Christine Petsinis v. Aviva General Insurance Company, 2023 CanLII 55976

22-008028/AABS-PI

Licence Appeal Tribunal File Number: 22-008028/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:

Christine Petsinis

Applicant

and

Aviva General Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Christine Petsinis, Applicant

Tony Lafazanis, Counsel

For the Respondent:

Natalie Spinelli, Paralegal

Heard by way of written submissions

OVERVIEW

1Christine Petsinis, the applicant, was involved in an automobile accident on February 13, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule -Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Aviva Insurance Company of Canada (“Aviva”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided is whether the applicant should be barred from proceeding with her claim for an income replacement benefit (IRB) or a non-earner benefit (NEB) as she failed to submit an application for benefits within the times prescribed by the Schedule.

RESULT

3The applicant is -barred from proceeding with her application.

ANALYSIS

Background

4On May 9, 2017, the applicant submitted the disability certificate (“OCF-3”). A few months later, the applicant submitted the Application for Accident Benefits (“OCF-1”) on October 15, 2017. In June of 2018, the applicant’s claim was closed due to inactivity as she was not attending treatment. On December 1, 2020, a second OCF-3 was submitted to the respondent via email.

5The respondent submits that the applicant is not entitled to an IRB or NEB because she failed to submit a completed disability certificate for either benefit. It is the respondent’s position that the applicant has not applied for the IRB or NEB as required by section 36(2) of the Schedule. The OCF-3 dated May 9, 2017 indicated the applicant did not meet the test for either benefit.

6The second OCF-3 dated June 22, 2020 was provided over three years post-accident and indicates the applicant is working on modified duties and able to work continue working modified duties. The June 22, 2020 disability certificate is also incomplete as it is not signed by the applicant and is missing information. The respondent is relying on Ozor and Aviva Insurance, 2022 CanLII 106429 (ON LAT), Munu Munu and Aviva Insurance, 2021 CanLII 50788 (ON LAT), S.M. and Aviva Insurance, 2020 CanLII 14426 (ON LAT), Sookram and Zenith Insurance, 2021 CanLII 13201 (ON LAT), C.G. and Pembridge Insurance, 2020 CanLII 51276 (ON LAT), M.L. and Unifund Assurance Company, 2020 CanLII 63567 (ON LAT) and Dooley and Aviva Insurance, 2021 CanLII 111189 (ON LAT)

7The applicant submits that she submitted her application within the prescribed timelines. She is relying on Stone v. Ayr Farmers Mutual Insurance, 2015 ONSC 6782 and Sookbir v. Wawanesa Insurance, 2023 CanLII 13041 (ON LAT).

Legislation

8Section 32(5) of the Schedule requires an applicant to submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms. Section 36(2) specifies that an applicant for a specified benefit, e.g., an IRB or NEB, shall submit a completed disability certificate with his or her application under section 32. Therefore, the correct limitation period to submit the OCF-3 along with the OCF-1 remained 30 days after receiving the application forms from the respondent, as provided by section 32.

9In order for an OCF-3 to be considered complete, it must be filled out and signed by a health practitioner of the applicant's choice. Once the insurer receives that completed OCF-3, it has 10 business days to either pay the benefit, ask for a section 44 assessment or a request for more information under section 33.

10Section 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”.

11Section 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].”

OCF-3 dated May 9, 2017

12I am not persuaded by the respondent’s position that the applicant did not submit a completed OCF-3. My interpretation of sections 36(2) and (3) is that an applicant must submit a completed OCF-3 along with his/her application. These sections do not make any reference to whether or not the applicant must meet the substantial inability test or the complete inability test. Moreover, I note that the respondent did not direct the Tribunal to any other deficiencies in the OCF-3.

13Adopting the interpretation of the legislation proffered by the respondent would be inconsistent with the consumer protection spirit of the Schedule. By way of this logic, any OCF-3 that does not support entitlement to a specified benefit would be considered to be incomplete and could preclude applicants from applying to the Tribunal for dispute resolution. I do not believe this to be the intent of the legislature or else it would have been clearly expressed in the legislation. Section 36 requests an applicant to submit a fully completed OCF-3, not an OCF-3 that fully supports eligibility for a specified benefit.

14Moreover, I am not persuaded by the case law that the respondent is relying on. In my view, those cases are reading in an additional requirement into section 36(2) that has not been included by the legislature. Furthermore, these decisions are not binding on me. I am more persuaded by the case law provided by the applicant and have applied it to the facts before me.

15I have reviewed the OCF-3 dated May 9, 2017 and find that the applicant sent the respondent a completed OCF-3. The OCF-3 has all the information available for the respondent make a decision regarding the applicant’s entitlement. The OCF-3 was filled out, dated, and signed by a regulated healthcare professional. The document addressed the applicant’s disability and entitlement to NEB or the IRB.

16The fact that her health practitioner noted that she did not meet the applicable test for the disability did not render the OCF-3 incomplete. Moreover, the respondent did not deny the application on the basis that it was incomplete. It was denied because the applicant did not meet the test for the benefit. The respondent did not direct the Tribunal to issues with the application. In my view, the applicant has met the requirements for an application for the NEB or the IRB. Therefore, she may proceed with this issue to the hearing.

17Based on the evidence before, I find that the OCF-3 complied with the requirements under sections 36(2) of the Schedule.

OCF-3 dated June 22, 2020

18I have reviewed the OCF-3 dated June 22, 2020. Pages one to two of the OCF-3 are not properly completed. Apart from the applicant’s name and date of birth, the applicant information section (Part 1) is blank. Parts 2 to 4 have not been completed. The OCF-3 is missing the applicant’s signature. In my view, this OCF-3 is incomplete.

The applicant did not submit the application within the prescribed timelines

19On February 13, 2017, the applicant was involved in the accident. Based on the adjuster’s log notes, the respondent was notified on February 16, 2017. On the same day, the application package was sent to the applicant. The first OCF-3 was submitted on May 9, 2017. The OCF-1 was submitted on October 15, 2017. The OCF-1 and OCF-3 were submitted more than 30 days after the applicant received the application package.

20I note that section 34 of the Schedule states that “a person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.” The onus is on the applicant to establish a reasonable explanation for the delay. The interpretation of “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada, FSCO A02-000482, June 9, 2003, and was more recently reiterated in K.H. vs Northbridge, 2019 CanLII 101613 (ON LAT). The guiding principles are summarized as follows:

1. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.

2. The onus is on the insured person to establish a “reasonable explanation.”

3. Ignorance of the law alone is not a “reasonable explanation.”

4. The test for “reasonable explanation” is both a subjective and objective test that should take account of both personal characteristics and a “reasonable person” standard.

5. The lack of prejudice to the insurer does not make an explanation automatically reasonable.

6. An assessment of reasonableness includes a balancing of prejudice to the insurer, hardship to the claimant and whether it is equitable to relieve against the consequences of the failure to comply with the time limit.

21The applicant’s submissions are silent on why there was a delay. As such, I find that the applicant did not submit the application for the benefit within the times prescribed in the Regulation. Therefore, she cannot apply to the Tribunal under subsection 280(2) of the Act.

ORDER

22The applicant is barred from proceeding with her application before the Tribunal.