Citation: K.A. vs. Intact Insurance Company, 2020 ONLAT 19-004459/AABS

Released Date: 10/26/2020

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:

K.A.

Applicant

and

Intact Insurance Company

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Ramy Akladios Alexei Antonov

For the Respondent:

Safina Khan

HEARD:

Via written submissions

OVERVIEW

1The applicant was injured in an accident on May 7, 2017 and sought various benefits from the respondent, Intact, including a Non-Earner Benefit (“NEB”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). At the time of the accident and thereafter, the applicant was unemployed and receiving ODSP benefits.

2On May 11, 2017, Intact sent the applicant a benefit information package, which included a description of the NEB and the length of time the benefit was payable, as well as a Disability Certificate (“OCF-3”), which the letter explained was to be completed by his health practitioner.

3It was not until July 3, 2018 that the applicant responded to Intact, submitting an Election of Benefits form (“OCF-10”) electing to receive the NEB. Notably, the OCF-10 was not accompanied by an OCF-3 from a health practitioner confirming the applicant’s complete inability to carry on a normal life, which is the test under s. 12(1) of the Schedule for entitlement.

4Instead, it was not until September 5, 2019—121 weeks after the date of the accident—that the applicant submitted his completed OCF-3 to Intact. On September 16, 2019, Intact wrote to the applicant to acknowledge receipt of the OCF-3 and explain that he was now ineligible for the NEB due to the fact that he submitted the OCF-3 more than 104 weeks after the accident as s.12(3)(c) requires, and in contravention of ss. 36(2) and (3) of the Schedule.

5The applicant filed an application with the Tribunal for resolution of the dispute. Intact raised the preliminary issue that the applicant’s NEB claim is statute-barred from proceeding under s. 36 due to his failure to submit a complete application, including an OCF-3, within the 104-week period of eligibility. The applicant submits that he has a reasonable explanation, arguing that he was self-represented and that Intact did not provide him with sufficient notice of its requirement that he submit the OCF-3 in order to process his NEB claim.

ISSUES IN DISPUTE

6According to the parties’ submissions, the following issues are in dispute:

i. Whether the submission of an OCF-3 121-weeks post-accident disentitles the applicant’s claim for a NEB pursuant to s. 12?

ii. Whether the applicant is statute-barred from proceeding with his claim for a NEB under s. 36 due to his failure to submit a completed OCF-3?

result

7The applicant’s claim for a NEB is statute-barred under s. 36 due to his failure to submit a completed OCF-3 within 104 weeks of the accident.

ANALYSIS

NEB claims – ss. 12 and 36

8Section 12 provides that an insurer shall pay for a NEB to an insured who sustains an impairment as a result of an accident and suffers a complete inability to carry on a normal life as a result of that accident within 104 weeks. Sections 12(3) (a) and (c) further state that the insurer is not required to pay a NEB for the first four weeks after the onset of the disability and for any period more than 104 weeks after the accident.

9Meanwhile, s. 36 outlines the process for claiming a NEB. Section 36(2) states that an insured must submit a completed OCF-3 with their application for a specified benefit pursuant to s. 32. Section 36(3) sets out the entitlement period for the NEB once the completed OCF-3 is received: essentially, an insured who fails to submit a completed OCF-3 is not entitled to a NEB for any period before the completed OCF-3 is submitted.

10As we know, the applicant did not submit his completed OCF-3 until September 5, 2019, or 121 weeks following the accident. Put another way: the applicant did not complete his application for the NEB by submitting the OCF-3 until 17 weeks after his period of entitlement to the NEB had elapsed. Accordingly, the applicant is not entitled to payment for a NEB for any period prior to September 5, 2019, regardless of the merits of his claim.

11I agree with Intact that s. 36 provides no exceptions to the above requirement that an insured seeking a NEB must submit a completed OCF-3 and that an insurer is not required to make payment until that application is complete. I further agree that the language is compulsory: s. 36 statutorily-bars an applicant’s claim where the OCF-3 was submitted following the 104-week period of NEB eligibility provided by s. 12. I follow the binding decision of the Superior Court and am persuaded by the FSCO and Tribunal decisions on this issue that were provided by Intact.¹

12While the applicant agrees that a NEB is only payable for the first 104 weeks following an accident, he points to s. 34 of the Schedule, which provides that an insured’s failure to comply with a time limit does not disentitle them to a benefit if they have a reasonable explanation. The applicant submits that since he was self-represented when he first initiated his claim (he secured counsel in November 2018) that he has a reasonable explanation for not submitting the OCF-3, as he is a layman without any legal knowledge and only received one request for an OCF-3 from Intact following the initial benefit package. The applicant submits that as a self-represented applicant he was not able to determine on his own whether the OCF-3 was reasonably required, was unable to appreciate the consequences of failing to submit same and asserts that Intact failed in its duty to assist him in applying for the benefit by not following up more.

13I disagree and refer again to the provisions of the Schedule which the applicant’s submissions do not squarely address. Section 12 is very clear: Intact is not required to pay for a NEB for any period more than 104 weeks following an accident. Section 36(3) is also very clear: the applicant is not entitled to a NEB for any period before the OCF-3 is submitted. Since the applicant did not submit the OCF-3 until September 5, 2019, or well after his period of entitlement to the NEB had elapsed, there is no basis on which he can even proceed and any explanation for the delay is irrelevant. Because the applicant did not submit the OCF-3 until 121 weeks after the accident, he was not entitled to the benefit during his entire period of eligibility under s. 12. And even if he were entitled to a NEB, Intact is not required to pay for it under s. 12(3)(c).

14In any case, for completion, I agree with Intact that s. 34 is a remedial provision for a missed time limit, while s. 36(3) speaks to a period of entitlement for a benefit. As there is no time limit set out in s. 36(3), unlike the provisions in s. 32, for example, I find the applicant’s argument that he has a reasonable explanation under s. 34 is irrelevant given that he failed to comply with the mandatory procedural requirements to make a NEB claim. While I agree with the applicant that the Schedule is consumer-protection legislation, I find the fact the applicant was self-represented for the first year and a half of his claim does not excuse his failure to submit the completed OCF-3 thereafter or until 121 weeks after his accident, which is fatal to his claim. Accordingly, I find that he is statute-barred from proceeding with his NEB claim due to his failure to comply with s. 36(2) and (3) and ineligibility under s. 12(3)(c).

15In submissions, Intact sought its costs pursuant to Rule 19 of the Tribunal’s Common Rules of Practice and Procedure, due to the applicant continuing with his NEB claim despite the clear language of the Schedule with respect to the application process and the mandatory requirement to submit an OCF-3. Intact submits that the applicant’s refusal to withdraw and lack of excuse for the late submission of the OCF-3 constitutes unreasonable, frivolous, vexatious and bad faith behaviour justifying costs. While Intact did not submit a proposed costs figure, I find costs are not appropriate at the preliminary stage, as the parties will be proceeding to a substantive issue hearing.

CONCLUSION

16The applicant’s claim for a NEB is dismissed as it is statute-barred under s. 36(3) and s. 12(3)(c). The remaining substantive issues shall proceed to the hearing scheduled for March 2021.

Footnotes

1. 1See, for e.g., Volpe v. Co-Operators Gen. Ins. Co., 2017 ONSC 261, at 55; Bonito and State Farm Mut. Ins. Co., 2017 Carswell Ont 11375 (FSCO July 10, 2017), at 44; K.D. v. Jevco Ins. Co., 2019 CanLII 126100 (ON LAT), at 11.