Released Date: 10/09/2020
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.S.
Applicant
and
Echelon General Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Paul Auerbach, Counsel
For the Respondent:
Laura Emmett, Counsel
Heard by way of written submissions and via teleconference
Via teleconference: July 6, 2020
REASONS FOR DECISION AND ORDER
OVERVIEW
1C.S. (the “applicant”) was injured in an automobile accident on September 3, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from the respondent.
2The respondent denied the applicant’s claims on the basis that they are not lost educational expenses within the meaning of the Schedule.
3As a result, the applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal—Automobile Accident Benefits Service (the “Tribunal”). The parties attended a case conference but were unable to resolve all of the issues in dispute.
4Pursuant to the Case Conference Order of Adjudicator Lake dated May 1, 2020, this application proceeded to a written hearing before me on August 24, 2020. A teleconference was scheduled for July 6, 2020 for the purposes of the cross-examination on the affidavit.
ISSUES TO BE DECIDED
5I have been asked to decide the following issues:
- Is the applicant entitled to $12,763.00, representing an unapproved portion of the original amount of $15,359.00, for lost educational expenses, submitted on January 4, 2019, and partially denied by the respondent on May 2, 2019?
- Is the respondent liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
- Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6I find that the applicant is not entitled to $12,763.00 representing the unapproved portion of the original amount of $15,359.00 for lost educational expenses.
7I find that the applicant is not entitled to an award under O. Reg. 664.
8I find that the applicant is not entitled to interest claimed.
ANALYSIS
The eligibility criteria for lost educational expenses
9Section 21 of the Schedule sets out the eligibility criteria for entitlement to lost educational expenses. Section 21(1) states:
The insurer shall pay for up to $15,000 for lost educational expenses incurred by or on behalf of an insured person who sustains an impairment as a result of an accident if,
(a) at the time of the accident, the insured person was enrolled in a program of elementary, secondary, post-secondary or continuing education; and
(b) as a result of the accident, the insured person is unable to continue the program. O. Reg. 34/10, s. 21 (1).
10Section 21(2) provides the respondent with the right to request a disability certificate from a person who applies for reimbursement of lost educational expenses. Section 21(3) requires the applicant to provide a disability certificate within 15 business days of this request. Section 21(4) stipulates that the applicant is not entitled to any lost educational expenses until a completed disability certificate is provided.
11Section 21(5) provides some guidance regarding what a lost educational expense is. Section 21(5) defines a lost educational expense as:
In this section, “lost educational expenses” means expenses incurred before the accident for tuition, books, equipment or room and board in respect of the program term or program year in which the insured person was enrolled at the time of the accident, if the expenses are related to the program that the insured person is unable to continue. O. Reg. 34/10, s. 21 (5).
12Sections 21(1) and 21(5) of the Schedule need to be read together for the purposes of determining whether the applicant is entitled to lost educational expenses. In addition to establishing the eligibility criteria in section 21(1), the applicant will also need to prove the following:
- The expenses were incurred before the accident;
- The expenses were for tuition, books, equipment or room and board;
- The expenses were in relation to the program in which he was enrolled in at the time of the accident; and
- The expenses were related to the program that he was unable to continue.
13As noted in Owusu v. TD Home & Auto Insurance Company et al, “the burden is on the applicant to establish the elements required to show entitlement to benefits”.1 The Court confirmed that there is no presumption of entitlement created in the legislation, nor should one be implied.
Background
14At the time of the accident, the applicant was enrolled as a full-time student at [college] in the [subject] program. The applicant had applied to the Ontario Student Assistance Program (“OSAP”) and was approved for a combination of loans and grants for his third and fourth semester.
15The applicant was approved for grants in the amount of $9,230.00 and loans in the amount of $6,129.00 totaling $15,359.00. The breakdown is as follows:
Ontario Student Grant $6,189.00
Canada Student Grant for Full-Time Students $1,471.00
Skills Boost Top-Up to the Canada Student Grant $785.00
Canada Students for Persons with Dependents $785.00
Canada-Ontario Integrated Loan $6,129.00
16The applicant was unable to attend school for the fall semester as a result of the accident. His OSAP grants in the amount of $9,230.00 turned into loans as his enrollment status changed, and he must now repay those amounts. The applicant’s position is as follows:
The applicant, [C.S.], submits that the lost educational expenses that are in dispute are reasonable and necessary as he would not have borrowed money from the Ontario Student Assistance Program (“OSAP”) and moved to an apartment close to the college had he not been enrolled as a student. The motor vehicle accident occurred just before classes actually started, and just as Mr. [S.] and his wife were packed up and ready to move into the apartment.
