Citation: Boateng v. Allstate Insurance Company of Canada, 2021 ONLAT 19-014193/AABS – PI

Release date: 04/30/2021

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:

Joseph Boateng

Applicant

and

Allstate Insurance Company of Canada

Respondent

PRELIMINARY ISSUE DECISION AND ORDER

ADJUDICATOR:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Tina Lubman, Counsel

For the Respondent:

Sophia Chaudri, Counsel

HEARD:

By way of written submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant, Joseph Boateng, was involved in an automobile accident on February 27, 2019, and sought benefits from the respondent, Allstate Insurance Company of Canada, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the “Schedule”). The respondent denied the applicant certain benefits and he applied to the Licence Appeal Tribunal (“Tribunal”) for resolution of the dispute.

2The respondent raises a preliminary issue in relation to the applicant’s claim for a non-earner benefit. If the respondent’s position on the preliminary issue is correct, the applicant will be barred from proceeding with his non-earner benefit claim and the Tribunal will proceed to hear the remaining substantive issues in dispute. If the applicant’s position is correct, the non-earner benefit claim will be heard together with the other issues.

PRELIMINARY ISSUE

3The preliminary issue to be decided is:

i. Is the applicant barred from proceeding with his claim for a non-earner benefit as he failed to submit an OCF-10 for the benefit?

RESULT

4The applicant is barred from proceeding with his claim for a non-earner benefit because he failed to submit an Election of Income Replacement, Non-Earner or Caregiver Benefit form (OCF-10). The application shall proceed to a hearing on the remaining substantive issues in dispute.

ANALYSIS

5Section 35(1) of the Schedule provides:

If an application indicates that the applicant may qualify for two or more of the income replacement benefit, the non-earner benefit and the caregiver benefit under Part II, the insurer shall, within 10 business days after receiving the application, give a notice to the applicant advising the applicant that he or she must elect, within 30 days after receiving the notice, the benefit he or she wishes to receive. [Emphasis added.]

6After the accident, the applicant filed an Application for Accident Benefits (OCF-1). The form indicated that the applicant was unable to return to his normal activities following the accident. It also indicated that he was employed at the time of the accident and had since returned to work. The form was not accompanied by a Disability Certificate (OCF-3) – a requirement for an application for a weekly “specified benefit” (income replacement benefit, non-earner benefit, caregiver benefit or payment for housekeeping or home maintenance) under s. 36(2) of the Schedule.

7In a letter to the applicant dated April 4, 2019, the respondent acknowledged receipt of the OCF-1 and informed the applicant of his obligation to complete an OCF-10 electing the weekly benefit he wished to receive, as his OCF-1 suggested that he may qualify for either an income replacement benefit or a non-earner benefit. The letter also requested that the applicant submit the required OCF-3.

8The applicant then submitted an OCF-3, dated March 29, 2019. This OCF-3 indicated that the applicant met the disability tests for both an income replacement benefit and a non-earner benefit.

9The respondent sent the applicant an Explanation of Benefits dated April 8, 2019. It indicated that the applicant was not eligible for an income replacement benefit as he had indicated that his injuries had not prevented his return to work, but that he may become eligible if he could not continue his duties. The Explanation of Benefits also stated, “It appears that you may be eligible for more than one Specified Benefit (Income Replacement Benefit, Non-Earner Benefit and/or Caregiver Benefit)” and prompted the applicant to completed the enclosed OCF-10 specifying his election of benefit type.

10The respondent again requested an election from the applicant in a June 12, 2019 Explanation of Benefits.

11There is no dispute that to date the applicant has not submitted an OCF-10 indicating his election.

12The applicant submits that he was not required to complete an OCF-10 to apply for a non-earner benefit; all the Schedule required him to do was to submit an OCF-1 and an OCF-3, which he did. He submits that pursuant to s. 36(4) of the Schedule, the respondent then had an obligation to pay him a non-earner benefit, give notice of the reasons it did not believe he was entitled or request an Insurer’s Examination to determine entitlement, or send the applicant a request under s. 33. He submits that his application was “complete.”

13The respondent submits that where information provided by an insured indicates possible entitlement to two or more specified benefits, s. 35 of the Schedule triggers the insurer’s duty to notify the person of the obligation to elect benefits. The respondent submits that in these circumstances, a completed OCF-10 is required for an application to be considered “complete” for the purpose of triggering the obligations set out in s. 36(4).

