Citation: Botbyl v. Heartland Farm Mutual Inc., 2023 ONLAT 21-007355/AABS

Licence Appeal Tribunal File Number: 21-007355/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:

Andrew Botbyl

Applicant

and

Heartland Farm Mutual Inc.

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Peter Cho, Counsel

For the Respondent:

Jonathan Schwartzman, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Andrew Botbyl (“Botbyl”) and Tracey Yaromich (“Yaromich”), (“the Applicants”), were involved in an automobile accident on June 26, 2020, and sought benefits from Heartland Mutual Insurance (“Heartland”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The Applicants were pre-emptively denied benefits by Heartland and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUE

2The issue in dispute is:

i. Are the Applicants entitled to relief from forfeiture related to their application to Heartland for accident benefits?

RESULT

3I find that the Applicants are entitled to relief from forfeiture related to their application to Heartland for accident benefits.

BACKGROUND

4The Applicants, who are spouses, were involved in a motorcycle accident and sustained significant fractures and head trauma and required immediate hospitalization. In the days following the accident, the Applicants’ daughter contacted their insurance broker regarding access to benefits.

5The Applicants had at least two motor vehicle insurance policies at the time of the accident. The Applicants’ motorcycle was insured under a standard policy with one insurer (“Economical”) and the Applicants’ other vehicles were insured under a policy with Heartland, which included enhanced benefits. The enhanced benefits provide access to certain accident benefits at an increased rate or increased policy limit. It is undisputed that the policy with enhanced benefits through Heartland would provide substantially greater coverage for the Applicants than the policy with Economical.

6Following her conversation with the insurance broker’s office, and on the advice obtained during that call, the Applicants’ daughter contacted Economical to inquire about coverage. During that conversation, she discussed the Applicants’ “add-on” benefits with Heartland and was counseled by Economical to initiate an application with Economical and then, later, seek additional coverage from Heartland for the enhanced benefits.

7Meanwhile, the insurance broker’s office contacted Heartland on July 9, 2020 and advised that the Applicants intended to claim benefits through it because that policy has enhanced benefit coverage. After, Heartland then spoke with Botbyl, and the log notes from that call indicate that he advised that Yaromich remained in hospital. The log notes acknowledge that the Applicants’ policy included coverage for enhanced benefits, but also queried whether Heartland holds priority of the claim over Economical. In any event, an accident-benefit package was emailed to the Applicants after the call.

8During all of this, the Applicants also retained counsel, who continues to represent them to-date. Their office completed an Application for Accident Benefits (“OCF-1”) on behalf of the Applicants. However, that Application was completed and faxed to Economical, pursuant to the policy without access to enhanced benefits.

9Heartland contacted counsel for the Applicants on July 13, 2020, seeking an update on the application for accident benefits. Counsel advised that an application was made to Economical. In response, Heartland advised counsel to not send an application to it, as it would be moot considering the private arbitration decision of Jevco Insurance Company v. Chieftain Insurance Company (Arbitrator Samworth – March 11, 2016) (“Jevco”). In other words, Heartland advised that it would not accept the claim because the Applicants had already applied to Economical.

10Economical sent Heartland a Notice of Priority Dispute on July 17, 2020. In the notice it claimed that Heartland has priority on the Applicants’ claims because it holds the policy with enhanced benefits. Heartland replied to the notice on July 30, 2020 and, in that letter, denied any liability towards the Applicants’ claims for enhanced benefits because the Applicants submitted an OCF-1 to Economical first.

11Counsel for the Applicants wrote to Heartland on August 7, 2020 and demanded that it accept their claims. The letter noted that the Applicants inadvertently applied for benefits from Economical and highlighted the unfairness of holding the Applicants to that decision in order to deny benefits. The letter concludes with reference to relief from forfeiture and a request that Heartland reconsider their position on the Applicants’ entitlement to benefits.

