Licence Appeal Tribunal File Number: 20-014731/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:
Jun Hong
Applicant
and
Motor Vehicle Accident Claims Fund (MVACF)
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Yu Jiang, Paralegal
For the Respondent:
Marlett Dobson, Counsel
HEARD:
By way of written submissions
BACKGROUND
1The applicant, Jun Hong (“J.H.”), was involved in an automobile accident on November 23, 2019, and sought benefits from the respondent, MVACF, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). J.H. applied for certain benefits, including a non-earner benefit (“NEB”) and various treatment and assessment plans. MVACF denied the claim for a NEB on the basis that J.H. failed to establish entitlement to the benefit for the claimed period. J.H. disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
2Is J.H. entitled to a NEB of $185.00 per week from December 22, 2019 to October 16, 2020?
3Is J.H. entitled to interest on any overdue payment of benefits?
Resolved/Settled Issues
4In an email to the Tribunal, dated March 29, 2022, J.H. confirmed that the parties had resolved issues numbered 2-7, as listed in the June 11, 2021 Tribunal Order. He confirmed that the remaining issue in dispute is the NEB and interest on any overdue payment of the benefit.
5Accordingly, this decision will focus on the claim for a NEB and interest.
RESULT
6J.H. is not entitled to a NEB as he has not established entitlement to the period claimed prior to submitting a disability certificate. No interest is payable.
ANALYSIS
NEB – s. 36
7Section 36 sets out the process for claiming a NEB. Section 36(3) provides that the entitlement period for a NEB commences once the completed Disability Certificate (OCF-3) is received. Essentially, the regulation establishes that an insured who fails to submit a complete OCF-3 is not entitled to a NEB for any period before the completed OCF-3 is submitted. On a plain reading of the Schedule, s. 36 does not provide any exception to the requirement that an insured applying for a NEB must submit a completed OCF-3. Further, an insurer is not required to make any payment until the application is complete. In this sense a “complete application” includes a completed OCF-3.
8On the evidence, J.H. has not established that he is entitled to a NEB for the period of December 22, 2019 to October 16, 2020 due to his failure to submit a complete application during the relevant period.
9The following sets out the timeline of J.H.’s filing of his claim for an NEB:
a. February 7, 2020 – an application is sent to MVACF;
b. February 14, 2020 – MVACF acknowledged receipt of the application;
c. March 2, 2020 – an adjuster from ClaimsPro advised J.H. that the application was incomplete (an incorrect version of the Notice of Collection and MVACF application were used);
d. March 26, 2020 – correspondence from ClaimsPro advising that the application was incomplete;
e. March 27, 2020 – J.H. provided the completed and revised forms;
f. July 20, 2020 to September 24, 2020 – correspondence regarding obtaining police, hospital records and acknowledgements of treatment plans;
g. October 14, 2020 – (the next notable entry) – correspondence from ClaimsPro advising J.H. that his application was deemed complete and enclosing a blank OCF-3; and
h. October 16, 2020 – J.H. provided an OCF-3 dated November 28, 2019.
10As noted, the OCF-3 was dated November 28, 2019 and submitted to MVACF on October 16, 2020. There is no dispute on these facts. I note in J.H.’s submissions that he does not argue that the OCF-3 was submitted at any other time prior to October 16, 2020. MVACF wrote J.H. on January 4, 2021 advising him that he was entitled to a NEB. The letter further states that the NEB is not payable before the OCF-3 was received, that being October 16, 2020.
11I agree with MVACF. The provisions set out in s. 36 are clear, unambiguous, and do not provide an exception. The language is compulsory, that, pursuant to s. 36(3), entitlement to the NEB commences upon receipt of a completed OCF-3. Further, there is no provision for a reasonable explanation for the late submission of an OCF-3. Regardless of the reason(s) that an OCF-3 may have been filed late, an insurer is not required to make any payment prior to the receipt of the OCF-3. The provisions set out in s. 36 are mandatory, and a failure to comply means that an insurer is not liable to pay the benefit as a result of non-compliance.
12I would add that the date of the OCF-3 is also of no consequence and does not put any onus on an insurer to pay the benefit. It is not the date of the OCF-3, but specifically, the date of submission. Put another way, the relevant date, that being the start of the date of entitlement to a NEB (or other specified benefit) is the date the completed OCF-3 is submitted to the insurer. An applicant’s rights are paramount because of the consumer protection nature of the regulation. However, an insurer’s rights are not necessarily secondary, unless due to the non-compliance of an applicant, then the insurer’s rights are paramount. In such a case, the Schedule is then insurer safeguard legislation.
13Although J.H. was given the opportunity of reply, he did not direct me to any argument or evidence that MVACF requested an OCF-3 prior to October 14, 2020. As such, I am unable to make a finding that MVACF somehow delayed or impacted the process of J.H.’s ability to make a claim for a NEB by not requesting an OCF-3 until almost one-year post-accident. Therefore, MVACF’s position and determination remains uncontested. I see no reason to interfere with MVACF’s determination on the NEB issue.
14For the reasons set out above, J.H. is not entitled to a NEB for any period prior to the submission of the OCF-3, being October 16, 2020.
CONCLUSION
15J.H.’s claim for a NEB is dismissed as he has not established entitlement to a NEB before October 16, 2020 in accordance with s. 36(3) of the Schedule.
Released: February 13, 2023
Derek Grant
Adjudicator