24-000622/AABS-PI
Licence Appeal Tribunal File Number: 24-000622/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:
Alia Mohamed
Applicant
and
BelairDirect Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Kameliya Stancheva, Paralegal
For the Respondent:
Gurpreet Singh, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Alia Mohamed (the “applicant”) was involved in an accident on February 5, 2022 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 BelairDirect Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES IN DISPUTE
2According to the case conference report and order (“CCRO”) dated June 7, 2024 the following issues are to be decided:
i. Is the applicant barred from proceeding with her claim for benefits as she failed to submit the application for benefits (OCF-1) within the time prescribed in the Schedule?
ii. Is the applicant barred from proceeding to a hearing because she wilfully made a material misrepresentation when she applied for accident benefits?
iii. Is the applicant barred from proceeding to a hearing for substantive issues (4) and (5) because she failed to attend an insurer’s examination under section 44 of the Schedule?
3The substantive issues (4) and (5) in the CCRO relate to a plan for chiropractic services and a biopsychosocial assessment.
RESULT
4The applicant is not barred from proceeding with her claim for benefits for failing to submit her OCF-1 within the time limits.
5The respondent is not required to pay an income replacement benefit to the applicant because she failed to notify the insurer of a change in a risk material to the contract pursuant to section 31(1)(b) of the Schedule.
6The applicant is barred from proceeding to a hearing with respect to substantive issue (5) for a biopsychosocial assessment because she failed to attend an insurer’s examination under section 44 of the Schedule.
7The applicant may proceed to a hearing for the remaining benefits in dispute.
ANALYSIS
8The CCRO makes it clear that the preliminary issues were to be heard in writing prior to the substantive issues, and if the file is disposed at the preliminary stage, it will be closed and the substantive hearing vacated. However, the applicant’s submissions do not address any of the three preliminary issues. She essentially makes arguments regarding her substantive entitlement to the disputed benefits.
9The substantive issues in dispute include the applicability of the Minor Injury Guideline (“MIG”), entitlement to income replacement benefits (“IRB”), five medical/rehabilitation benefits, interest and an award.
Preliminary issue (i) – failure to submit OCF-1 within the time limits
10Section 32(1) of the Schedule requires an insured person to inform an insurer of their intention to claim accident benefits within seven days of the accident, or as soon as practicable after.
11Pursuant to section 32(5) the applicant is required to submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms.
12Section 34 states that if the insured person does not comply with those time limits, the insured person may still be entitled to benefits if they have a reasonable explanation for the delay.
13Pursuant to section 55(1)1, an insured person may not apply to the Tribunal if they have not notified the insurer of the circumstances giving rise to a benefit or has not submitted an application for the benefit within the times set out in the Schedule.
14Although the issue in dispute was identified as a failure to submit the OCF-1 within the time limits (section 32(5)), the respondent’s arguments on the preliminary issue actually involve the application of section 32(1) – whether the applicant failed to notify the respondent of an intention to claim accident benefits. The respondent submits that section 32(5) is “functionally irrelevant” here, due to the applicant’s failure to inform it about the accident.
15However, that is the very narrow issue before me as outlined in the CCRO. I decline to consider the respondent’s arguments on the applicability of section 32(1) given that the issue is not properly before me. The parties have a right to receive notice of the issues in dispute. It would be procedurally unfair to the applicant to allow the respondent to add an issue in this manner. If the respondent wanted to add a further preliminary issue or request an amendment of the CCRO, it could have filed a notice of motion.
16Therefore, based on the absence of submissions and evidence from the respondent capable of establishing facts relevant to the narrow issue before me, I find that the applicant is not barred from proceeding to a hearing for failing to submit the OCF-1 within the timelines.
Preliminary issue (ii) – material misrepresentation
17Section 31(1)(b) states that the respondent is not liable to pay an IRB if it can establish that the applicant has made a material misrepresentation that induced the insurer to enter into the contract of automobile insurance or who intentionally failed to notify the insurer of a change in a risk material to the contract.
18The respondent submits that the applicant applied for automobile insurance using a Hamilton address but at the time of the accident, the applicant was living at an address in Toronto. The respondent submits that the applicant intentionally failed to notify it of a change of address, which it submits is a change in a risk material to the contract.
19According to the examination under oath (EUO), the applicant testified that she lived at the Hamilton address at the time of the accident, and claimed to have moved to the Toronto address on April 15, 2022, but could not recall when the lease started. As noted above, the applicant’s submissions do not discuss this issue.
The change in risk was material to the contract
20Materiality is not defined in the Schedule. The Court of Appeal in Sagl v. Chubb Insurance Company of Canada, 2009 ONCA 388 held that a fact is relevant or material if it influences an insurer in deciding whether to issue the policy or with determining the premium amount (para. 51).
21I agree with the respondent, that the failure to disclose a change of address is a change in a risk material to the contract. The applicant had an ongoing duty to make full disclosure of material facts relevant to the nature and extent of the risk that the insurer is being asked to assume, including a change of address. The premium for the Hamilton address was $4,685.00 while the premium for the Toronto address would have been $6,555.00, approximately a 40% increase.
