Citation: Smith v. Intact Insurance Company, 2021 ONLAT 19-014019/AABS

Release date: 2021/03/10

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:

Moreen Smith

Applicant

and

Intact Insurance Company

Respondent

PRELIMINARY ISSUSE DECISION AND ORDER

VICE-CHAIR:

D. Gregory Flude

APPEARANCES:

For the Applicant:

Gordon Harris, Counsel

For the Respondent:

Leanne Zawadzki, Counsel

HEARD:

by way of written submissions

OVERVIEW

1Moreen Smith was involved in a motor vehicle accident on November 10, 2017. She has applied to the Licence Appeal Tribunal (“Tribunal”) on December 18, 2019 to determine her entitlement to benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 O. Reg 34/10 (the “Schedule”).

2The respondent, Intact Insurance Company (“Intact”), has brought a preliminary issue motion for an order staying Ms. Smith’s claim for an income replacement benefit (“IRB”). Intact submits that Ms. Smith has failed to comply with the necessary procedural steps to make a claim for an IRB. Notably, she is required to file two mandatory forms, an Application for Accident Benefits designated as an OCF-1 and a Disability Certificate, designated as an OCF-3. Intact takes the position that Ms. Smith has failed to submit an OCF-3 prior to applying to the Tribunal. Ms. Smith submits that she did file the form prior to applying to the Tribunal and it was mislaid by Intact.

3I find that Ms. Smith did not file the OCF-3 before commencing a proceeding before the Tribunal. As a result of her failure to comply with the requirements of the Schedule, she cannot apply to the Tribunal for the relief she seeks until she satisfies the requirements of the Schedule and has received a denial from Intact.

The PRELIMINARY ISSUE in dispute

4The preliminary issue in dispute was agreed to as follows:

1. Is the applicant barred from proceeding with her claim for income replacement benefits because she failed to submit an OCF-3 as of May 28, 2020?

LEGISLATIVE FRAMEWORK

5The right to apply to the Tribunal for dispute resolution is set out in s. 280 of the Insurance Act, R.S.O 1990 c. I.8 (the “Act”). That section gives Ms. Smith the right to apply to the Tribunal “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.” Intact submits that, at the time of the filing of the current application, there was no dispute over entitlement to an IRB because Ms. Smith had not applied for an IRB in accordance with the Schedule.

6The Schedule is a regulation passed pursuant to the Act, that establishes the legislative framework for no-fault accidents benefits claims. When it comes to making a claim for a “specified benefit,” which term includes an IRB, the Schedule required Ms. Smith to file an OCF-1 and an OCF-3 within 7 days of the accident (ss. 32(1) and 36(2) of the Schedule). By virtue of s. 36(3) “An applicant who fails to submit a completed [OCF-3] is not entitled to a specified benefit for any period before the completed disability certificate is submitted.”

7Section 34 relieves Ms. Smith of the dire consequences of late filing. It states: “A person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.”

When Did Ms. Smith Submit an OCF-3 to Intact?

8The minimum legislative requirement for triggering entitlement to an IRB is the filing of an OCF-1 and an OCF-3. It is agreed that Ms. Smith submitted an OCF-1 shortly after the accident but there is a dispute over when she submitted an OCF-3. Ms. Smith points to an OCF-3 in the files of her treatment provider, Grand River Physiotherapy (“Grand River”), dated December 13, 2017. The document has a handwritten note on top stating “faxed December 13, 2017.” There is no fax transmission sheet, nor a printout of faxes sent on that date from the machine’s memory log. Ms. Smith submits that this document establishes, on a balance of probabilities, that Grand River sent the fax to Intact on that date and that Intact must have lost it after receipt.

9Intact denies receiving the Grand River OCF-3 on December 13, 2017. It points to correspondence sent to Ms. Smith addressing the fact that it had not received an OCF-3.

10Intact received the OCF-1 on December 11, 2017, that is 4½ weeks post-accident. On December 18, 2017 it wrote to Ms. Smith stating:

A review of your claim indicates that you may be entitled to the following specified benefits:

Income Replacement Benefit

Please note, however, that we have not yet received a Disability Certificate (OCF-3) completed on your behalf by your physician or treating health practitioner.