17The applicant has argued that these amounts are lost educational expenses because it is a debt that he would not have accumulated but for the accident. The applicant is of the view that he is entitled up to $15,359.00. The applicant’s position is that the grants were intended to help pay for tuition, supplies and housing (room and board).
18In denying the applicant, the respondent submits that the applicant has failed to establish entitlement to any additional “lost educational expenses” within the meaning of the Schedule. Furthermore, the respondent states that it has reimbursed the applicant for the tuition costs at [college] for the fall semester of 2018. The respondent is of the position that no further amounts are owing as the balance of the claims sought for the rental expenses and the OSAP loans/grants are not considered to “lost educational expenses” within the meaning of the Schedule.
Issue 1: Is the applicant entitled to lost educational expenses?
19In my view, the applicant must connect the dots when seeking entitlement to benefits. Incurring a debt through OSAP because of an accident in itself is not enough to qualify for lost educational expenses. The applicant must show how the money that he borrowed meets the eligibility criteria set out in section 21 of the Schedule.
20The applicant has not proved his entitlement to lost educational expenses such as for tuition, books, equipment or room and board. With respect to tuition, the respondent reimbursed the applicant in the amount of $2,596.00 plus $108.66 and therefore is not an expense that is in dispute. As for the equipment and books, the applicant has failed to provide a breakdown or evidence, such as receipts, to corroborate these expenses.
21I find that the applicant is not eligible for lost educational expenses related to room and board. The applicant’s spouse was cross-examined on her affidavit and provided testimony regarding the tenancy. The applicant did not submit the affidavit as part of his submissions. However, the respondent submitted the transcript from the cross-examination as evidence.
22At the time of the accident, the applicant’s family was residing with his spouse’s parents. The applicant’s spouse testified that they had decided to move out of her parents’ home due to the applicant’s enrollment at [college]. She did not want him to spend time commuting and wanted to live nearby in case she needed assistance with childcare. She testified that she and the applicant’s father attended and viewed the unit at [address] in the [neighborhood] for the first time on September 4, 2018. The rental application was signed by the spouse and the applicant’s father on September 4, 2018. This is a day after the accident.
23According to the applicant’s spouse, it took approximately one week for the rental application to be approved. She and the applicant’s father signed the rental agreement on September 11, 2019. As per the rental agreement, the tenancy commenced on September 15, 2018 and ended on September 30, 2019. The rent was $1,494.00 per month. The applicant’s spouse and child moved into the unit on September 15, 2018.
24In his submissions, the applicant has argued that the decision to move to [neighborhood] was made before the accident. The submissions and reply submissions indicate that the applicant and his spouse had entered into a verbal agreement with the landlord to rent the unit prior to the accident. Furthermore, it is stated in the submissions that in the days leading up to the accident, the applicant and his family had already packed their household belongings in anticipation for the move.
25However, the applicant has not advanced any evidence that corroborates this. This was not mentioned during the cross-examination. Nor is there any evidence from the landlord that supports this fact. I cannot rely on the applicant’s submissions alone as evidence. The applicant needs to provide evidence to support this claim. I am not persuaded by the applicant’s submission.
26Section 21(5) of the Schedule makes it clear that a lost educational expense, such as room and board, must be incurred before the accident. In this particular case, the evidence shows that the expense for room and board was incurred after the accident. The applicant did not pay rent for the unit prior to the accident. In my view, the applicant has not provided me with any evidence that supports entitlement to lost educational expenses for room and board. An applicant must satisfy all of the criteria set out in sections 21(1) and 21(5) of the Schedule when seeking lost educational expenses.
27While I recognize that the timing of the accident is unfortunate, granting this expense would be a departure from what the legislature intended. The fact that the legislature has required that this expense be incurred prior to the accident leads me to believe that expenses that are incurred after an accident should not be considered as lost educational expenses.
28As such, I find that the applicant is not entitled up to $12, 763.00, representing an unapproved portion of the original amount of $15,359.00 for lost educational expenses.
Issue 2: Is the respondent liable to pay an award under O. Reg. 664?
29The applicant seeks a special award under s. 10 of the O. Reg 664 on the basis that the respondent unreasonably withheld or delayed payments to the applicant. The applicant has not provided any submissions or evidence that proves that the respondent unreasonably withheld or delayed payments to him. Hence, I find that the applicant is not entitled to an award under s. 10 of the O. Reg. 664.
Issue 3: Interest
30As I have found that the applicant is not entitled to lost educational expenses, interest is not payable.
CONCLUSION
31For these reasons provided above, I find that the applicant is not entitled to lost educational expenses. His application is dismissed in its entirety.
Released: October 9, 2020
___________________________
Tavlin Kaur
Adjudicator
Footnotes
- Owusu v. TD Home & Auto Insurance Company et al, 2010 ONSC 6627 at para 8