Licence Appeal Tribunal File Number: 21-013994/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:
Christina Boutros
Applicant
and
Allstate Canada
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
Michael R. Switzer, Counsel
For the Respondent:
Peter Yoo, Counsel
HEARD BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1Christina Boutros (the “applicant”) was involved in a motor vehicle accident on March 8, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Allstate Canada (the “respondent”) denied a claim for non-earner benefits (“NEB”). The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
Is the applicant entitled to NEB of $185.00 per week from April 4, 2019 to March 3, 2021?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant is not entitled to NEB. As there are no benefits owing, no interest is payable. The application is dismissed.
ANALYSIS
The Applicant is Not Entitled to Non-Earner Benefits (“NEB”)
4I find that the applicant is not entitled to NEB, as she has not submitted a completed OCF-3, nor has she demonstrated that she suffered from a complete inability to carry on a normal life. It follows that as no benefits are owing, no interest is payable.
5Section 12(1) of the Schedule provides that an insurer shall pay NEB to an insured person who sustains an impairment as a result of an accident if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for the NEB entitlement test in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which generally requires a comparison of the applicant’s pre- and post-accident activities.
6Section 36(2) of the Schedule requires an applicant claiming a specified benefit such as NEB to “submit a completed disability certificate with his or her application.” And s. 36(3) holds 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.”
7The applicant extensively references Heath in her written submissions and argues that she meets the NEB entitlement test. Specifically, she claims that injuries sustained as a result of the subject accident have left her unable to continue to participate in the activities of normal life either at all or in “any meaningful way” post-accident.
8The respondent counters that the applicant failed to submit a completed Disability Certificate/OCF-3 relating to her NEB claim within 104 weeks of the accident, as required under s. 36(2) of the Schedule. This then triggers s. 32(3), which establishes that an applicant claiming a benefit such as NEB is not entitled to it for any period before a Disability Certificate has been submitted. As a result, the applicant is not entitled to NEB. In addition, the respondent argues that the applicant has failed to adduce sufficient evidence to support entitlement to NEB.
9I agree with the position of the respondent regarding both the OCF-3 and the applicant’s failure to support her NEB claim with substantive evidence.
10First, to address the OCF-3 issue. I accept the argument of the respondent, as it provided a copy of the applicant’s OCF-3 with its submissions that shows the form was faxed to the insurer on April 20, 2021, after the April 4, 2019 to March 3, 2021 NEB period being disputed. The applicant does not contest this in her initial submissions, although she does submit the same OCF-3 as adduced by the respondent. In addition, there is no evidence before me to indicate that another OCF-3 was filed regarding this accident. The applicant has not filed reply submissions, either, leaving the position of the respondent on the OCF-3 date unchallenged.
11As a result, I find that the applicant is in contravention of s. 36(2), which mandates that an applicant claiming a benefit such as NEB file a completed OCF-3 with a Tribunal application. This then means that she is not entitled to NEB pursuant to s. 36(3), as the OCF-3 was submitted more than one month after her NEB entitlement period ended.
12Second, the applicant has not sufficiently supported her NEB claim with evidence that meets the test as established by Heath.
13There is little in the applicant’s written submissions to corroborate her position that accident-related injuries have left her completely unable to participate in the activities of normal life. Nor are her submissions organized in such a fashion that the applicant’s argument is readily apparent. The applicant references the respondent’s reasons for denying NEB, features almost two full pages quoting Heath, and then wraps everything up with two paragraphs that do not refer to any specific evidence.
14Instead of an argument with specific citations of evidence, the applicant closes written submissions in these paragraphs with general comments. The applicant notes that an attached affidavit of the applicant details the activities of daily living that the applicant was unable to participate in post-accident, without reference to any precise sections of this affidavit. Then the applicant lists the names of five medical experts who provided some 400 pages of reports, and notes that the sections of these documents most pertinent to the NEB dispute have been highlighted in yellow. While these highlighted sections are tabbed and easy to locate in the documents, no written argument, direction, or context is provided describing how and why the applicant believes that these highlights are relevant to her NEB claim.
15An applicant cannot submit evidence in this fashion in the hopes that an adjudicator will then connect the dots and build her case. An applicant must make her own argument and reference specific evidence when it comes to meeting the NEB test as established in Heath, primarily by providing details of her activities pre- and post-accident and how her accident-related impairments impacted on these activities.
16Accordingly, the applicant has not met her evidentiary burden and is not entitled to NEB, nor interest.
ORDER
17The applicant is not entitled to NEB, nor interest.
18The application is dismissed.
Released: February 8, 2024
Brett Todd
Vice-Chair