Licence Appeal Tribunal File Number: 20-008673/AABS
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:
Victoria Valentine
Applicant
and
AIG Insurance
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Lianne Sharvit, Counsel
For the Respondent:
Ken Yip, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was involved in an automobile accident on December 5, 2017 and sought various benefits from the respondent, AIG, including a non-earner benefit (“NEB”), pursuant to the Statutory Accident Benefits Schedule – effective September 1, 20101 (the “Schedule”). At the time of the accident, V.V. was a student.
2On December 17, 2017, AIG provided V.V. with an application package, including a blank application for accident benefits and a blank disability certificate (“OCF-3”).
3V.V. submitted an OCF-3 dated June 14, 2019, completed by a health practitioner indicating that V.V. does not suffer a complete inability to carry on a normal life, which is the test set out under s. 12 of the Schedule for entitlement to NEBs. I note that the OCF-3 was received by AIG on August 1, 2019.
4In the explanation of benefits (“OCF-9) dated August 8, 2019, AIG advised V.V. that she was not eligible for a NEB as per the June 14, 2019 OCF-3.
5V.V. submitted a second OCF-3 dated April 22, 2020, completed by a different health practitioner, in which “yes” was indicated in response to the question of whether V.V. suffers a complete inability to carry on a normal life.
6At the case conference, AIG raised a preliminary issue. AIG submitted that, pursuant to sections 12(3)(c), 36(2) and 36(3) of the Schedule, V.V. was statute-barred from proceeding with her claim to the Tribunal for NEBs because she failed to submit a completed OCF-3 within 104 weeks of the accident.
PRELIMINARY ISSUE
7The following issues are in dispute:
a. Is AIG liable to pay the NEB from December 5, 2017 to December 5, 2019 pursuant to s. 36(3) of the Schedule?
b. Is V.V. entitled to costs?
FINDING
8V.V.’s claim for NEBs is barred under s. 12(3)(c), s. 36(2) and s. 36(3) of the Schedule.
9V.V. is not entitled to costs.
ANALYSIS
NEB – ss. 12 and 36
10For clarification, the issue that this matter turns on is whether V.V. is barred from proceeding with her claim for a NEB under sections 12(3)(c) and 36(3) for failing to submit a complete OCF-3 within 104 weeks of the accident.
11According to s. 12, an insurer shall pay a NEB to an insured 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 and within 104 weeks of the accident. Sections 12(3) (a) and (c) further set out 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.
12Section 36 details the process for claiming a NEB. Section 36(3) provides that the entitlement period for the NEB commences once the completed OCF-3 is received. The gist of the regulation is that an insured who fails to submit a completed OCF-3 is not entitled to a NEB for any period before the completed OCF-3 is submitted.
13The facts before me are that an OCF-3 was initially submitted on August 1, 2019. This OCF-3 indicated that V.V. did not suffer a complete inability to carry on a normal life, therefore she did not qualify for NEBs. The OCF-3 that would have potentially qualified V.V. to NEBs was dated April 22, 2020. In other words, the second OCF-3 was dated (and later submitted) over three years and three months following the accident. Consequently, V.V. is not entitled to payment for a NEB for any period prior to April 22, 2020.
14AIG submits, and I agree, that s. 36 does not provide any exception to the requirement that an insured seeking a NEB must submit a completed OCF-3 and that an insurer is not required to make any payment until the application is complete. Further, I agree that the language of the applicable sections of the Schedule is compulsory, ie: an insured is barred under s. 36 where the OCF-3 is submitted following the 104-week period of NEB eligibility in accordance with s. 12. This is confirmed in Volpe v. Co-Operators Gen. Ins. Co., a decision by the Superior Court by which I am bound.2
15V.V. argues that the 2019 OCF-3 is indicative of her entitlement to a NEB on the fact that there is a note that she experienced a “distinct change in her abilities to function in school.” V.V.’s position is that this, along with the April 2020 OCF-3 noting a complete inability, is sufficient enough to find that she is not barred, and that she meets the basis for the NEB test.
16I disagree. As noted earlier, the key indicator of whether V.V. qualifies for a NEB is whether she suffers a complete inability to carry on a normal life. The initial OCF-3 submitted during the period of eligibility clearly indicated she did not. The 2019 OCF-3 was submitted very near to the end of the period of eligibility, therefore potentially, and consequently limiting V.V. from making a valid, timely claim for a NEB. Her failure to have done so resulted in the activation of the provisions of the Schedule barring her from making a claim for NEB entitlement.
17V.V. further argues against AIG’s position that a “completed” OCF-3 means one that indicates a complete inability to carry on a normal life. While I agree with her position, her submissions fail to sufficiently address the provisions of the Schedule and the timing of the submission of her qualifying OCF-3. Section 12 clearly sets out that an insurer is not required to pay for a NEB for any period more than 104 weeks following an accident. Section 36(3) is also very clear an insured is not entitled to a NEB for any period before an OCF-3 is submitted.
18Since V.V. did not submit a qualifying OCF-3 until after April 22, 2020, significantly after her period of entitlement to a NEB had passed, there is no grounds on which she is able to proceed. Further, any argument over the meaning of “completed” is irrelevant. As V.V. did not submit the OCF-3 indicating that she suffered a complete inability to carry on a normal life until over three years after the accident, she is not entitled to the benefit during the entire period of eligibility pursuant to s. 12. Further, if she was in fact entitled to a NEB, AIG is not required to pay for it under s. 12(3)(c).
COSTS
19V.V. seeks a costs award despite providing AIG with case law from the Tribunal that has previously decided the issue in dispute in this preliminary hearing. She submits that AIG maintained its position and forced V.V. to incur the costs of responding to this preliminary issue.
20Under Rule 19, a party may request costs if it believes another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith. A cost award under Rule 19 is a discretionary remedy that is made in exceptional circumstances. A cost award is meant to deter and penalize behaviour that goes against the spirit of the dispute resolution process. To receive a costs award under Rule 19, there must be sufficient evidence that the other party has conducted themselves in a way that is unreasonable, frivolous, vexatious or in bad faith.
21On the evidence, I find V.V. is not entitled to costs.
22AIG relied on the provisions set out in the Schedule that are very clear on the issue of initiating the process for a NEB claim. V.V. failed to initiate her claim within the allowable period of entitlement.
23Having determined that AIG appropriately maintained its position that V.V. is barred from proceeding with her claim for a NEB, it follows that costs are not appropriate. V.V. has pointed me to nothing in AIG’s behaviour in this proceeding that can be characterized as unreasonable, frivolous, vexatious or in bad faith.
CONCLUSION
24V.V.’s claim for a NEB is dismissed as it is barred by s. 36(3) and s. 12(3)(c) of the Schedule.
ORDER
25Pursuant to the Tribunal Order dated January 7, 2021, the parties shall contact the Tribunal to schedule a resumption of the case conference within 30 days of the release of the preliminary issue decision.
Released: August 17, 2022
Derek Grant
Adjudicator
Footnotes
- O. Reg 34/10, as amended.
- Volpe v. Co-Operators Gen. Ins. Co., 2017 ONSC 261, at par. 55.