Without a completed OCF-3, we are unable to determine your potential entitlement to any of the benefits noted above.

11In and around early February 2018, approximately 13½ weeks post-accident, Ms. Smith retained counsel. Counsel wrote Intact on February 12 asking for a CD of its complete “AB file.” Nothing further was heard from counsel so, on May 24, 2018, Intact wrote to Ms. Smith with a copy to counsel stating:

This is correspondence as to the status of your Accident Benefits claim which has become dormant.

As your file has been held in extended abeyance, we wish to confirm that you have five (5) years from the date of loss in which to claim benefits directly related to your motor vehicle accident.

If at any future point in time your health practitioners recommend additional treatment for accident related injuries, you need only notify us in advance, and we will be pleased to review your claim at that time.

12Intact sent Ms. Smith a report approximately every 2 months from January 2018 onwards outlining services provided by Grand River. Each of those letters had the sentence: “It's important to us that you receive all of the benefits that you are entitled to.” While I recognize that the letters are form letters, for a period of two years or so, the wording invites Ms. Smith to consider if she is getting all of the benefits to which she may be entitled.

13Ms. Smith points to a Grand River invoice paid by Intact on September 20, 2018 but relating to services provided in December 2017. One entry states “MVA Dis. Cert.” and the amount is $42.50. In Ms. Smith’s submission, payment of this invoice supports her position that Intact had received the OCF-3 in and around December 13, 2017. I note, however, that the date of the service noted on the invoice is December 11, 2017, that is, the date that the OCF-1 was prepared and submitted to Intact. I also note that the OCF-3 was not dated until December 13, so it is more likely than not that this entry relates to the preparation of the OCF-1 and not the OCF-3.

14Ms. Smith also points to a comment in the report of Intact’s assessor, Dr. Khaled, dated March 26, 2018 to indicate that Intact had provided Dr. Khaled with Grand River’s records, which records, she submits, include the OCF-3 in dispute. The reference is on page 6 of Dr. Khaled’s report in a schedule setting out what documents he reviewed in preparing his report. Intact disputes this position and has provided reply evidence showing exactly what was sent to Dr. Khaled. It appears from Intact’s records that, prior to November 25, 2019, Intact had a Treatment Confirmation Form (OCF-23) and a Treatment and Assessment Plan (OCF-18) prepared by Grand River. There is also a pre-accident report to Ms. Smith’s family doctor, Dr. Norrie, detailing musculoskeletal pain from an earlier accident and proposing treatment.

15While it is clear that Dr. Khaled did review records from Grand River, I can find no evidence that those records were as extensive as Ms. Smith would suggest.

16There is general agreement that the OCF-3 was part of the disclosure of the Grand River file to Intact on November 25, 2019. She filed her application with the Tribunal on December 18, 2019. The Application for Dispute Resolution seeks an IRB from December 10, 2017. Intact’s Response received on January 24, 2020 alleges that the failure to submit an OCF-3 with her OCF-1 disentitles Ms. Smith to the IRB. Intact also submits that Ms. Smith did not submit an OCF-3 in accordance with the Schedule until May 28, 2020, approximately 2½ years after the accident.

17I find that Ms. Smith did not submit an OCF-3 at any time before November 25, 2019. Her submissions in support of her contention that she did take several disparate events and relate them in a forced manner to conclude that on a balance of probabilities Intact had received the OCF-3 earlier than November 25, 2019.

18In itself, the handwritten notation on the OCF-3 in Grand River’s file that it was faxed on December 13, 2017 proves nothing. From the first days of the electronic transmission of documents, fax cover sheets showing the date of transmission, the number of pages and the number to which the fax was sent were essential to proving a document was sent by fax. The technology is not new and fax machines and their ability to keep transmission logs have only improved. A notation “Faxed Dec 13/17” provides none of the essential detail.

19Section 64(19) of the Schedule codifies the consideration discussed above. It sets the following requirements for submitting documents by fax:

(19) A document that is delivered by fax must include a cover page indicating,

(a) the sender’s name, address and telephone number;

(b) the name of the person for whom the document is intended;

(c) the date of the accident to which the document relates;

(d) the name, address and telephone number of the person to whom the document relates;

(e) the date and time the fax is sent;

(f) the total number of pages faxed, including the cover page;

(g) the telephone number from which the document is faxed; and

(h) the name and telephone number of a person to contact in the event of transmission problems with the fax.

