Richard Pollitt v. Certas Home and Auto Insurance Company, 2021 CanLII 2050

19-009201/AABS

Released Date: 01/08/2021

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:

Richard Pollitt

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Self-Represented

For the Respondent:

Andrea R. Lim, Counsel

HEARD:

Via written submissions

OVERVIEW

1The applicant was injured in an accident on November 1, 2017, and sought various benefits, including an income replacement benefit (“IRB”), from the respondent, Certas, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). The Application for Accident Benefits (“OCF-1”) dated November 23, 2017 indicated that the applicant was 63 years of age at the time of the accident.

2In November 2017, Certas provided the applicant with information in order to apply for accident benefits, including an overview of available benefits that included a description of IRBs. It advised that the weekly maximum of $400 per week would apply to the applicant’s standard policy, as he had not purchased optional coverage.

3On December 12, 2017, the applicant was notified that Certas received the Disability Certificate (“OCF-3”) dated November 30, 2017 and the OCF-2 from his employer. Certas calculated his IRB to be payable at the statutory maximum of $400 per week. The applicant was also informed that there is a one-week waiting period during which no benefit is payable and that IRB is payable to a maximum of 104 weeks under the pre-104-week test for disability. After 104 weeks of disability, the applicant was informed that he must pass the test for post-104-week disability to continue to qualify for IRBs.

4The OCF-3 dated November 30, 2017 reported that the applicant passed the pre-104-week test for disability, being that he was substantially unable to perform the essential tasks of his employment as a result of and within 104 weeks of the accident. Certas provided an IRB cheque to the applicant in the amount of $1,600, representing the period of one-week post-accident, being November 9, 2017, to December 6, 2017. The applicant continued to receive cheques on a bi-weekly basis at the rate of $400 per week until November 8, 2019.

5On October 29, 2019, the applicant was notified by Certas that, in accordance with s. 8(1) of the Schedule, his IRB quantum would be determined based on a different “ramp down” formula due to the fact that his initial entitlement arose prior to his turning 65 years of age and it was the second anniversary of the day that he started receiving IRBs. As of November 9, 2019, Certas calculated the applicant’s IRB quantum at $16 per week and continues to pay IRB to the applicant to date.

6The applicant disagreed with Certas’ calculation of his IRB quantum and submitted an application to the Tribunal for resolution of the dispute. As I understand it, the applicant submits that he is entitled to a greater quantum of weekly IRB payments, being $885.21 per week. The applicant arrived at this quantum based on the fact that his income in the 52-weeks prior to the accident totalled $3,540.85 which, when divided by four weeks, results in the higher IRB amount he seeks. This amount is reflected in the OCF-2 which the applicant asserts is a “closed pleading” that is legally binding on Certas to pay. Further, the applicant requests an order for retroactive payment of the higher IRB amount back to November 1, 2017 and submits that Certas should be liable to pay IRB for the first week post-accident due to the seriousness of his condition. Finally, he submits that Certas’ “ramp down” calculation is incorrect.

7In submissions, the applicant also asserts that Certas’ calculation and “ramp down” of his IRB is in violation of ss. 8 and 15 of the Canadian Charter of Rights and Freedoms and the dispute resolution mechanisms of s. 280 of the Insurance Act. Finally, the applicant submits that he is entitled to $3,133.00, representing amounts paid to a denture clinic that was unable to treat him, as well as various other amounts for physiotherapy and orthotics.

ISSUE IN DISPUTE

8According to the Case Conference Order, the sole issue in dispute is:

i. What is the amount of IRB that the applicant is entitled to for the period of November 8, 2017 to date and ongoing?

RESULT

9The applicant is not entitled to an IRB in excess of the statutory maximum of $400 per week from one-week post-disability to November 8, 2019.

10The applicant is not entitled to an IRB for an amount in excess of $16 per week from November 9, 2019 (being the second anniversary of the day the applicant began receiving IRB payments) and ongoing.

ANALYSIS

Certas’ initial IRB calculation is correct

11To begin, s. 6(2)(a) of the Schedule states that an insurer is not required to pay an IRB for the first week of the disability. Here, it is undisputed that Certas began paying IRBs to the applicant after the first week waiting period following the accident, being November 9, 2017. Certas further submits that despite not having received the completed OCF-3 until November 30, 2017, it still paid the applicant IRBs after the first week of his involvement in the accident. The applicant did not provide any authority for his position that the severity of his condition somehow entitles him to payment of an IRB for the first week post-accident. Accordingly, I find Certas began remitting IRB payment at the appropriate time and the applicant is not entitled to retroactive payment for this one-week period.

12Next, s. 7(1) of the Schedule provides for the calculation of the quantum of the IRB to an insured who becomes entitled to the benefit before their 65th birthday. The IRB calculation is the lesser of “A” and “B”. Under s. 7(1), “A” is defined as the weekly base amount determined under s. 7(2), less the total of all other income replacement assistance, if any, for the particular week the benefit is payable; whereas “B” is $400 or, if optional IRB has been purchased and applies, the amount fixed by the optional benefit. In this vein, it is well-settled that an IRB is “capped” at a maximum amount of $400 per week unless an insured purchases optional benefits. The applicant provided no authority otherwise.

