Naji v. Unifund Assurance Company, 2024 CanLII 4276

Licence Appeal Tribunal

Citation: Naji v. Unifund Assurance Company 2024 ONLAT 22-006157/AABS-PI

Licence Appeal Tribunal File Number: 22-006157/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:

Tamou Naji

Applicant

and

Unifund Assurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Michael R. Switzer, Counsel

For the Respondent: Katherine E. Kolnhofer, Counsel Damien Van Vroenhoven, Counsel

HEARD: By way of written submissions

OVERVIEW

1Tamou Naji’s (the “applicant’s”) daughter was involved in an automobile accident on June 19, 2017, and suffered a catastrophic impairment as a result. The applicant claims that she has been psychologically impacted by her daughter’s accident, as her daughter is no longer able to provide attendant care to the applicant, as a result of her own injuries. The applicant claimed entitlement to benefits from the respondent, Unifund Assurance Company, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”), which were denied. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

2At the case conference, the respondent raised a preliminary issue to be addressed at this preliminary issue hearing, prior to a hearing on the substantive issues in dispute.

PRELIMINARY ISSUE IN DISPUTE

3The preliminary issue to be decided is:

i. Is the applicant statute-barred from proceeding with her claim for a non-earner benefit (“NEB”) as she failed to submit her claim by way of a disability certificate (“OCF-3”) within the first 104-weeks post-accident, contrary to section 12(3)(c) of the Schedule?

Result

4The applicant is barred from proceeding with the issue of NEBs due to her failure to submit her OCF-3 within the timelines prescribed by the Schedule.

Clarification of preliminary issue in dispute

5The Case Conference Report and Order (“CCRO”) dated March 15, 2023 identified the preliminary issue in dispute as being the issue stated in para 3i above. In its reply submissions, the respondent argues that the applicant in her submissions for this hearing, has improperly identified the preliminary issue and that the entirety of her submissions fail to address the issue in dispute. It contends that the applicant’s submissions solely relate to non-attendance at s. 44 assessments. However, the respondent submits that the CCRO ordered a preliminary issue hearing solely on the issue of the failure to submit a claim for NEBs within 104-weeks post-accident.

6Upon review of the CCRO, I agree with the respondent that the sole preliminary issue before me is whether the applicant is barred from pursuing her NEB claim, as a result of her failure to submit her OCF-3 within 104-weeks post-accident. This is clearly identified in para 6(1)(i) of the CCRO. While the adjudicator noted in para 4 that the respondent had raised two preliminary issues at the case conference, including the issue of s. 44 non-attendance, para 6 is clear in stating that only one preliminary issue was being set for this preliminary issue hearing, namely the failure to make a claim for NEBs within 104-weeks post-accident. The additional preliminary issue listed as number 2 in the CCRO was to be heard with the substantive issues at the substantive hearing.

7Upon review of the applicant’s submissions, I note that they identify multiple issues in dispute relating to non-attendance at s. 44 assessments. However, none of these issues were set down for a preliminary issue hearing at the case conference. In her submissions, the applicant did not explain why she was not addressing the preliminary issue in dispute, or why she was raising entirely different issues. Prior to filing her submissions, the applicant would have been in receipt of the respondent’s submissions, which clearly addressed the preliminary issue in dispute. To the extent that the applicant disagreed with the characterization of the preliminary issue in dispute in the CCRO and in the respondent’s submissions, it was open to the applicant to bring a motion to amend or clarify the issue. She did not do so.

8As such, I agree with the respondent that at the present preliminary issue hearing, the sole issue before me is whether the applicant is barred from pursuing her NEB claim, as a result of her failure to submit her claim within the 104-week entitlement period stipulated in s. 12(3)(c) of the Schedule.

ANALYSIS

9Section 12 provides that an insurer shall pay a NEB to an insured person who sustains an impairment as a result of an accident and suffers a complete inability to carry on a normal life as a result of that accident within 104 weeks. Sections 12(3)(a) and (c) further state that the insurer is not required to pay a NEB for the first four weeks after the onset of the disability and for any period more than 104 weeks after the accident.

10Section 36(2) of the Schedule provides that an insured person must submit a completed OCF-3 with her application for NEBs. Section 36(3) disentitles an applicant to NEBs for any period before the completed disability certificate is submitted.

11The applicant does not dispute that her daughter’s accident took place on June 19, 2017, and that her OCF-3 was completed on May 12, 2020. The respondent submits that it received the OCF-3 on June 2, 2020, almost three years after the date of the accident. It argues that since the OCF-3 was submitted well after the 104-week entitlement period to NEBs expired, the applicant is barred from proceeding with her claim for NEBs.

12The respondent relies on Tribunal decisions K.A. v. Intact Insurance Company, 2020 CanLII 94779 (ONLAT), Wu v. Aviva General Insurance, 2023 CanLII 93015 (ONLAT), and Habte v. Aviva General Insurance Company, 2021 CanLII 43551 (ONLAT), in support of its claim that failure to provide an OCF-3 within the 104-week entitlement period bars an insured from claiming NEBs.

13The respondent further cites K.A. v. Intact, where the Tribunal followed the binding Superior Court decision in Volpe v. Co-operators Gen. Ins. Co., 2017 ONSC 261, and found:

[Section] 36 provides no exceptions to the above requirement that an insured seeking a NEB must submit a completed OCF-3 and that an insurer is not required to make payment until that application is complete. I further agree that the language is compulsory: s. 36 statutorily-bars an applicant’s claim where the OCF-3 was submitted following the 104-week period of NEB eligibility provided by s. 12.

14The applicant has not provided any submissions on the issue of her failure to submit her OCF-3 within 104-weeks of the accident, or the respondent’s position that s. 12(3)(c) and s. 36 of the Schedule act as a bar from the applicant pursuing her NEB claim.

15I find the reasoning in K.A. v. Intact to be persuasive, and agree with the respondent that the language in s. 36 of the Schedule is compulsory. As such, I find that the applicant is barred from pursuing her claim for NEBs as she did not submit her OCF-3 within the timelines prescribed by the Schedule.

COSTS

16In its submissions, the respondent requests costs pursuant to Rule 19 of the Tribunal’s Rules, for the preliminary issue hearing plus 50% of its full costs of the Tribunal application to date. Under Rule 19, the Tribunal may order costs where one party has acted unreasonably, frivolously, vexatiously or in bad faith. The respondent argues that the NEB claim is unreasonable and frivolous, in the face of decisive case law and that the applicant’s failure to address the preliminary issue in dispute is further evidence of unreasonable and frivolous conduct.

17I find that the respondent has not met the test set out in Rule 19. Although I have found that the applicant is barred from pursuing her NEB claim, I fail to see the applicant’s decision to bring forward the claim as serious misconduct that is unreasonable, frivolous, vexatious or in bad faith. As such, I am not persuaded that the high threshold for costs has been met.

CONCLUSION AND ORDER

18The applicant is statute-barred from proceeding with her claim for NEBs pursuant to s. 12(3)(c) and s. 36(3) of the Schedule.

19Pursuant to the CCRO, the Tribunal will reach out to the parties to schedule a telephone case conference resumption in order to schedule a hearing on the remaining preliminary issue of s. 44 non-attendance and the substantive issues in dispute.