Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-005230/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:
Young Jin Sim
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR: Tanjoyt Deol
APPEARANCES:
For the Applicant: Jae Hyon Cho, Counsel
For the Respondent: Kevin So, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Young Jin Sim (the “applicant”) was involved in an automobile accident on July 15, 2020, 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 Aviva Insurance Company, (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The respondent filed a Certificate of Service with the Tribunal on November 14, 2023, which indicated that its submissions were sent to Natasha Vujovic from Aviva, who is not listed as counsel of record for the applicant. It was also unclear whether the applicant provided reply submissions in accordance with the Case Conference Report and Order. Accordingly, the Tribunal reached out to the parties on April 17, 2024, to gain clarity with respect to this.
3On April 17, 2024, the respondent provided evidence that confirms that the applicant’s representative was served with the submissions on November 14, 2023 by email. On April 19, 2024, the applicant’s representative confirmed that no reply submissions had been filed.
ISSUES
4The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $273.00 per week from July 22, 2020, to August 15, 2020?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5The applicant is not eligible for IRB, as such, no interest is payable.
ANALYSIS
The applicant is not eligible for IRB
6I find that the applicant has not met his burden of proof to establish that he is eligible to receive IRB during the period claimed.
7Section 5(1) of the Schedule outlines the eligibility criteria for an IRB. In order to be eligible, an insured person must either be employed at the time of the accident or, if not employed, they must have either worked for at least 26 weeks during the 52 weeks before the accident or must be receiving employment insurance (“EI”) benefits at the time of the accident. The onus is on the applicant to prove, on a balance of probabilities, that he meets the eligibility criteria in order to be entitled to receive an IRB.
8Problematically, the applicant’s submissions largely focused on his injuries, and a summary of the medical evidence, and there were only a few sentences with respect to eligibility. With respect to eligibility, the applicant appears to be submitting that he is eligible for IRB, both because he was receiving EI at the time of the accident and for at least 26 weeks during the 52 weeks period before the accident. To support this position, he relies upon a clinical note and record, of Dr. Sumit Jhas, neurosurgeon, dated July 13, 2021, a s. 25 Orthopaedic Medical Examination by Dr. Tajedin Y. Getahun, Orthopaedic Surgeon, dated October 14, 2022, and a Disability Certificate (“OCF-3”), dated September 16, 2020.
9In response, the respondent argues that there is insufficient evidence to suggest the applicant qualified for IRB in accordance with s. 5(1). It further submits that the applicant is incorrect in his interpretation of s. 5(1)1(ii), as the applicant must demonstrate that he was receiving EI at the time of the accident, not that he was receiving the benefit for at least 26 weeks. Finally, the respondent submits that there is no corroborating financial, employment, or tax documentation to show whether the applicant was receiving EI at the time of the accident or worked for 26 weeks within the 52-week period prior to the accident.
10I agree with the respondent. The onus to prove eligibility to an IRB rests with the applicant and I find that he has fallen well-short of meeting his burden.
11First, the applicant did not provide corroborating documentation to support his submissions that he was receiving EI at the time of the accident, such as income tax returns or an EI file. This alone makes it very challenging for the applicant to establish that he is eligible for IRB.
12Second, the OCF-3, that the applicant relies upon to make his argument, does not even support it. Indeed, upon review of the OCF-3, I note that the “no” box was ticked off in response to whether the applicant was receiving EI at the time of the accident. Therefore, the applicant has not produced any evidence to support his submission that he was receiving EI at the time of the accident. It is well-settled that submissions are not evidence.
13I further acknowledge that the applicant also appears to be submitting that he was receiving EI for at least 26 weeks during the 52 weeks before the accident and relies upon the OCF-3 to support this. However, a plain reading of s. 5(1)1(ii) shows that the applicant must be receiving EI at the time of the accident, as this is clearly indicated in the section.
14With respect, the 26-week period outlined in s. 5(1)1(ii) pertains to pre-accident employment and not EI. Thus, I agree with the respondent that the applicant has to establish he was receiving EI at the time of the accident, not for at least 26 weeks, which I find he has not done so, due to the lack of corroborating documentation.
15Third, the clinical note and record of Dr. Jhas and the s. 25 report of Dr. Getahun do not even support the applicant’s arguments with respect to eligibility. Both documentation makes no reference to whether the applicant was receiving EI at the time of the accident. Instead, both doctors indicated that the applicant was working as a cashier, but it is unclear whether this was prior to the accident or not. In any event, the applicant made no submissions on whether he was eligible for IRB due to his pre-accident employment as a cashier, nor did he at the bare minimum, provide any financial documentation, like an employment file. Consequently, the applicant has not met his evidentiary onus to establish that he worked at least 26 weeks during the 52-week period or was working at the time of the accident.
16As an aside, the respondent made several submissions with respect to s. 36(3), and that the applicant did not provide a completed OCF-3 until after the entitlement period had ended. While I acknowledge these submissions, given my findings above, it is unnecessary to consider this, as I have already determined that the applicant has not established he is eligible for IRB.
17As a result of the above, I find that the applicant has not met his burden to establish that he is eligible for IRB.
The applicant is not entitled to interest
18Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I have determined that no benefits are overdue interest is not payable.
ORDER
19For the above-noted reasons, the applicant is not eligible for IRB, as such, no interest is payable. This application is dismissed.
Released: May 6, 2024
Tanjoyt Deol
Adjudicator