Released Date: 07/07/2021
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:
D.S.
Applicant
and
Certas Home and Auto Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Frank E. McNally, Counsel
For the Respondent: Jennifer Griffiths, Counsel Jonathan White, Counsel
HEARD: By way of written submissions
OVERVIEW
1D.S., (“the Applicant”), was injured in an automobile accident on May 11, 2016 and sought benefits from the respondent pursuant to O. Reg. 34/10: Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
2Certas Home and Auto Insurance Company, (“the Respondent”), refused to pay non-earner benefits (NEBs) to the Applicant. The Applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
3In response, the Respondent raised a preliminary issue asserting the applicant is barred from bringing the application because he failed to submit a completed Disability Certificate (“OCF-3”) confirming disability.
ISSUE
4The preliminary issue in dispute, according to the Order, is:
- Is the applicant barred from proceeding with his claim for NEBs because he failed to submit a completed OCF-3 confirming disability, pursuant to the Schedule?
RESULT
5The Applicant submitted a completed OCF-3. He is not barred from proceeding with his claim for NEBs.
BACKGROUND
6The Applicant was struck by a car. He was 13 at the time of the accident and enrolled in full-time elementary school. On June 23, 2016, after receiving his application for accident benefits, the Respondent advised the Applicant that NEBs are not payable for anyone younger than 16 years old and that it would assess NEB eligibility at or near his 16th birthday.
7On or around August 17, 2016, the Applicant submitted an OCF-3 of the same date, signed by Dr. E. Cucan, family physician. Notably, Dr. Cucan checked “no” where the form asked if the Applicant suffered a complete inability to carry on a normal life. By doing so, Dr. Cucan effectively gave an opinion that the Applicant failed to meet the test for NEBs.
8The Respondent denied NEBs by letter dated April 12, 2018 because, according to its interpretation of the August 17, 2016 OCF-3, the Applicant did not qualify for the benefit. The Applicant filed an Application on April 14, 2020, disputing this denial of NEBs.
9In response, the Respondent submits that it has not received confirmation of a complete inability to carry on a normal life within 104 weeks of the accident. The Respondent’s position was clarified at the Case Conference to the preliminary issue in dispute for this hearing.
ANALYSIS
10The crux of this dispute is whether I find that the OCF-3 signed by Dr. Cucan, dated August 17, 2016, constitutes a “completed disability certificate”, pursuant to section 36(2) and 36(3) of the Schedule.
11Section 36(2) of the Schedule specifies that “an applicant for a specified benefit shall submit a completed disability certificate with his or her application under section 32.” Section 36(3) states “An applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted”. Section 55(1) provides that the Applicant shall not apply to the Tribunal if he “has not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted an application for the benefit within the times prescribed by (the Schedule).”
12The respondent takes the position that the August 17, 2016 OCF-3 is not “complete” because it is dispositive for NEBs. The Applicant disagrees and submits the disability certificate is complete, despite Dr. Cucan’s negative answer to the NEB test. I agree with the Applicant.
S. M. and Aviva
13The Respondent submits that the Applicant’s case is analogous with S.M. and Aviva Insurance Company of Canada (“S.M.”