14I agree with the respondent that in circumstances where an application indicates possible entitlement to more than one specified benefit, more is required than an OCF-1 and an OCF-3 to “complete” the application for benefits: an OCF-10 is also required. The provisions of the Schedule must be read harmoniously. To accept the applicant’s submission that an OCF-10 is not required would render s. 35 meaningless. Additional support for the respondent’s position is found in the language of s. 36(4) itself: an insurer can only pay “the specified benefit” once it has been specified. The Schedule is clear that the obligation to elect a specified benefit, where an election is necessary, rests with the applicant.

15I also agree with the respondent and find as a fact that the documents the applicant submitted in support of his claim created ambiguity as to which specified benefit – an income replacement or non-earner benefit – he might be entitled to. The ambiguity lay in the OCF-1’s indication that he had returned to work, on the one hand, and on the other, that his injuries prevented him from returning to his normal activities following the accident. The statements are contradictory, and absent clarification, it was impossible for the respondent to properly determine which benefit the applicant was applying for.

16The applicant relies on two decisions in which this Tribunal held that an OCF-10 election form was not required to complete an application for weekly benefits: J.G. v. Co-operators² and M.K. v. TD General Insurance Company.³ Both of these cases are distinguishable from the present one because they involved no ambiguity as to the applicant’s entitlement to a specified benefit. In other words, s. 35 of the Schedule was not engaged. In both cases, it was clear that the applicant met the two-pronged test for entitlement to an income replacement benefit and was, under s. 12 of the Schedule, not entitled to a non-earner benefit. It was possible for the insurer to begin adjusting the claim for a weekly benefit based on the information provided. In both cases, the application was already “complete.”

17The applicant submits that the Explanations of Benefits dated April 8, 2019 and June 12, 2019 were unclear as to whether he was entitled to two or more benefits: they stated the applicant was not entitled to an income replacement benefit based on his indication that he has returned to work. It logically follows, the applicant submits, that he was only entitled to a non-earner benefit, and that an election was unnecessary. He also submits that he did not elect because it was impossible to foresee the development of his injuries and, because an election is irrevocable in the case of non-catastrophic impairment, it would be prejudicial to him to elect.

18I do not find the applicant’s reasons for failing to elect compelling. It is true that the April 8 and June 12, 2019 Explanations of Benefits stated, based on the applicant’s indication that he had returned to work, that the applicant was not entitled to an income replacement benefit. But they also clearly stated that if the applicant’s circumstances changed, he may be entitled to apply for an income replacement benefit, and that he may be entitled to more than one specified benefit. On the requirement to elect, the respondent’s correspondence was clear. It provided information to assist the applicant with this step in the process. The language in s. 35 is clear and mandatory. It is the insurer’s duty to give notice of the election requirement. The duty to make the election rests squarely with the applicant.

19The duty the Schedule imposes on insured persons to respond to an insurer’s Notice of Election within 30 days is not an onerous requirement. It is not open to an applicant to forego an election because he believes it to be prejudicial or against his interest and still pursue a specified benefit claim.

20The applicant failed to complete his application for a specified benefit by making the required election. Since he has yet to properly apply for a non-earner benefit, the respondent has not had an opportunity to properly adjust the claim and to pay or deny the benefit. There exists, therefore, no dispute over this benefit. The Tribunal lacks jurisdiction under s. 280 of the Insurance Act⁴ to adjudicate a claim over which there is properly no dispute. The applicant is therefore barred from proceeding before the Tribunal with his claim for a non-earner benefit.

CONCLUSION AND ORDER

21The applicant is barred from proceeding with his claim for a non-earner benefit as no dispute over the benefit properly exists. The matter shall proceed to a hearing of the remaining substantive issues in dispute.

22The parties shall contact the Tribunal within 30 days of the release of this preliminary issue decision to request a resumption of the case conference. The resumption will focus on exploring settlement and/or procedural arrangements for the substantive issues hearing.

23If the parties resolve the issues in dispute, they shall notify the Tribunal in writing immediately.

Footnotes

1. 1O. Reg. 34/10.
2. 22019 ONLAT 18-012430/AABS at para. 21.
3. 32020 ONLAT 19-003616/AABS at para. 26.
4. 4RSO 1990, c. I.8.