Habte v. Aviva General Insurance Company, 2021 CanLII 43551

Citation: Habte v. Aviva General Insurance Company, 2021 ONLAT 19-008941/AABS-PI

Released Date: 05/20/2021

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8, in relation to statutory accident benefits.

Between:

Azeb Habte

Applicant

and

Aviva General Insurance Company

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Rajwant Bamel, Counsel

For the Respondent:

Hyla Korn, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1The applicant, Azeb Habte, was injured in an automobile accident on August 7, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Aviva General Insurance Company, the respondent.

2On August 2, 2019, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to determine, among other issues, her entitlement to weekly non-earner benefits (“NEBs”).

3At the case conference held on September 24, 2020, the respondent raised a preliminary issue. The respondent submitted that, pursuant to sections 12(3)(c), 36(2) and 36(3) of the Schedule, the applicant was statute-barred from proceeding with her claim to the Tribunal for NEBs because she failed to submit a Disability Certificate (“OCF-3”) within 104 weeks of the accident. As a result, a written preliminary issue hearing was scheduled.

PRELIMINARY ISSUE

4The following preliminary issue is to be decided:

(i) Is the applicant statute-barred as a result of sections 12(3)(c), 36(2) and 36(3) of the Schedule from pursuing her claim for NEBs to the Tribunal for failing to submit an OCF-3 within 104 weeks of the accident?

RESULT OF PRELIMINARY ISSUE

5The applicant’s claim for NEBs is dismissed as it is statute-barred under s. 36(2), s. 36(3) and s. 12(3)(c) of the Schedule.

ANALYSIS

6Section 12(1)1 of the Schedule provides that an insurer shall pay for NEBs to an insured person 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.

7Section 36 outlines the process for claiming a NEB. Section 36(2) states that an insured person must submit a completed OCF-3 with their application for a specified benefit pursuant to s. 32. Section 36(3) also sets out the entitlement period for the NEB once the completed OCF-3 is received: essentially, an insured person who fails to submit a completed OCF-3 is not entitled to a NEB for any period before the completed OCF-3 is submitted.

8The parties do not dispute the following facts in this matter:

(i) On November 16, 2017, the respondent sent the applicant an initial benefits package including an Application for Accident Benefits (“OCF-1”);

(ii) On November 22, 2017, applicant’s Counsel sent the respondent the applicant’s completed OCF-1 and advised that the applicant’s health professional would send an OCF-3 directly to the respondent. The applicant’s Counsel’s letter also asked the respondent to “advise if you are not in receipt of same;”²

(iii) On November 29, 2017, the respondent wrote the applicant, and copied her Counsel, advising that:

(a) it had received her completed OCF-1; and

(b) it had not received an OCF-3 and, as a result, NEBs were not payable. The respondent also enclosed a blank OCF-3 for completion;³ and

(iv) The applicant’s case conference summary, which included a completed OCF-3 dated October 10, 2018, was provided to the respondent on May 6, 2020.⁴

9The respondent submitted that it first received the October 10, 2018 OCF-3 on May 6, 2020 as part of the applicant’s case conference summary and no other OCF-3 had been received prior to that time. The respondent’s position is that submission of the October 10, 2018 OCF-3, some 39 weeks after the 104-week post-accident period expired, bars the applicant from proceeding with her claim for NEBs.

10The applicant took issue with the timing of the respondent raising its position regarding her claim for NEBs, as she submitted that she was only made aware of this preliminary issue at the case conference. In any event, the applicant submitted that the October 10, 2018 OCF-3 was provided directly to the respondent by HealthMax Physiotherapy Clinics (“HealthMax”), the applicant’s treating clinic, on the same day – October 10, 2018.⁵ Alternatively, the applicant submits that:

(i) The respondent had multiple opportunities to request an OCF-3 from the applicant but failed to do so; and/or

(ii) Pursuant to D.W. v. The Co-operators,⁶ the applicant’s failure to submit an OCF-3 within 104 weeks after the accident does not preclude her from claiming entitlement to NEBs because the only temporal restriction on the Tribunal’s analysis is that it must determine that “within 104 weeks after the accident” the applicant suffered a substantial inability to, in that case, perform the essential tasks of the pre-accident employment.⁷

11I find that that the applicant has not met her burden of proving, on a balance of probabilities, that the October 10, 2018 OCF-3 was submitted to the respondent on October 10, 2018 or on any other day prior to May 6, 2020.

