Citation: Al-Basheky v. Co-operators General Insurance Company, 2023 ONLAT 20-008231/AABS-PI

Licence Appeal Tribunal File Number: 20-008231/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:

Jolyan Al-Basheky

Applicant

and

Co-operators General Insurance Company

Respondent

PRELIMINARY ISSUE DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Peter Cimino, Counsel

For the Respondent: Stanislav Bodrov, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Jolyan Al-Basheky (the “applicant”) was involved in a motor vehicle accident on November 9, 2018 and sought benefits from Co-operators General Insurance Company (the “respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant applied for income replacement benefits (“IRB”), which the respondent denied on the basis that he did not produce a Disability Certificate/OCF-3 within 104 weeks of the accident. Co-operators raised a preliminary issue by way of a motion order dated April 26, 2022 seeking to bar the applicant from proceeding with his IRB application.

PRELIMINARY ISSUE

3The preliminary issue to be determined is as follows:

1. Is the applicant barred from proceeding with his IRB claim because he failed to submit a Disability Certificate/OCF-3 within the 104-week timeframe prescribed by the Schedule?

RESULT

4The applicant is barred from proceeding with his claim for IRB as he failed to comply with the timelines as prescribed by the Schedule for the submission of a Disability Certificate/OCF-3. The applicant’s claim is dismissed.

BACKGROUND

Law

5Section 5(1)1. of the Schedule sets forth the eligibility criteria for IRB. Most notably for the purposes of this decision, it sets the initial eligibility period for IRB to within 104 weeks after the accident.

6Section 33(1) of the Schedule holds that an applicant shall provide the insurer with any information reasonably required to determining the applicant’s entitlement to a benefit within 10 days of receiving such a request.

7Section 36 of the Schedule addresses the application process with regard to specified benefits, namely IRB, non-earner benefit, caregiver benefit, or payment for housekeeping and home maintenance services. Section 36(2) mandates that an applicant for one of these specified benefits shall submit a completed disability certificate with his or her application pursuant to the provisions of s. 32 that govern the application process regarding mandatory notification to insurers. And s. 36(3) of the Schedule states that “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.”

8Section 56 of the Schedule states that any application “in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.”

9Taken together, the above sections of the Schedule govern the way that an applicant shall submit an application for IRB. The Schedule clearly lays out the forms that are required to be eligible for the benefit and a timeline for the submission of these forms to the insurer.

10With that said, s. 34 of the Schedule holds that a person is not disentitled to a benefit for failure to comply with time limits if he or she can provide a reasonable explanation. And s. 7 of the Licence Appeal Tribunal Act holds that the Tribunal may extend the limitation period “fixed by or under any Act” as long as the Tribunal is satisfied that there are reasonable grounds for applying this extension.

The Parties’ Positions

11The respondent takes the position that it has never received a properly submitted OCF-3 from the applicant. Co-operators acknowledges receiving an OCF-3 completed by Dr. M. Agyemang, chiropractor, originally dated April 9, 2019, as part of the applicant’s submissions for a case conference held regarding this matter on February 12, 2021. However, it argues that this was not a proper submission as it was not sent to the insurer on its own as an identifiable document but instead bundled with other submissions sent to the respondent’s legal counsel as part of the applicant’s case conference summary.

12The respondent also holds that the OCF-3 was still submitted well over 104 weeks after the accident, as the accident took place on November 9, 2018, meaning that the 104-week period ended on November 9, 2020. This would place the applicant in contravention of s. 5(1)1. and s. 36(2) and s. 36(3). As a result, the respondent submits that the failure to submit the OCF-3 before the 104-week mark after the accident should be fatal to his claim to IRB.

13The applicant accepts that an OCF-3 must be submitted within 104 weeks of the accident, but relies on s. 1 of Ontario Regulation 73/20 to argue that the time limits in the Schedule should not be applied here. This Covid-19 pandemic legislation was enacted on March 20, 2020, and mandated that “any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any limitation period shall be suspended, and the suspension shall be retroactive to Monday, March 16, 2020.” O. Reg. 73/20 was withdrawn on September 14, 2020.

14The applicant submits that the effect of O. Reg. 73/20 was to “extend any running limitation period by 183 days.” Consequently, the applicant claims that he should be granted these additional 183 days to submit his OCF-3. This would move the deadline for submission of his OCF-3 to May 21, 2021, which would mean that the document was submitted in accordance with the Schedule and therefore that his IRB application should be allowed.

15In reply submissions, the respondent submits that the deadline within the Schedule regarding the submission of an OCF-3 is not a “limitation period” as defined in O. Reg. 73/20. Further, Co-operators submits that the term “proceeding” in O. Reg. 73/20 only references the dispute resolution process and not the accident benefit application particulars within the Schedule. As such, O. Reg. 73/20 does not affect the relevant provisions in the Schedule with regard to this dispute, and it does not serve to effectively lengthen the period of time during which an applicant could submit an OCF-3.

ANALYSIS

16I find that the applicant has failed to submit an OCF-3 on the timeline prescribed by the Schedule. As a result, his application is barred from proceeding.

17I agree with the respondent’s argument that the applicant has never properly submitted an OCF-3 to Co-operators. The first time that an OCF-3 was produced was on November 23, 2020, when it was included as part of a case conference summary filed in advance of a case conference with the Tribunal that was initially scheduled for December 1, 2021 but was rescheduled for February 12, 2021. While the fax line at the top of this document indicates that it was sent from Islington North Chiropractic to the applicant’s legal representative on August 2, 2019, no evidence has been adduced by the applicant to support that it was ever sent directly to Co-operators as required by s. 36(2) of the Schedule.