12To-date, Heartland has maintained its position that the Applicants are not entitled to enhanced benefits because they applied to Economical first and must proceed with that claim, which does not include access to enhanced benefits.

13The Applicants brought an Application to the Superior Court prior to applying to the Tribunal. They sought a declaration from the Court that they are entitled to relief from forfeiture and are entitled to enhanced benefits from Heartland. In the Endorsement, dated May 25, 2021, Justice Turnbull denied the Application and stated that the Tribunal holds jurisdiction over such disputes and the issue should be heard by the Tribunal. However, Justice Turnbull made additional comments on the issue, which I will address later in my decision.

14To me, the true core of this dispute is whether the Applicants can rescind their decision to apply for accident benefits from Economical and, instead, apply for benefits through Heartland. For the following reasons, I find that the doctrine of relief from forfeiture can be applied and that the Applicants are permitted to rescind their application for accident benefits and, instead, apply for benefits through Heartland.

ANALYSIS

15The onus is on the Applicants to demonstrate entitlement to benefits, pursuant to Scarlett v. Belair 2015 ONSC 2635. Here, the Applicants must demonstrate that I have the jurisdiction to grant the relief they seek and that they are entitled to the relief sought.

16The Applicants submit that the Tribunal has wide authority to decide all issues of entitlement to accident benefits and may employ all powers that are necessary or expedient, except as limited by the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G. (“the LAT Act”). They submit that the LAT Act does not limit the Tribunal’s ability to consider and apply relief from forfeiture. To the Applicants, the LAT Act was drafted to allow for a variety of remedies to be considered by the Tribunal, unless explicitly removed or prohibited by the legislation.

17Heartland disagrees and submits that the Tribunal has repeatedly decided that it does not have the jurisdiction to provide equitable remedies and provided examples.

Jurisdiction to hear the dispute

18As outlined by Justice Turnbull in the Endorsement, dated May 25, 2021, the Tribunal holds the jurisdiction to address this dispute because the dispute involves the Applicants’ entitlement to, or amount of, accident benefits. Section 280(2) of the Insurance Act provides the Tribunal with the jurisdiction regarding disputes in respect of an insured person’s entitlement to, or amount of, statutory accident benefits.

19The issue before me is with respect to the Applicants’ entitlement to accident benefits or, alternatively, the amount of benefits the Applicants are entitled to. While the issue is framed as whether the Applicants are entitled to relief from forfeiture, they ultimately seek entitlement to the enhanced accident benefits they purchased. Specifically, the Applicants seek an increased weekly IRB payment as well as an increased monetary limits for medical and rehabilitation benefits.

20Section 280(3) bars the Applicants from proceeding in any court with respect to their dispute regarding entitlement to or the amount of benefits they are entitled to, except by way of an appeal from a Tribunal decision or an application for judicial review. Thus, the Tribunal is the most appropriate venue to hear the issue.

21However, from the perspective of Heartland, if the Tribunal has jurisdiction over the dispute, it does not have jurisdiction to provide equitable relief in the form of relief from forfeiture. For the following reasons, I find that the Tribunal does have jurisdiction to provide equitable relief in the form of relief from forfeiture.

Jurisdiction to provide equitable relief in the form of relief from forfeiture

22I find that the Tribunal has the jurisdiction to provide equitable relief in this extraordinary situation because the Schedule does not prohibit such a remedy.

23The Applicants submit that the LAT Act provides that the Tribunal has all powers that are necessary or expedient for carrying out its duties, except as limited by the Act. To the Applicants, relief from forfeiture is available because the LAT Act does not prohibit the application of equitable remedies. The Applicants submit that the option of granting equitable relief was suggested in Continental Casualty Company v Chubb Insurance Company of Canada, 2022 ONCA 188 (“Continental”) and endorsed by the Superior Court when they brought an application for relief from forfeiture but were directed to the Tribunal.

