Released Date: 10/21/2020
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:
D. A. S.
Applicant
and
Western Assurance Company
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant:
James Armstrong, Counsel
For the Respondent:
Danielle N. Lecours, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant, (“D.A.S”) was involved in an automobile accident on May 5, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2D.A.S. applied for certain benefits and later applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for a determination of her claim.
PRELIMINARY ISSUE
3I am to decide the following issue:
i. Does the Tribunal have jurisdiction to determine a non-earner benefit (NEB) claim where the applicant has not submitted an application and where the respondent has not denied a claim for that benefit?
RESULT
4The Tribunal does not have jurisdiction to adjudicate a claim for a NEB in the absence of a denial of a claimed benefit.
ANALYSIS
5Section 280 of the [Insurance Act]1 empowers the Tribunal to resolve disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled. For clarity, subsections 280(1) and (2) read as follows:
280(1) This section applies with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled. 2014, c. 9, Sched. 3, s. 14.
(2) The insured person or the insurer may apply to the Licence Appeal Tribunal to resolve a dispute described in subsection (1). 2014, c. 9, Sched. 3, s. 14.
6The language of the provision is clear. The Tribunal has jurisdiction over dispute resolution. Absent a denial of a benefit, there can be no dispute. The Tribunal has no jurisdiction to adjudicate a claim for a NEB, or any other benefit, until that claim is disputed by the insurer.
7D.A.S. claimed statutory accident benefits by submitting a Disability Certificate (OCF-3) on May 8, 2017 and an Application for Accident Benefits (OCF-1) several months later, on September 12, 2017.
8The Disability Certificate (OCF-3) indicated that D.A.S. met the tests for entitlement to both an income replacement benefit (IRB) and a NEB.
9On November 1, 2017, in accordance with s. 35(1) of the Schedule, Western advised D.A.S. in an Explanation of Benefits (EOB) that she needed to elect, within 30 days after receiving the notice, the benefit (IRB or NEB) she wished to receive. Accompanying the EOB, Western sent a description of the benefits available to D.A.S. and a blank Election of Benefits Form.
10D.A.S. did not return a completed Election of Benefits form within 30 days. On September 26, 2019, she filed an application with the Tribunal.
11On March 20, 2020, almost six months into the Tribunal proceedings, D.A.S. submitted a completed Election of Benefits form indicating her election for a NEB.
12Because D.A.S. failed to elect before filing an application with the Tribunal, Western did not have an opportunity to properly adjust her claim. It did not have the opportunity to consider the information in support of her claim and approve or deny it. Without a denial, there can be no dispute. Without a dispute, the Tribunal has no jurisdiction to adjudicate D.A.S.’s claim.
13It may be open to D.A.S. to file an application with the Tribunal at some point in the future if Western denies her NEB claim. Her present application does not properly fall within the jurisdiction of the Tribunal.
ORDER
14D.A.S.’s claim for a NEB is dismissed.
Released: October 21, 2020
______________________________
Theresa McGee
Vice-Chair