12The only evidence submitted by the applicant to support her position that the October 10, 2018 OCF-3 was submitted to the respondent on October 10, 2018 is a November 13, 2020 letter from HealthMax. This letter stated:

Further to our previous conversation with your office[,] please note that our clinic is paperless…Upon review of the file[,] I was unable to locate a fax confirmation confirming that the OCF-3 was submitted to the patient’s adjuster.⁸

13I find that this letter does not state that the OCF-3 was faxed to the respondent on October 10, 2018 or on any other day. I also agree with the respondent that the failure of HealthMax to submit an invoice for completion of the October 10, 2018 OCF-3 is additional evidence that the OCF-3 was not completed and submitted to the respondent on October 10, 2018 as suggested by the applicant.

14As the applicant has failed to submit any other evidence that the October 10, 2018 OCF-3 was provided to the respondent on any other day within 104 weeks of the accident, I find that the October 10, 2018 OCF-3 was not submitted to the respondent until May 6, 2020 as part of the applicant’s case conference summary.

15I am also not persuaded by the applicant taking issue with the timeliness of the respondent raising the preliminary issue to arrive at any other conclusion. I find that that respondent made the applicant aware that it had not received a completed OCF-3, as originally requested by applicant’s Counsel, by way of its November 29, 2017 correspondence. Further, there is no other evidence that would support the applicant’s position that she believed that an OCF-3 had in fact been filed with the respondent within 104 weeks of the accident. For example, there are no insurer examination assessment reports before me regarding the applicant’s entitlement to NEBs, no confirmation letter from the respondent has been filed that acknowledges receipt of an OCF-3 (as it had done acknowledging receipt of the applicant’s OCF-1) and no NEBs have been paid.

16I also do not agree with the applicant that D.W. v. The Co-operators applies in this matter as it is distinguishable on the facts. In that matter, the applicant had submitted a completed OCF-3 within 104 weeks of the accident despite it not supporting the applicant’s entitlement to income replacement benefits.⁹ Here, there was no completed application by the applicant within 104 weeks post-accident as I found that the one and only OCF-3 in this matter was not submitted to the respondent until May 6, 2020, which is after the expiry of the 104-week post-accident period.

17The respondent also submitted and relied upon the decision of K.A. v. Intact Insurance Company.¹⁰ In that decision, the Tribunal followed the binding Superior Court decision in Volpe v. Co-operators Gen. Ins. Co. and found:¹¹

[Section] 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. 12.¹²

18I find the decision in K.A. v. Intact persuasive and agree with the Tribunal’s conclusion in that decision that the language in s. 36 is compulsory and there are no exceptions to it set out in the Schedule. Accordingly, I find that the applicant is statute-barred from proceeding with her NEB claim under s. 12(3)(c) due to her failure to submit an OCF-3 within 104 weeks of the accident to the respondent as required by sections 36(2) and (3) of the Schedule.

COSTS

19In the written submissions, both parties requested to add the issue of whether costs of this preliminary issue hearing could be recovered as a result of the opposing party acting unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”). The respondent did not specify the amount of costs that it was seeking whereas the applicant sought her costs of this preliminary proceeding in the amount of $1,000.00.

20I find that costs are not appropriate at the preliminary stage, as the parties will be proceeding to a substantive issue hearing and costs are more appropriately dealt with by the hearing adjudicator.

ORDER

21The applicant’s claim for NEBs is dismissed as it is statute-barred under s. 36(2), s. 36(3) and s. 12(3)(c) of the Schedule.

OTHER PROCEDURAL ISSUES

22Pursuant to the Tribunal’s September 24, 2020 Case Conference Report and Order, the parties shall contact the Tribunal to schedule a resumption of the case conference within 30 days of this preliminary issue decision being released.

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 2Preliminary Issue Hearing Submissions of the Respondent, Tab 2.
3. 3Preliminary Issue Hearing Submissions of the Respondent, Tab 3.
4. 4Preliminary Issue Hearing Submissions of the Respondent, paras. 10-11 and Preliminary Issue Hearing: Responding Submissions of the Applicant, para. 12.
5. 5Preliminary Issue Hearing: Responding Submissions of the Applicant, para. 17.
6. 62018 CanLII 8092 (ON LAT Reconsideration Decision).
7. 7Ibid. at para 18.
8. 8Preliminary Issue Hearing: Responding Submissions of the Applicant, Tab 4.
9. 9Supra note 6 at para. 8.
10. 102020 CanLII 94779 (ON LAT) (“K.A. v. Intact”).
11. 112017 ONSC 261 at para. 55.
12. 12Supra note 10 at para. 11.