24Heartland submits that the Tribunal does not have jurisdiction to grant relief from forfeiture. It submits that the Tribunal has contemplated whether it can grant equitable relief and that it concluded that it does not have the jurisdiction or authority to grant equitable remedies.

25The Applicants highlight that Smith v. Co-operators, 2002 SCC 30 explicitly stated that one of the main objectives of the Schedule is consumer protection. The Applicants submit that permitting the Tribunal with the ability to provide equitable relief is consistent with the consumer protection objective.

26The Applicants also note that the Tribunal ought to revisit the issue of relief from forfeiture in light of the Court of Appeal decision in Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615 (“Stegenga”). Stegenga involved a claim for a breach of duty of good faith that was brought before the Superior Court. The claimant in that case argued that an insurer’s duty of good faith is independent of and in addition to its obligation to pay benefits and that, as a claimant, they ought to be able to bring a claim in the Superior Court. The Court disagreed and concluded that the Tribunal has exclusive jurisdiction pertaining to disputes regarding a person’s entitlement to accident benefits. Stegenga noted that “The Insurance Act and its regulations form a comprehensive scheme for the regulation of insurers and insurance...” I infer from the Applicants’ submissions that they believe this case, which unequivocally finds that the Tribunal has exclusive jurisdiction over disputes regarding a person’s entitlement to accident benefits, supports their position that the LAT Act provides the Tribunal with all the powers necessary or expedient for carrying out its duties and that the Tribunal must have the authority to provide equitable relief, such as relief from forfeiture.

27Other Tribunal decisions are not binding on me. In any event, I find that the cases from the Tribunal on the issue of equitable remedies to be unpersuasive in their application to the scenario at hand and are distinguishable for the following reasons.

Fehr v. Intact Ins. Co.

28The case of Fehr v. Intact Ins. Co., 2022 CanLII 14951 (ON LAT) (“Fehr”) involved an incident where an insured person was injured while doing routine maintenance on their transport truck. In that case, the parties disagreed on whether the incident met the definition of an accident, pursuant to section 3 of the Schedule. The adjudicator in Fehr found that the insured person was involved in an accident. In addition, the adjudicator commented on equitable remedies and whether they are included within the broad reach of section 3(2) of the LAT Act. The Adjudicator found no enabling statutes that expressly permits equitable remedies like waiver or estoppel to be applied and concluded that Tribunal has no broad discretionary power to do so.

29I find the comments made in obiter in Fehr to be unpersuasive because that case addressed an issue that is contemplated by the Schedule and has a remedy for it. The Adjudicator in Fehr stated that the Schedule is generally complete code for resolving accident benefit disputes between insurers and insureds, and it provides for the orders that may be made and for the powers and duties that the Tribunal shall have for the hearing. However, Fehr is distinguishable because it never required an equitable remedy. The remedy for Fehr – finding that the incident was indeed an accident – is provided by the Schedule. In the Applicants’ case here, there is no remedy provided by the Schedule to correct the error made by applying to Economical instead of Heartland.

16-001810 v. Aviva Insurance

30In 16-001810 v. Aviva Insurance, 2017 CanLII 43883 (“16-1810”), the Adjudicator refused to invoke estoppel by convention. Amongst other things, the adjudicator found that equitable remedies are so extraordinary, and potentially far-sweeping in scope, that the conferral of such a power must be expressed in clear and explicit language.