13Here, Certas calculated the applicant’s quantum of IRB based on the OCF-2 he submitted, which indicated gross income of $655.50, $902.75, $970.60 and $207 earned in the last four weeks before the accident. Under s. 7(1), a calculation under option “A” would have resulted in an amount greater than the statutory maximum of $400 per week, being $478.77 per week, which is 70% of the applicant’s gross weekly pre-accident income (being $683.96 x 70%). As the applicant did not purchase optional benefits, the maximum amount payable under option “B”, being $400, is less than the amount under “A”, being $478.77, and was therefore properly calculated by Certas.

14As an aside, I note that both the four week and 52-week calculation boxes in Part 3 of the OCF-2 were checked off. I suspect that this may explain the applicant’s position that his yearly gross income of $3,540.85 should be used to calculate his IRB. However, using the $3,540.85 total—rather than the four weeks pre-accident—when he only worked for five of the 52 weeks pre-accident due to a work-related injury absence would have actually resulted in a lower quantum.

15In any case, I agree with Certas that the applicant’s calculation of IRB quantum is incorrect and not in keeping with the calculation and terms intended under s. 4 or s. 7(1) and, even if it were the proper calculation, it still exceeds the statutory maximum of $400 per week and would not be payable by Certas. Accordingly, I find that the applicant is not entitled to either a higher IRB quantum or a retroactive payment of the higher IRB amount he claims, as it is not supported by the Schedule.

Certas’ calculation of the “ramp down” IRB quantum is correct

16Section 8(1) of the Schedule states that if an insured is receiving an IRB immediately before their 65th birthday, the weekly amount of the benefit is adjusted on the later of the day of the person’s 65th birthday or the second anniversary of the day the person began receiving the IRB. This “ramp down” IRB amount is determined in accordance with the formula provided in s. 8(1), being: C x 0.02 x D, in which “C” is the IRB before deducting post-accident income and “D” is the lesser of 35 and the number of years during which the applicant qualified for IRBs before the adjustment is made.

17Here, it is undisputed that the applicant turned 65 on March 18, 2019 while he was receiving IRB payments. On October 29, 2019, Certas notified the applicant of its IRB adjustment or “ramp down” calculation, and that it would be effective November 9, 2019, being the second anniversary of the day his entitlement to the IRB began. The s. 8(1) formula of C x 0.02 x D was applied as follows: $400 (the weekly amount of IRB the applicant was entitled to receive immediately before age 65) x 0.02 x 2 (being the number of years the applicant qualified for IRB before turning 65) for a total “ramp down” IRB quantum of $16 per week. I find Certas’ use of 2 in place of “D” in its calculation was appropriate, as 2 is less than 35 and was the later of the applicant’s 65th birthday and the second anniversary of his IRB entitlement.

18Finally, there is no dispute that Certas continues to pay the applicant the $16 “ramp down” IRB amount to date. Accordingly, I find that the applicant is not entitled to a different “ramp down” IRB quantum, either retroactively or ongoing, as it is not supported by the Schedule.

The applicant’s remaining claims are dismissed

19The applicant made submissions regarding a constitutional question, invoking the Canadian Charter of Rights and Freedoms. Amongst other things, the applicant submits that Certas was in non-compliance with s. 280(2) of the Schedule, that s. 8 and s. 15 of the Charter “overrule” the Schedule and that Certas is not allowed to calculate an IRB in accordance with ss. 4(2)1, 7(2)1 and 8(1), as it would be “prejudicial to the claimants rights,” pursuant to s. 8 of the Charter.

20Section 109(1) of the Courts of Justice Act and Rule 11 of the Tribunal’s Common Rules of Practice and Procedure require that a notice of constitutional question shall be served on the Attorney General if the constitutional validity or constitutional applicability of an Act, Legislature or Regulation or by-law made under an Act or of a rule of common law is in question and/or if a remedy is claimed under s. 24(1) of the Charter in relation to an act or omission of the Government. Further, a Notice of Constitutional Question should be delivered as soon as circumstances requiring the notice become known and, in any event, at least 15 days before the question is to be argued.

21Certas submits, and I agree, that there is no constitutional issue engaged in this very narrow dispute and the provisions identified by the applicant under the Schedule do not contravene the Charter. Regardless, the applicant did not direct the Tribunal to any evidence that a notice was delivered to Certas, the Tribunal, or the Attorney General, as required by s. 109 of the Courts of Justice Act and Rule 11 of the Common Rules. Therefore, the constitutional question and issues alleged by the applicant in his submissions are not properly before the parties.

22Finally, the applicant made submissions for additional claims related to dental treatment, physiotherapy and orthotics. According to Certas, none of these issues were raised at the case conference. On review, I find that none of these issues were identified as issues properly in dispute in the Case Conference Report and Order of the Tribunal dated June 22, 2020 that gave rise to this written hearing. Accordingly, as these issues were not properly identified as part of the application and have not proceeded through the Tribunal’s dispute resolution process, I find they are not properly before the Tribunal. Therefore, it would be improper to consider additional issues at this stage.

ORDER

23The applicant is not entitled to an IRB in excess of the statutory maximum of $400 per week from one-week post-disability to November 8, 2019. The applicant is not entitled to an IRB for an amount in excess of $16 per week from November 9, 2019 and ongoing. The applicant’s remaining claims are dismissed.

Footnotes

1. 1O. Reg. 34/10, as amended.