The applicant intentionally failed to notify of a material change in risk
22I am persuaded, on a balance of probabilities, that the applicant was living at the Toronto address at the time of the accident, and intentionally failed to notify the insurer of that change.
23The respondent provided the applicant with a certificate of automobile insurance policy for the period from December 1, 2021 to December 1, 2022 with the applicant’s address listed as the Hamilton address. At an examination under oath (EUO) the applicant testified that she lived at the Hamilton address at the time of the accident, and that she only moved to the Toronto address on April 15, 2022. However, both the OCF-1 and the OCF-3 identified her home address as the Toronto address.
24The OCF-1 also notes that the accident occurred when the applicant was “driving into her parking lot at her building located at [Toronto address] when suddenly, she was violently struck by a third party”. The applicant also testified that the accident occurred at the Toronto address, but that she was at that location to pick up a pair of pants from a former coworker. I find it more likely that the applicant was living at the Toronto address and that the description of the accident in the OCF-1 is accurate. The applicant’s submissions at paragraph 6 also indicate that the accident occurred when she was entering the driveway of her apartment complex at the Toronto address.
25The medical and employment records, including a T4 from 2021, also list the Toronto address. The records indicate that the applicant also attended medical appointments prior to the accident at a clinic less than one kilometre from the Toronto address. She provided the Toronto address as her home address to the clinic prior to having moved there in April 2022. Her explanation at the EUO was that she had already paid the deposit on the apartment. That still does not explain why she was seeking treatment at a clinic in Toronto if she was living in Hamilton. Further, during the EUO, the applicant was unable to accurately describe her route to work from the Hamilton address.
26The applicant was ordered to produce several other documents which to date have not been produced, in breach of the CCRO. Those documents include a copy of the rental or lease agreement, utility bills, record of employment, cell phone bills with call details, and paystubs showing address and place of employment. I draw from this the adverse inference that disclosing this information would be detrimental to the applicant’s case.
27On a balance of probabilities, I am persuaded that the applicant was living at the Toronto address at the time of the accident, and intentionally failed to notify the insurer of that change, which was a change in a risk material to the contract. Accordingly, the respondent is no required to pay an IRB to the applicant pursuant to section 31(1)(b).
Preliminary Issue (3) – non-attendance at insurer’s examinations
28Section 44 of the Schedule permits an insurer to examine an insured person by one or more regulated health professionals (or a vocational rehabilitation expert) to determine whether the insured person is, or continues to be, entitled to a benefit. Section 44 provides certain requirements for an insurer to comply with in order to invoke its rights to an insurer’s examination.
29Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under section 44, but the insured person has not complied.
30Sections 55(3) and (4) of the Schedule provide that, despite section 55(1)2, the Tribunal may still permit the application to proceed, with or without terms.
31The CCRO indicates that this preliminary issue related to non-compliance with insurer’s examinations with respect to substantive issues (4) and (5) – which correlates to a plan for chiropractic services dated April 19, 2023, and a biopsychosocial assessment in a plan dated February 28, 2023.
32However, in its submissions, the respondent indicates that the dispute actually involves substantive issues (5) and (6) – for the biopsychosocial assessment and a psychological assessment, and that the applicant should therefore be barred from proceeding with her claims for those plans.
33As noted above, the parties have a right to receive notice of the issues in dispute. The CCRO does not indicate that the respondent was raising a preliminary issue with respect to substantive issue (6) – the psychological assessment. If there was an error in the CCRO or the respondent wanted to amend the issues in dispute, it should have filed a motion. It would be inappropriate for me to consider issues that are not properly before me. Therefore, I have only considered whether the applicant is barred from proceeding with her claim for substantive issue (5) – the biopsychosocial assessment.
Plan for a biopsychosocial assessment dated February 28, 2023
34The respondent submits that upon receipt of this plan, it scheduled an insurer’s examination with a psychologist on three separate occasions, but the applicant failed to attend.
35The respondent provided three notices of examination. The evidence indicates that the applicant failed to attend the assessments. Again, the applicant’s submissions are silent with respect to this issue.
36The applicant does not dispute her non-attendance at the insurer’s examinations, she has not provided an explanation for her non-attendance, nor does she dispute the validity of the notices. Accordingly, I find that the applicant is barred from proceeding with her claim with respect to the psychological assessment pursuant to section 55(1)2 for failing comply with the request for an insurer’s examination.
37Sections 55(3) and (4) of the Schedule provide that, despite section 55(1)2, the Tribunal may still permit the application to proceed, with or without terms. In the absence of any submissions, I decline to exercise this discretion.
ORDER
38The respondent is not required to pay an income replacement benefit to the applicant pursuant to section 31(1)(b) of the Schedule.
39The applicant is barred from proceeding to a hearing with respect to the substantive issue (5) for a biopsychosocial assessment because she failed to attend an insurer’s examination under section 44 of the Schedule.
40The applicant may proceed to a hearing for the remaining issues in dispute.
Released: November 8, 2024
___________________________
Kate Grieves
Adjudicator