Smith v. Certas Direct Insurance Company
Licence Appeal Tribunal File Number: 23-011421/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:
Owen W. Smith
Applicant
and
Certas Direct Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Kim Mohammed-Sieudhan, Paralegal
For the Respondent:
Kristofer B. Angle, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Owen W. Smith (“the applicant”) was involved in an incident on July 12, 2021 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 Certas Direct Insurance Company (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is:
i. Is the applicant barred from proceeding to a hearing for all of the benefits claimed in this application because the applicant failed to answer questions during an exam under oath under s.33(1) of the Schedule?1
RESULT
3The applicant may proceed to a hearing.
ANALYSIS
4The respondent submits that Rule 3.4 of the Licence Appeal Tribunal Rules, 2023 and section 4.6(1)(b) of the Statutory Power Procedures Act (“SPPA”) provide the Tribunal with the discretion to dismiss a proceeding that relates to matters that are outside its jurisdiction or where some aspect of the statutory requirements for bringing a proceeding has not been met. The respondent submits that the Tribunal does not have jurisdiction to make a determination on the applicant’s substantive entitlement to benefits given the application of s. 33(6) of the Schedule. While the applicant attended at the examination under oath, he refused a number of questions that the respondent submits are relevant. The respondent submits that the applicant has therefore failed to “submit to” an EUO pursuant to section 33(2), therefore a statutory requirement before proceeding to the Tribunal has not been met. For the reasons that follow, I disagree with the respondent.
5Pursuant to section 33(2) an applicant is required to submit to an examination under oath if requested by an insurer. However, the consequence for non-compliance with section 33 is set out in section 33(6) -- that an insurer does not have to pay a benefit during the period of non-compliance.
6Section 55 of the Schedule identifies circumstances when an applicant is barred from applying to the Tribunal for resolution of a dispute. Section 55 does not prohibit an applicant from proceeding with a claim for non-compliance with section 33.
7If the applicant subsequently complies with the section 33 request, then the respondent is required to resume payment of a benefit, and shall pay all amounts that were withheld during the period of non-compliance if the applicant provides a reasonable explanation for the delay in complying with the subsection (section 33(8)).
8The narrow issue before me is whether the applicant is barred from proceeding to a hearing. I disagree with the respondent, I do not have the authority to preclude the applicant from applying to the Tribunal due to non-compliance with section 33(2). A failure to comply with the obligations under section 33 relieves the respondent of its obligation to pay for the benefits during the period of non-compliance. It is not a bar to a hearing, it is a defence with respect to its obligation to pay. The hearing adjudicator may find that the respondent is not liable to pay the disputed benefits pursuant to section 33(6), however that is not the issue before me. Nothing prevents the respondent from raising non-compliance with section 33 as a defence at the substantive issue hearing.
ORDER
9The applicant may proceed to a hearing.
Released: May 10, 2024
Kate Grieves
Adjudicator