32.
10. 10S.G. at paras. 19, 21.
11. 11R.S.O. 1990, c. l.8
12. 12O. Reg. 403/96