Licence Appeal Tribunal File Number: 24-002844/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:
Sonia Marchese
Applicant
and
CAA Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Lawson Hennick, Counsel
For the Respondent:
Ken Yip, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Sonia Marchese (the “applicant”) was involved in an accident on October 13, 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 CAA 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 with her claim for a non-earner benefit (NEB) of $185.00 per week from November 13, 2021 to July 20, 2023 because she failed to submit a completed disability certificate (OCF-3) until July 21, 2023?
RESULT
3The applicant is not entitled to non-earner benefits from November 13, 2021 to July 20, 2023.
ANALYSIS
Background
4The applicant was involved in an accident on October 13, 2021. She reported the accident to the respondent, and it sent an accident benefits package to her the following day. The applicant submitted a completed application for accident benefits (OCF-1) dated November 2021.
5By letter dated December 9, 2021 the respondent acknowledged receipt of the OCF-1 and provided a response advising her of the various benefits for which she may be eligible, including the NEB. The letter set out the requirements in order to qualify for the benefit, indicates that it is payable at the rate of $185.00 up to a maximum of 104 weeks, and the first 4 weeks are not payable. The letter indicates: “please submit a completed disability certificate (OCF-3) for CAA Insurance to review your entitlement to this benefit.”
6On May 19, 2022, the respondent advised the applicant’s representative that it had not received an OCF-3 to date. A copy of the complete accident benefits file was provided to the representative on July 14, 2022.
7The parties agree that the first OCF-3 was submitted on July 21, 2023.
The Law and Parties’ Positions
8Section 36(2) of the Schedule requires that an applicant seeking a specified benefit, which includes NEB, shall submit a completed disability certificate with the application. Section 36(3) states that no specified benefits are payable for any period before the OCF-3 is submitted.
9The respondent submits that the applicant is not entitled to non-earner benefits from November 13, 2021 to July 20, 2023 given that the OCF-3 was not submitted until July 21, 2023.
10The applicant submits that she should be entitled to the benefits because the Schedule is consumer protection legislation, and if the respondent intended to rely on provisions in the Schedule to deny her benefits, it had an obligation to cite the sections of the Schedule, notify the applicant of the time limits to comply with the process, and consequences for failing to do so.
The applicant is not entitled to an NEB
11I agree with the applicant that the Schedule is consumer protection legislation and should be given a broad and liberal interpretation. The Schedule sets out a code for administering and adjudicating no-fault accident benefits claims. It sets out the rights and obligations of both insureds and insurers, from initiating documents to start a claim, to the consequences of a failure to comply with those obligations in a timely manner. The obligations on the parties are mutual. No level of broad or liberal interpretation can assist an insured who does not meet their obligations.
12The applicant relies on a Tribunal decision in Elkhidir v. Intact Insurance Company, 2023 CanLII 1449 (ON LAT) (“Elkhidir”) in support of her submission that the insurer had an obligation to cite sections 36(3) of the Schedule in its correspondence to the applicant in order to rely on it to deny a claim. While not binding on me, I disagree that Elkhidir stands for that proposition. Nowhere in Elkhidir does the adjudicator state that the respondent had an obligation to cite the section of the Schedule. It was simply an observation in that case that the insurer had cited the sections of the Schedule as rationale for its requests.
13The respondent met its obligation to inform the applicant of the application process, as required by section 32(2), in its letter dated December 9, 2021. While the respondent could have cited the regulation as the insurer did in Elkhidir, there is no requirement in the Schedule that it do so.
14The Schedule is clear, that no NEB is payable for any period prior to the submission of the OCF-3. I disagree with the applicant’s suggestion that she was not informed of the requirement to submit an OCF-3. The initial explanation of benefits letter clearly set out what was required in order to qualify for the benefit, and requested that she submit an OCF-3 for the respondent to review her entitlement to the benefit. The applicant also retained legal counsel within a few months of the accident who was also advised that an OCF-3 had not been submitted. There is no explanation why the applicant waited until July 2023 to submit her OCF-3. If the applicant truly expected that the NEB would be paid at the rate of $185.00 a week without submitting the requested OCF-3, then I would have expected that she or her representative would have taken some action after not receiving payments prior to July 2023.
15Section 36 is clear that an NEB is not payable prior to the submission of a completed OCF-3. Accordingly, I find that the applicant is not entitled to non-earner benefits for the period in dispute, prior to the submission of the OCF-3.
ORDER
16The applicant is not entitled to non-earner benefits from November 13, 2021 to July 20, 2023.
17The application is dismissed.
18The Tribunal shall vacate any date that has been scheduled for the substantive issue hearing.
Released: December 16, 2024
Kate Grieves
Adjudicator