18Although I am not bound by other Tribunal decisions, I am persuaded by the respondent’s reference to Smith v. Intact 2021 CanLII 28712 (ON LAT). In this decision, Vice-Chair Flude found that an OCF-3 must be “submitted in an identifiable form” to the insurer to satisfy the notice requirements of s. 36 of the Schedule. Accordingly, he found that it was insufficient to include an OCF-3 in a bundle of clinical notes and records sent not directly to the insurer, but to the insurer’s legal counsel. That is precisely what the applicant did here, including the OCF-3 as just one of seven PDFs in an email to the insurer’s legal representation and the Tribunal for a case conference. This came some 15 months after the IRB claim was first made and long after it was made apparent by the insurer that the missing OCF-3 was a major issue.

19Co-operators certainly went to great lengths to make the importance of an OCF-3 very clear. The insurer sent correspondence dated March 29, 2019, July 24, 2019, September 11, 2019, November 27, 2019, and June 17, 2020 requesting an OCF-3 and noting that the applicant was in non-compliance with s. 33 of the Schedule with regard to the IRB claim. Despite all of this notice, and despite evidence that the applicant’s legal representation had this OCF-3 in its possession by August 2, 2019 at the latest, the applicant in the end did not provide it until its submission of the case conference summary to opposing legal counsel. Lacking additional evidence, I can only speculate as to the reasons why the applicant’s counsel did not provide the OCF-3 earlier, as requested multiple times. Thankfully, I do not need to do so; I have enough information regardless to determine that the OCF-3 was never properly submitted to the insurer.

20I also concur with the respondent’s interpretation that O. Reg. 73/20 was intended to apply to legal proceedings such as the dispute resolution process described in s. 280(2) of the Insurance Act and referenced in s. 56 of the Schedule, not the entire benefit process as governed by the Schedule. Section 1 of O. Reg. 73/20 refers to “any limitation period.” This is then clarified in s. 2 to note that this applies to “any proceeding” in Ontario. While the wording in s. 2 is admittedly vague in how it seemingly covers “any provision of any statute, regulation, rule, by-law or order of the Government of Ontario,” interpreting this in such a blanket fashion would lead to absurd results.

21If, as pointed out by the respondent in its reply submissions, this premise was accepted, it would mean that O. Reg. 73/20 would add 183 days to all deadlines in the Schedule. For example, the applicant’s argument could see the deadlines for notifying the insurer about an accident and for the insurer to respond to an OCF-18 extended to 193 days instead of 10. As this would hamstring the accident benefits application system in such a way that it would be impossible for it to properly function, I agree with the respondent. O. Reg 73/20 cannot be interpreted in such an all-encompassing way as the applicant submits, “to extend any running limitation period by 183 days.” Correspondingly, O. Reg. 73/20 cannot be used to excuse the submission of an OCF-3 outside of the timelines specified in the Schedule.

22I find that the applicant’s citation of Fratarcangeli v. North Blenheim, 2021 ONSC 3997 at paragraph 41 is not relevant to this matter. All three Tribunal decisions considered in this Superior Court decision involved whether the Tribunal had jurisdiction under s. 7 of the Licence Appeal Tribunal Act to extend the two-year limit for filing appeals as set out in s. 56 of the Schedule. This is an entirely different matter from the issue before me here. First, this court decision does not involve O. Reg. 73/20, as it addresses three Tribunal decisions from 2019. Second, this decision addresses solely s. 56 and the two-year limit on the submission of applications as fixed by the Insurance Act, not the deadlines set within the Schedule for the submission of documents for an application.

23Similarly, I am not convinced by the applicant’s reference to a prior Tribunal decision, Shih v. Economical Insurance, 2021 CanLII 18943 (ON LAT). Although I am not bound by prior decisions of the Tribunal at any rate, I do not agree with the applicant’s characterizations. The applicant depicts Adjudicator Mazerolle’s assessment of O. Reg. 73/20 in paragraph 21 of this decision as definitive with regard to the legislation automatically freezing any and all requirements to act within a certain period of time as of March 16, 2020. However, the applicant fails to comment on the following paragraph, which contains the adjudicator’s rationale for this ruling. Adjudicator Mazerolle therein explains his belief that O. Reg. 73/20 was intended to relieve the “legal profession” of the strain impacted upon it by the Covid-19 pandemic and the difficulty that legal practitioners were encountering to meet deadlines set out in legislation and Tribunal orders. To me, this added context clarifies that Adjudicator Mazerolle was referring to legal proceedings and not specific provisions of the Schedule—which would make sense given the absurd results that such a wide-ranging conclusion would inevitably lead to, as noted above. Also, as with Fratarcangeli v. North Blenheim, the relevant section of Shih v. Economical Insurance deals with the two-year limitation period, not time limits imposed by the Schedule for the submission of documents such as an OCF-3.

24For the reasons explained above, I find that the applicant is barred from proceeding with his IRB application.

ORDER

25I find that the applicant is barred from proceeding with his application for IRB, as he is not in compliance with the timelines as prescribed by the Schedule for the submission of a Disability Certificate/OCF-3.

26The IRB application is dismissed.