Licence Appeal Tribunal File Number: 24-000103/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:
Yanhong Liu
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR: Melanie Malach
APPEARANCES:
For the Applicant: Vanessa Liang, Counsel
For the Respondent: Jaclyn Kram, Counsel
HEARD: By way of written submissions
OVERVIEW
1Yanhong Liu, the applicant, was involved in an automobile accident on January 5, 2019, 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 the respondent, Security National Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from January 12, 2019 to December 25, 2024, less the amount paid?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
3The Case Conference Report and Order dated June 28, 2024, lists issue 1 as, “Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from January 12, 2019 to date and ongoing?” On January 17, 2025, counsel for the applicant advised the Tribunal that she was limiting her claim for entitlement to income replacement benefits (“IRBs”) from November 15, 2019 to the stoppage date. The respondent did not dispute this. I therefore have amended the issue in dispute.
RESULT
4I find that the applicant was paid an IRB from January 12, 2019 to November 14, 2019. I find that the applicant is not entitled to IRBs from November 15, 2019 to December 25, 2024.
5I find that the applicant is not entitled to interest or an award.
ANALYSIS
Entitlement to Income Replacement Benefits
Background
6The applicant submits that as a result of the accident on January 5, 2019, she was unable to return to work at her full capacity and claimed entitlement to an IRB.
7The applicant retained the services of SLS Personal Injury & Employment Lawyers (“previous legal representative”) to represent her for her accident benefits claim. On February 14, 2019, her previous legal representative sent a fax to the respondent enclosing the applicant’s Application for Accident Benefits (“OCF-1”) and Employer’s Confirmation Form (“OCF-2”).
8The OCF-1 dated January 24, 2019, lists the applicant’s employment at Jing Yi Glass and Mirror Inc. (“JYGM”) as admin payroll from September 1, 2017 to present. She worked 40 hours per week and earned $32,000.00 gross income for the period. The OCF-1 lists her address in Richmond Hill.
9The OCF-2 from JYGM indicates that she was employed in admin/accounting from June 1, 2017 to present. Her income in the last four weeks prior to the accident was $3,200.00 in week 1. Her income was listed as zero in weeks 2, 3 and 4. The OCF-2 lists her address in Richmond Hill.
10On April 23, 2019, Markham Health Care Clinic faxed the respondent a completed Disability Certificate (“OCF-3”), dated January 23, 2019, supporting her entitlement to an IRB. The OCF-3 lists her address in Richmond Hill.
11On April 25, 2019, the respondent responded to the OCF-3 and advised the applicant that there was no medical documentation to support a substantial inability to perform the essential tasks of her employment and requested that the applicant attend s. 44 Insurer’s Examinations (“IE”). On April 26, 2019, the respondent sent the applicant a letter requesting financial and medical documentation pursuant to s. 33 of the Schedule to be provided by May 24, 2019. This letter also provided the applicant with the details of the s. 44 IE assessments. This letter was sent to the applicant’s Richmond Hill address.
12By letter dated June 5, 2019, the respondent advised the applicant that it had determined she was entitled to IRBs based on the IEs completed. The letter references the April 26, 2019 letter and advises that the applicant had failed to provide the s. 33 information requested and no benefit is payable until it receives the requested information. This letter was sent to the applicant’s Richmond Hill address.
13By letter dated October 31, 2019, the respondent advised the applicant that the information requested under s. 33 on June 5, 2019, had not been received and her IRB would be suspended effective November 15, 2019. This letter was sent to the applicant’s Richmond Hill address.
14The applicant submits that she followed up with her previous legal representative on February 1, 2019, July 25, 2020 and December 9, 2021 regarding her IRB claim.
15The respondent submits that between January 8, 2020 and August 19, 2021, it left several voicemails with the applicant’s previous legal representative to discuss the applicant’s claim including the IRB suspension. On December 9, 2021, the applicant’s previous legal counsel called the respondent to inquire about potential settlement of the claim. No further communication ensued.
16On February 10, 2022, the respondent advised the applicant that it had not heard from her and requested an update on her status. She was advised that if a response was not provided within 14 days, her file would be closed. On March 9, 2022, the applicant was advised that her claim was closed. These letters were sent to the applicant’s Richmond Hill address.
17On April 20, 2023, new counsel for the applicant advised the respondent that it has been retained to represent the applicant and requested a complete copy of the Accident Benefits file (“AB file”). On May 1, 2023, July 24, 2023, and October 24, further requests were made for a copy of the AB file. The applicant submits that a copy of the AB file was finally delivered to the applicant’s new counsel on November 7, 2023.
18The respondent states that the complete AB file and summary of benefits paid to date was sent to the applicant’s new counsel by email on July 26, 2023. Despite this, a second copy of the AB file was sent again on November 7, 2023, after receiving counsel’s request on October 24, 2023.