31I find 16-1810 unpersuasive relative to the current dispute. The issue in 16-1810 was that the Respondent initially accepted the Applicant’s claim for attendant care benefits without considering whether the benefits were incurred pursuant to section 3(7)(e) of the Schedule. It subsequently changed its position and sought proof that the benefits were incurred. The Tribunal declined to provide relief in the form of estoppel by convention and permitted the insurer to reconsider its position. I find that 16-1810 is not applicable to the narrow facts before me because it addressed issues that are expressly contemplated in the Schedule. The case of 16-1810 considered what renders a benefit to be “incurred” and refused to entertain the notion that the insurer should be precluded from changing its position on entitlement. To put it differently, the Tribunal permitted the insurer to change its position on the insured person’s entitlement, despite the detriment to the insured person, because the behaviour was compliant with the Schedule. While the adjudicator in that decision refused to grant the remedy on the grounds of jurisdiction, I find it distinguishable from the case at hand. Granting the relief in 16-1810 would require the adjudicator to conclude that attendant care benefits were incurred, despite not meeting the “incurred” definition provided by the Schedule. Naturally, such an equitable remedy would not be available in that situation because it would be contrary to section 3(7)(e).

M.F. v Belair Direct

32The Tribunal refused to apply section 98 of the Courts of Justice Act, R.S.O. 1990, c. C.43 in the preliminary issue hearing of M.F. v Belair Direct, 2017 CanLII 19200 (ON LAT) (“MF”). In this case, the Applicant sought a broad interpretation of what delivery of a vehicle means as it pertains to whether an insurance policy applies. The Adjudicator determined that the Tribunal is an arm of the Executive branch of government and is not impowered by the Legislature to use section 98 of the Courts of Justice Act.

33I appreciate the commentary in MF on the Courts of Justice Act and its application. I agree that while section 98 of the Courts of Justice Act is available to a court, it is not expressly available to the Tribunal. The Legislature clearly restricted section 98 to courts only. I am supported by this interpretation by comparison with section 109 of the Courts of Justice Act, which deals with Notices of Constitutional Question. Section 109(6) states that section 109 applies to boards and tribunals as well as court proceedings. This example illustrates clear legislative recognition of the difference between courts and tribunals and, applying the rule of consistent interpretation, the omission of boards and tribunals from section 98 indicates its availability to a court only.

34However, I find MF distinguishable from the case at hand because MF never involved an error committed by an unsophisticated person. Rather it involved a claimant who sought a broad interpretation of the term “delivery” in order to qualify for a specified benefit. Whereas here, the insureds seek a remedy to a reasonable error committed when applying for benefits.

J.T. and Aviva Canada Inc.

35The reconsideration decision of J.T. and Aviva Canada Inc., 2018 CanLII 8097 (ON LAT) (“JT”) concluded that the legislature would have included equitable relief such as estoppel as a remedy had the intention been to include it. This case involved a situation where an insurer paid benefits to a claimant for a period of almost one year before determining that it was not liable to pay the benefits because the incident in that claim did not meet the definition of an “accident” (which is required in order to initiate a claim for benefits). The claimant in that case argued that the insurer was estopped from denying benefits because it accepted his claim for nearly a year. The Tribunal rejected this argument.

36I agree with the outcome in JT but find the reasons for not granting the remedy unpersuasive. The decision in JT notes that the facts of that case do not require the exercise of equitable jurisdiction and it would undermine the purpose of certain sections of the Schedule. Section 52 of the Schedule contemplates scenarios where benefits may be paid in error and provides guidance on the issue. To me, this is what distinguishes it from the Applicants’ case. JT considered an equitable issue that is contemplated in the Schedule, which includes a remedy for the issue. Whereas in the Applicants’ case, there is no section in the Schedule or Insurance Act which expressly guides parties on how to address a situation where an insured applies to one policy when they intend to apply to another policy with greater coverage for benefits. To invoke estoppel in a situation such as that outlined in JT would be contrary to the Schedule and the Tribunal’s mandate pursuant to section 280 of the Insurance Act.