20I find that the reference in Intact’s payment summary of an “MVA Dis Cert.” for a service provided prior to date of the creation of the OCF-3 does not add support to Ms. Smith’s position. Nor does the reference in Dr. Khaled’s assessment complete the picture as Ms. Smith would assert. In adding these factors together, she has come to a total greater than their sum.

21Her interpretation of these various facts also does not accord with the other documents. She was aware that her file was put in abeyance in May 2018. If she was expecting to be paid an IRB, her inaction following receipt of the May 2018 letter combined with the December 18, 2017 letter from Intact requesting an OCF-3 makes no sense. Whether she was adequately represented by counsel or not, when the cheques failed to arrive as expected that should have triggered a response.

22A question remains about proper submission of the OCF-3. Is it proper submission to include it in a bundle of clinical notes and records without drawing it to Intact’s attention as it appears she did on November 25, 2019, or was she required to formally submit it as she did on May 28, 2020 or, at the very minimum, point it out to Intact and advise them that this was submission in support of her claim? The answer to these questions will determine if Ms. Smith made her claim for an IRB prior to commencing her application to the Tribunal on December 18, 2019 or after.

23In my view, submission requires more than delivery of a bundle of documents to Intact with the OCF-3 included somewhere. It is clear from s. 36(2) that the Schedule contemplates submission of an OCF-1 and an OCF-3 shortly after an accident as a discrete package. I acknowledge that practical problems may mean they are not submitted together, but that does not mean that they need not be submitted in an identifiable format, rather than included in a bundle of documents delivered for another purpose entirely.

24By including the document in the Grand River documents, a bundle exceeding 120 pages, Ms. Smith has left her intentions ambivalent. Even if Intact reviewed the OCF-3 dated December 13, 2017 when it received the bundle, it would be entitled to conclude that she had decided not to pursue payment of that benefit. Such a conclusion would accord with her failure to respond to either the December 18, 2017 letter requesting an OCF-3 or the May 2018 letter putting her file in abeyance. Simply put, the inclusion of the OCF-3 in the bundle did not require Intact to question her intentions further.

25I find that Ms. Smith did not complete her application for an IRB until May 28, 2020.

Impact of the Late Filing

26The impact of her failure to file until May 28, 2020 is that there was no IRB dispute between the parties when she filed her Application by an Injured Person for Dispute Resolution under the Insurance Act with the Tribunal on December 18, 2019.

27There a several cases that are almost directly on point that Intact relies on in support of its position. In JV v TD Insurance Meloche Monnex, 2019 CanLII 110091 (ON LAT), C.G. v Pembridge Insurance Company, 2020 CanLII 51276 (ON LAT) and S.B. v Allstate Insurance, 2019 CanLII 119725 (ON LAT) the Tribunal has clearly delineated a doctrine that a proceeding for an IRB cannot be brought to the Tribunal where the applicant has failed to meet the legislative requirements to file both an OCF-1 and an OCF-3. To put it very simply, the right to appeal to the Tribunal set out in s. 280 of the Act requires there to be a dispute over entitlement to benefits. There can be no dispute over entitlement where there is no application for the benefit. An application to the Tribunal in such cases is premature.

Hearing Format

28In her written submissions, Ms. Smith argued that this motion should not proceed in writing as there were credibility issues that could only be addressed by examination and cross-examination of witnesses. Intact disagrees and points to the fact the Ms. Smith agreed to a written hearing at the case conference on May 28, 2020. While conceding that on occasion written hearings may need to be converted to hearings with oral testimony to fully canvass the issues, I find that this is not such a case.

29This case largely turns on documents and the interpretation to be put on those documents and inferences drawn from them. The fact that key documents may invite different inferences does not elevate a consideration of the documents into a question of credibility. In reviewing the documents and the submissions of the parties, I did not find myself hampered by a lack of oral testimony and I question how it could have helped me arrive at my conclusions.

ORDER

30Based on the above, I dismiss Ms. Smith’s claim for an income replacement benefit on the grounds that it was premature to bring it before there had been a completed application and a denial.