19The applicant submits that upon receipt and review of the complete AB file, the applicant realized the s. 33 non-compliance. On November 14, 2023, the applicant emailed the respondent all of her Records of Employment (“ROE”), Notices of Assessments (“NOA”) and T1’s from 2018 to 2022 in compliance with the respondent’s s. 33 requests.
20The respondent submits that the ROEs produced were from JYGM dated April 24, 2019 and March 16, 2021 and from SunTea dated March 15, 2023. The ROEs note the reasons for issuance was “Maternity”. The ROEs from JYGM and the NOAs and T1s note the applicant’s address as the Richmond Hill address.
21On March 26, 2024, the applicant was advised that her financial documents were received. Further s. 33 requests were made based on the aforementioned information received including the Employment and Social Development Canada File (for Employment Insurance and Maternity Benefits received) as well as paystubs and medical records. On March 28, 2024, the applicant’s counsel resent the financial documents sent on November 14, 2023 via fax.
22On April 19, 2024, the respondent advised the applicant that it calculated her IRB based on the NOA for 2018 which stated that her income was $51,004.00. It notes that in 2019, she received maternity benefits in the amount of $20,087.70 for the year and therefore this was deducted from her entitlement for the period. It calculated her IRB entitlement from January 13, 2019 to November 14, 2019, and issued a payment in the amount of $5,715.50, inclusive of interest. The letter further requests that in order for the IRB to be considered beyond November 15, 2019, a reasonable explanation for the delay in receiving an updated OCF-3, as requested in its letter dated June 5, 2019, be provided.
23By letter dated April 29, 2024, the applicant’s counsel outlined the reasons for the s. 33 non-compliance which included issues with her prior counsel, address issues, and the respondent’s delay for not providing the AB file. The letter sets out that the applicant’s previous legal representative never advised her about the June 5, 2019 letter or assisted her in gathering her financial documents, so she was unaware of the requested financial documents or that her IRB was suspended due to non-compliance. The letter states that the applicant moved to Aurora to live with her husband and no longer lives at the address where the respondent has been sending her letters. The letter argues that despite numerous requests of the respondent, it did not provide her office with the complete AB file until November 7, 2023. The letter also advises that no updated OCF-3 was requested in the respondent’s letter dated June 5, 2019.
24By email dated June 11, 2024, applicant’s counsel served an IRB Accounting Report dated May 31, 2024, which calculated the applicant’s IRB to be $35,283.93 as of May 31, 2024. It was subsequently sent again to the respondent by email dated July 5, 2024.
25By letter dated July 10, 2024, the respondent advised the applicant that her IRB was paid for the period from January 13, 2019 to November 14, 2019 at $5,696.85 plus interest of $18.65 and that her IRB was suspended from November 15, 2019 to March 28, 2024. The respondent stated, “In review of the reasons for the delay, it appears that there were communication challenges between you and your former legal representative which we cannot accept as a “reasonable explanation” for this rather lengthy delay.” The letter further outlined that as of January 5, 2021, the test for IRB has changed from substantive inability to work in her pre-accident occupation to a complete inability to work in any occupation under s. 6(2)(b) of the Schedule. It noted that the file did not contain an updated OCF-3 or medical evidence to support that she suffered a complete inability to work. It further advised that the employment/income information on file indicates that she was able to hold jobs following the accident, albeit they were interrupted by maternity leaves.
26On September 23, 2024, the applicant was advised by the respondent that it had not received any other communication as to the documents requested in its July 10, 2024 letter or an updated OCF-3. She was advised that assessments were being arranged to determine if she met the post-104 week test.
27By letter dated September 27, 2024, the applicant advised the respondent that her financial documentation was actually sent on November 14, 2023. The applicant also pointed out that there had been no stoppage of IRBs since her entitlement was approved by an IE and advises that the respondent never requested an updated OCF-3 and an OCF-3 is no longer relevant as the test of IRB post-104 weeks after the accident changed.
28On October 1, 2024, the respondent requested that the applicant attend IEs to determine her post 104-week IRB eligibility. By letter dated December 11, 2024, the respondent advised the applicant that her entitlement to IRBs would be stopped effective December 25, 2024, and that it maintained its position regarding the IRB suspension between November 15, 2019 and March 28, 2024 due to her non-compliance with s. 33 of the Schedule.
Did the applicant comply with s. 33 of the Schedule or provide a reasonable explanation for the delay?
29Section 36(4) to (8) and s. 37 of the Schedule, provide that an insurer shall within 10 business days of receiving an application for income replacement benefits and a completed Disability Certificate, pay the specified benefit or give the applicant notice that the applicant is not entitled to the benefit. If the insurer requires additional documentation and/or an examination under s. 44 relating to the benefit, the insurer must advise the applicant of the requirement for documentation and/or an examination.
30Pursuant to s. 33(1) of the Schedule, the applicant is required to provide the insurer within 10 business days after receiving the request from the respondent, any information that is reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.