Jevco Insurance Company v. Chieftain Insurance Company

37The Respondent relies heavily on the private arbitration decision in Jevco Insurance Company v. Chieftain Insurance Company (Arbitrator Samworth – March 11, 2016) (“Jevco”). Jevco involved a priority dispute where an insured had a policy for his motorcycle with Jevco and an auto policy with Chieftain, which had enhanced optional benefits. The issue was whether the purchase of optional benefits affects and the completion of the OPCF-47 and the priority rules under section 268 of the Insurance Act. The arbitrator determined that the insured person makes only one application for accident benefits and made no exception for the insured. In fact, the arbitrator acknowledged the unfairness that her interpretation of the law created. She anticipated that the effect of Jevco in practice would be that the insured person was unable to claim entitlement to enhanced benefits because they initiated their claim for benefits under the policy without the enhanced benefits that the insured person paid for.

38I acknowledge that the situation in Jevco and the Applicant’s case is remarkably similar. Yet, Jevco is not binding, and the cases are distinguishable. Jevco involved a priority dispute between two insurers and this case involves an insured person’s access to benefits. The discrete issue of whether the insured was entitled to enhanced benefits was never addressed in Jevco but instead, explicitly omitted from the decision. Indeed, the arbitrator speculated on the application of her interpretation following the decision, but she correctly noted that addressing entitlement was not an issue before her.

The Endorsement of Justice Turnbull, dated May 25, 2021

39Turning back to the Endorsement of Justice Turnbull, the comments from the Superior Court suggest that the arbitrator in Jevco erred in concluding that the effect would be that the insured would be barred from accessing enhanced benefits. Rather, Justice Turnbull suggested that the insured – the Applicants in this hearing – could rescind their initial application for benefits and apply pursuant to the policy with access to enhanced benefits. The Justice suggested that this solution was compliant with the Schedule and noted that nothing in the Schedule prevented the Applicant from this action, so long as he maintained only one application for benefits.

40I appreciate the commentary from Justice Turnbull and find it to be a compelling resolution. Granting the Applicant’s relief from forfeiture and permitting them to rescind their application for benefits and apply to Heartland is compliant with the Schedule because there is nothing in the Schedule that prohibits it, especially in rare circumstances such as the Applicants’.

Continental Casualty Company v Chubb Insurance Company of Canada

41I also find the comments in Continental to be persuasive.

42Continental involved a priority dispute between insurers that commented on the OPCF-47 and the Jevco decision. Specifically, the Court highlighted that Jevco acknowledged the harsh affect of the decision but provided an alternative resolution. At paragraph [108], the Court stated:

I observe that potential unfairness arising from an insured’s errors when applying for SABS may, in some cases, be corrected by invoking relief from forfeiture as happened in this case.

43The statement in Continental is clear and compelling in light of the similar fact scenarios in Jevco and the present case. While I acknowledge that the comments are made obiter and not binding on the Tribunal, the statement remains persuasive.

[Section 129](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html) of the [Insurance Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html)

44The comments in Continental suggest that relief from forfeiture is a remedy available to the Applicants. Yet, the Tribunal is the Applicants’ only authorized avenue for formal dispute resolution. If the Tribunal is not the venue to provide equitable relief in the form of relief from forfeiture, what would be the venue?

45I agree with the Applicants and find that section 129 of the Insurance Act provides jurisdiction to provide relief from forfeiture in the rare situation such as the Applicants’, where there is imperfect compliance with a statutory condition related to proof of loss. Further, I find that the Tribunal is the best venue to provide the relief described in section 129 of the Insurance Act.

46Section 129 of the Insurance Act states the following:

129 Where there has been imperfect compliance with a statutory condition as to the proof of loss to be given by the insured or other matter or thing required to be done or omitted by the insured with respect to the loss and a consequent forfeiture or avoidance of the insurance in whole or in part and the court considers it inequitable that the insurance should be forfeited or avoided on that ground, the court may relieve against the forfeiture or avoidance on such terms as it considers just. R.S.O. 1990, c. I.8, s. 129.

