Citation: Scandlan v. Primmum Insurance Company 2023 ONLAT 23-002717/AABS-PI

Licence Appeal Tribunal File Number: 23-002717/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:

Angela Scandlan

Applicant

and

Primmum Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Alicia Stuart, Counsel

For the Respondent: Jennifer Kiss, Counsel

HEARD: By way of written submissions

OVERVIEW

1Angela Scandlan’s (the “applicant’s”), husband and son were involved in an automobile accident on March 23, 2014, and suffered serious injuries as a result. The applicant claims that she has been psychologically impacted by her husband and son’s accident and claimed entitlement to benefits from the respondent, Primmum Insurance Company, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”), which were denied. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

2At the case conference, the respondent raised a preliminary issue, that the applicant be barred from proceeding with her claim for income replacement benefits (“IRBs”). The Case Conference Report and Order dated November 8, 2023 (“CCRO”) identified the preliminary issue as being that the applicant had failed to dispute the denial within the 2-year limitation period. After the release of the CCRO, the respondent brought a motion to correct the preliminary issue in dispute, as identified in the CCRO. The motion was set to be heard as part of this preliminary issue hearing.

3The substantive issues as listed in the CCRO are not before me.

MOTION

4By way of Notice of Motion dated November 30, 2023, the respondent requests that the preliminary issue be corrected from that listed in the CCRO. It submits that in its Case Conference Summary, it identified the preliminary issue as being:

i. Is the applicant barred from proceeding with her claim for IRBs pursuant to s. 5(1) of the Schedule, as they failed to file their IRB application within the first 104-weeks post-accident?

5The applicant provided her consent to the amendment to the preliminary issue in an email dated November 20, 2023. Both parties provided their submissions for this preliminary issue hearing, referencing the application of s. 5(1) of the Schedule.

6I grant the respondent’s motion. Both parties agree that the preliminary issue to be heard at this hearing is as referenced in para 4i above. Further, both parties provided submissions on the application of s. 5(1) of the Schedule to the applicant’s claim for IRBs. As such, this preliminary issue hearing will proceed on the basis of the amended preliminary issue.

PRELIMINARY ISSUE IN DISPUTE

7The preliminary issue to be decided is:

i. Is the applicant barred from proceeding with her claim for IRBs pursuant to s. 5(1) of the Schedule, as they failed to file their IRB application within the first 104-weeks post-accident?

RESULT

8The applicant is barred from proceeding with the issue of IRBs due to her failure to submit her application within the timelines prescribed by the Schedule.

BACKGROUND

9The applicant’s husband and son were involved in an accident on March 23, 2014. The applicant submits that both were seriously injured and that her husband has been found to be catastrophically impaired. She contends that over time, she has suffered stress and anxiety as a result of their injuries and their deterioration since 2014.

10The applicant submitted a Disability Certificate (“OCF-3”) to the respondent on March 9, 2021. The respondent sent correspondence to the applicant on March 10, 2021 requesting a completed Application for Accident Benefits (“OCF-1”), which the applicant provided on April 6, 2021. On April 9, 2021 the respondent confirmed receipt of the OCF-1 and requested an Employer’s Confirmation Form (“OCF-2”) and an updated OCF-3. It noted that the previous OCF-3 completed by the applicant’s doctor deemed that IRBs were “n/a”. The applicant does not dispute that to date, she has not provided the updated OCF-3 or the OCF-2.

11The respondent submits that the applicant should be barred from proceeding with her claim for IRBs because she failed to apply for IRBs within 104 weeks of her husband and son’s accident.

ANALYSIS

Law

12Section 5(1)(1)i of the Schedule sets out that IRBs are contingent on an insured person suffering a substantial inability to complete their essential tasks of employment within 104 weeks of the accident.

13Section 32(1) of the Schedule provides that a person who intends to apply for accident benefits shall notify the Respondent of their intention no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day. Pursuant to s. 36(2) an applicant must submit a completed OCF-3 with their application. Further, s. 36(3) provides that failure to provide a completed OCF-3 disentitles an applicant to IRBs for any period before the OCF-3 was submitted.

14The respondent submits that the applicant’s failure to submit an OCF-3 within 104 weeks of the accident serves as a complete bar to her proceeding with her claim for IRBs.

Was the applicant’s OCF-3 late filed?

15I find that the applicant’s OCF-3 was not filed within the timelines prescribed by the Schedule.

16The respondent submits that the applicant has not complied with s. 36 of the Schedule, as she failed to submit a completed OCF-3 for IRBs within 104 weeks of the accident. It relies on Tribunal decisions C.G. v. Pembridge Insurance Company, 2020 CanLII 51276 (ON LAT), and J.V. v. TD Insurance Meloche Monnex, 2019 CanLII 110091 (ON LAT) in support of its position that the applicant was required to submit a completed OCF-3 within 104 weeks of the accident, in order to claim entitlement to IRBs.

17Citing J.V. v. TD, the respondent argues that s. 5(1)(1) of the Schedule, which outlines basic IRB entitlement, must be read together with s. 36(3). As such, the Schedule requires that an application for IRBs be made within 104 weeks of an accident. If such an application is not made, the claim must be barred.

18The applicant does not dispute that she has submitted her claim for IRBs outside of the time periods prescribed by the Schedule. However, she submits that the principle of discoverability applies, relying on the Court of Appeal decision Tomec v. Economical, 2019 ONCA 882 and the Divisional Court decision Tagoe v. The Personal, 2023 ONSC 5715. In Tagoe, the Court noted that the adjudicator had erred in law by failing to apply the doctrine of discoverability and that an applicant was not required to apply for IRBs before they were eligible for them. The applicant submits that her claim is derivative in nature, and that she has developed her impairments after the date of the accident. She argues that these discoverability considerations should be heard at the substantive hearing, together with all of the issues in dispute.

19I am not persuaded by the applicant’s argument. The applicant has raised the principle of discoverability as the basis for her argument that she is not outside the 104 week time period and that her claim for IRBs should not be barred. She argues that she did not develop her psychological impairments until a date “after” the 104 week mark. However, the applicant has not led any evidence in support of this claim.

20Instead, the applicant provides general submissions that her husband’s and son’s “deterioration over time”, her husband’s catastrophic designation and her various parental leaves are “important considerations to the principle of discoverability”. However, it is well-settled that submissions alone are not evidence. Rather, evidence must be provided in support of a claim. The applicant has not submitted any clinical notes and records from a family physician, assessments or treatment records, to establish when her psychological impairments developed. She references parental leaves, but no dates or details of such leave are provided.

21The respondent has provided some evidence in support of its claim that the applicant’s alleged impairments were discoverable by late 2018 or February 2019. As such, it argues that even if the doctrine of discoverability were applied, the applicant still would have been aware of her impairments more than 104 weeks prior to the submission of the OCF-3. However, no such supporting evidence was submitted by the applicant.

22The timing of the development of the applicant’s impairments is central to her argument that she should not be barred from pursuing IRBs pursuant to s. 5(1) of the Schedule. Given the applicant’s failure to lead any evidence to establish such timing, the applicant has failed to establish that the principle of discoverability mitigates against her late filing.

23As such, on the evidence before me, I find that the applicant did not submit her claim for IRBs in accordance with s. 5(1) of the Schedule.

CONCLUSION AND ORDER

24The applicant is statute-barred from proceeding with her claim for IRBs.

25The remaining substantive issues in dispute will proceed to the substantive issue hearing, scheduled for June 14, 2024.