Rong Fu Chen and Su Fen Chen v. Travelers Insurance Company of Canada, 2021 CanLII 104632

Released Date: 10/18/2021

20-007658/AABS

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:

Rong Fu Chen and Su Fen Chen

Applicants

and

Travelers Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Robert Watt

APPEARANCES:

For the Applicants:

Philip Kai Kwong Yeung/Yu Jiang, Paralegals

For the Respondent:

Devan Marr, Counsel

HEARD:

By way of Written Submissions

OVERVIEW

1The applicants’ daughter was involved in an automobile accident on April 1, 2018, and the applicants (parents) sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicants were denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES TO BE HEARD

2Preliminary Issues:

Are the documents set out in Tabs 2, 20 and 21 of the applicants’ written submissions excluded from the evidence for failure to be produced in accordance with Adjudicator Johal’s order issued on November 20, 2020?
Are the applicants an “insured persons” as defined under the Schedule?

Substantive Issues:

Are the applicants entitled to a non-earner benefit in the amount of $185.00 per week for the period of April 29, 2018 to April 29, 2020?
Are the applicants entitled to $2,200.00 for a psychological assessment recommend by Somatic Assessments & Treatment clinic in a treatment plan (OCF-18) dated August 31, 2018 and denied on September 11, 2018?
Are the applicants entitled to interest on any overdue payment?

RESULTS

3The applicants are not entitled to any benefits claimed.

4The applicants are not entitled to any interest.

BACKGROUND

5On April 1, 2018, the applicants’ daughter was injured in a motor vehicle accident and was permanently impaired, requiring constant care. The applicants are the daughter’s parents who lived in China at the time of the accident and thereafter, came to Canada to look after their daughter. The parents submitted applications for accident benefits dated April 23, 2018.

6At the time of their daughter’s accident, the applicants lived in an apartment that was under their daughter’s name. They paid no rent. The applicants claim that their daughter was supporting them financially with cash, and that they had access to her bank account in China to help them with living expenses for food, clothing and personal care. The daughter’s bank account in China showed cash withdrawals of $9.699.71 and $193.99 (CAD) on April 28, 2017 and $290.99 (CAD) on June 11, 2017. No evidence was provided as to who withdrew the money, and what the money was used for.

7The applicants submitted bank statements that were missing some pages and were redacted. The information on the bank statements showed only the pension money received by the Father. The applicants submitted no information as to their needs, costs of living, what money, if any, their daughter was giving to them, or what finances or care they were receiving from their daughter. Both applicants were suffering from psychological issues, including depression, anxiety, etc., because of their daughter’s accident.

8The applicants’ position is that Dr. McDowall sent the respondent an OCF-3 on their behalf dated August 31, 2018. The respondent’s position is that no OCF-3 was sent on behalf of the applicants until November 19, 2020. The applicants apparently re-submitted an OCF-3 for both applicants on November 19, 2020 to the respondent, noting that this was a “resubmission.” The applicants did not provide any evidence of fax confirmation or that the purported OCF-3’s were ever sent to the respondent.

9The respondent has raised a further preliminary evidentiary issue, arguing that the applicants did not disclose the documents at Tabs