47I find that section 129 of the Insurance Act is applicable because it does not expressly state that it does not apply to auto insurance policies. The Insurance Act is clear in its application and provides clear exclusions where intended. For example, subsection (7) of section 124 of the Insurance Act expressly states that the section does not apply to contracts of automobile insurance. Yet, section 129 does not include such language. This suggests that it applies across all contracts of insurance, including automobile insurance policies. Yet, the term “courts” is not defined in the Insurance Act. One can reasonably assume it excludes administrative tribunals, such as this one.

48However, excluding jurisdiction to this Tribunal to provide relief from forfeiture as described in section 129 of the Insurance Act creates an unfair situation for the Applicants that must be avoided in order to remain consistent with the consumer protection nature of the Insurance Act and the Schedule. Denying the Tribunal jurisdiction to award relief from forfeiture in this scenario forces the Applicants to frivolously exhaust their appeal options with the Tribunal in order to advance to the Court and attempt to seek a potential remedy provided to them through section 129 of the Insurance Act. The Tribunal is the only formal avenue for dispute resolution available to the Applicants. Again, I highlight that section 280(2) of the Insurance Act directs parties to apply to the Tribunal for resolution of a dispute with respect to an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled. Section 280(3) of the Insurance Act prohibits parties from bringing a proceeding to any court with respect to these disputes.

49Forcing the Applicants to frivolously exhaust their options at the Tribunal before accessing a remedy through the Courts is contrary to the consumer protection mandate and, in my opinion, is not in accordance with the overall scheme of the Schedule. The best way to resolve this issue is to permit the Tribunal with the jurisdiction outlined in section 129 of the Insurance Act and allow it, in this rare and extraordinary circumstance, to provide relief from forfeiture.

Relief from Forfeiture Test

50While the jurisdiction of the Tribunal holds a great deal of attention in this decision, I must still consider whether the Applicants in fact meet the test for relief from forfeiture. For the following reasons, I find that the Applicants meet the test for relief from forfeiture.

51The Supreme Court of Canada, in Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 SCR 490, 1994 CanLII 100 (SCC) (“Saskatchewan River”) has outlined factors to consider when deliberating on whether to grant the purely discretionary equitable remedy of relief from forfeiture. They are: the conduct of the Applicants, the gravity of the breaches, and the disparity of the property forfeited and the damage caused by the breach.

52When applied to the Applicants’ case, the factors weigh in their favour. I find no evidence of dubious behaviour by the Applicants or their counsel throughout this process. From my perspective, the Applicants’, through their counsel’s office, made an innocent mistake when applying for accident benefits. Heartland immediately attempted to capitalize on that mistake by denying priority of the claim and stating that it would not accept the Applicants’ claims. Within fewer than four weeks of making the mistake, the Applicants made a written request for Heartland to reconsider their position and Heartland refused.

53The gravity of the breach also weighs in favour of the Applicants. As noted by the Applicants in their submissions, permitting Heartland to avoid paying accident benefits due to the Applicants’ error would provide a windfall for Heartland – it collected premium benefit without having to uphold the contractual obligations relative to those payments. Whereas, permitting the Applicants to rescind their claim with Economical and file a fresh claim with Heartland causes no additional harm as Heartland would otherwise been liable for the claim, but for the Applicants’ innocent error.

54The disparity between the value forfeited and the damage caused also weighs in favour of the Applicants. Under the policy with Economical, the Applicants have access to coverage for medical and rehabilitation benefits and income replacement benefits in the amounts of $65,000.00 and $400.00 per week, respectively. Under the Heartland policy, the Applicants have access to coverage for medical and rehabilitation benefits and income replacement benefits in the amount of up to $1,000.000.00 and $800.00 per week, respectively.

55Having considered the factors outlined in Saskatchewan River and finding that they weigh in favour of the Applicants, it follows that the Applicants meet the test for relief from forfeiture.

Consumer Protection and Public Policy

56It is contrary to the consumer protection nature of the Schedule and the equitable principles established through the common law to impose such a barrier when no barrier is provided. In other sections, the Schedule expressly states when a decision made by an insured person is irreversible and yet, it does not state so when it comes to rescinding an application for accident benefits made in error. For example, section 35(3) of the Schedule expressly states that an election of a specified benefit is final, regardless of a change in circumstances (outside of a determination of a catastrophic impairment). Thus, a finding that the Applicant’s application for benefits is irrevocable, without legislation stating so, would be inconsistent with other provisions outlined in of the Schedule.

57The public policy implications of refusing the Applicants relief from forfeiture are significant and ought to be avoided. The Respondent’s narrow interpretation and application of the Schedule leaves consumers without access to benefits they paid for and may be entitled to. Consider the scenario like the Applicants’ where a drastically injured person applies for benefits in haste in order to access funding to address their medical needs in the acute phase following their accident. This includes such needs as attendant care, prescription drugs, or medical devices. But in their haste, they or their delegate, applies to the policy without access to enhanced benefits. It would be patently unfair and detrimental to the insured person to hold them to that election. This is particularly the case when the Schedule is silent on the issue and does not, in fact, prohibit an insured person from rescinding their application.

58In the end, the Schedule is consumer protection legislation, and any ambiguity should be read in favour of the Applicants. The Schedule assumes that insured persons will make the one, proper, application, but provides no guidance on how to address a situation where they do not. While Heartland submits that there is no provision permitting the Applicants to reapply for benefits, there is equally no provision prohibiting them from revoking the initial application and submitting a new one.

Further commentary

59In its submissions, Heartland noted that the Applicants have yet to submit an application or a new application to it. I infer from these submissions that Heartland implies that it has not denied any benefits or that there is no dispute over entitlement for the Tribunal to address.

60I am not dissuaded by the Applicants’ failure to submit an application or a new application to Heartland. The documents are clear that Heartland confirmed that it would refuse the applications anyway. Thus, it was reasonable for the Applicants to apply to the Tribunal to efficiently and effectively resolve the dispute over entitlement to benefits.

61The most just and equitable solution is to permit the Applicants the ability to rescind their initial application and submit a new application, pursuant to the policy which includes the enhanced benefits the Applicants paid for. In practice, the Schedule encourages insurers to avoid any delay in determining an insureds entitlement to benefits, including disputes pertaining to insurer priority. This practice enables an insured person to access benefits in a timely manner in order to adequately address their accident-related injuries, without having that access delayed over a dispute between insurers.

62More importantly, relative to this issue, the jurisprudence on priority disputes provides that, an insured person can claim entitlement to the enhanced benefits through the insurer they initiate a claim with, regardless of whether the insured person purchased the enhanced benefits from that insurer. The effect in practice is that an insured person who holds more than one auto insurance policy need to purchase enhanced benefits only through one policy because access to the enhanced benefits prevails. In fact, the Financial Services Regulatory Authority of Ontario (“FSRA”) has contemplated the issue regarding multiple policies and issued a policy direction on this practice, stating that the insured person will apply to the provider with better coverage and that provider must accept the claim. However, FSRA assumes that the insured person will initiate their claim for benefits with the optional carrier, considering that their policy will be administered with access to enhanced benefits, regardless of which insurer holds priority. FSRA failed to contemplate that insured people will occasionally err when initiating a claim for benefits and never expressly provided a remedy or practice direction on the issue. As a result, I am left with no codified option to remedy the issue and as a result, turn to the equitable remedy of relief from forfeiture.

CONCLUSION

63The Applicants erred in their initial application for benefits, but the Schedule provides no remedy for the situation. It would be unfair to deprive the Applicants of access to benefits at the level they paid for and are entitled to. As a result, and for the reasons outlined above, I find that the Applicants are entitled to relief from forfeiture with respect to their initial application for accident benefits.

ORDER

64The Applicants’ initial applications for benefits with Economical are rescinded.

65The Applicants are permitted to initiate a claim through Heartland, pursuant to their policy which includes access to enhanced benefits.