31Section 33(6) of the Schedule states that the respondent is not liable to pay a benefit in respect of any period during which the applicant fails to comply with the request.
32Section 33(8)(b) of the Schedule provides that the respondent shall resume paying a benefit and pay all amounts withheld during the period of non-compliance, if the applicant provides a reasonable explanation for the delay in complying with the section.
33The interpretation of a “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada, 2003 ONFSCDRS 92 and was more recently reiterated in K.H. v. Northbridge, 2019 CanLII 101613 (ON LAT). The guiding principles are summarized as follows:
a. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.
b. The onus is on the insured person to establish a “reasonable explanation”.
c. Ignorance of the law is not a “reasonable explanation”.
d. The test for “reasonable explanation” is both a subjective and objective test that should take into account of both personal characteristics and a “reasonable person” standard.
e. The lack of prejudice to the insurer does not make an explanation automatically reasonable.
Parties Submissions
34With respect to the period from November 15, 2019 to November 14, 2023, the applicant submits that the financial documents required to determine her eligibility and quantum were provided to the respondent on November 14, 2023. She submits that she provided a reasonable explanation for failing to comply with the s. 33 requests as set out in her counsel’s letter dated April 29, 2024. She claims that she had communication difficulties with her previous legal representative and was left in the dark about what was happening with her claim. She submits that the Richmond Hill address is her mother’s address and that she moved to King City on January 2, 2019, as set out in the lease agreement provided. She therefore submits that she did not receive the s. 33 request letters from the respondent requesting financial documentation.
35The applicant further submits that the s. 33 non-compliance would have been rectified sooner had the respondent not delayed in providing the complete AB file requested on April 20, 2023, until November 7, 2023. The applicant further submits that the respondent then failed to provide a response to the submitted financial documents until April 19, 2024. This is despite the Adjuster’s Log Note dated January 17, 2024, which indicates that the adjuster was reviewing the NOAs and ROEs that the applicant had provided.
36The applicant further submits that failing to provide the required financial documentation does not disqualify her from entitlement to an IRB. She submits that as she has provided a reasonable explanation for the delay in providing her financial documentation, payment of her IRBs during the suspension period should be made. In addition, she submits that as soon as the financial documentation was provided on November 14, 2023, the respondent was required to calculate her IRB and make payments from that date, pursuant to s. 33(8)(a) of the Schedule.
37The respondent submits that it made reasonable requests under s. 33 for financial and medical documentation to determine eligibility and quantum of IRBs on April 26, 2019 and June 5, 2019. Though an OCF-2 and OCF-3 were received, the OCF-2 noted income of $3,200.00 for week 1 in the last four weeks prior to the accident and was not accompanied by paystubs or other financial documents substantiating pre-accident income to calculate IRB quantum. The OCF-2 alone was not sufficient to calculate IRB quantum. The respondent submits that the financial documents were finally sent on November 14, 2013 via email contrary to s. 64 of the Schedule and later sent by fax as prescribed under s. 64 on March 28, 2024.
38The respondent submits that the applicant’s explanation for the s. 33 non-compliance is not reasonable for the 59-month delay in providing the financial documents required to confirm entitlement and quantum of IRBs. The respondent submits that her explanation regarding the issues with her address and her prior legal representative are not reasonable. The respondent submits that the applicant testified at her Examination Under Oath that the Richmond Hill address was her mother’s address, but she lived in King City and then moved to Aurora. She testified that she did not change her address on her driver’s licence nor did she advise her previous legal representative or the respondent of her proper address. The applicant alleges that she did not receive the April 26, 2019, June 5, 2019 and October 31, 2019 letters because she did not live at the Richmond Hill address at the time of the accident or when the letters were sent. The respondent argues that the applicant provided the Richmond Hill address on the executed OCF-1 and OCF-2 submitted and on various income tax and financial documents from 2018 up until 2021. The respondent submits that the April 26, 2019 letter sent to the applicant provided the details of the s. 44 IE assessments which she attended. In addition, the applicant’s email to her previous legal representative on March 23, 2022, states that she had received a letter from the insurance adjuster advising her claim was closed. Her email dated May 6, 2022, states that she had received a letter saying entitlement to benefits will be suspended. The respondent therefore submits that the evidence supports that the applicant received the letters sent to the Richmond Hill address.
39The respondent submits that despite the applicant’s alleged issues with her prior counsel, she did not retain new counsel until April 20, 2023. In addition, the applicant never followed up directly with the respondent regarding her IRB claim despite reported issues with her prior counsel.
40Regarding the applicant’s explanation of delay due to the respondent not providing the complete AB file, the respondent submits that there was no delay. The AB file was sent on July 26, 2023 and resent on November 7, 2023, after counsel alleged that she had not received it.
The applicant did not provide a reasonable explanation for the delay
41I find that the respondent properly suspended the applicant’s IRBs on November 15, 2019 pursuant to s. 33(6) of the Schedule. Despite the respondent’s request letters dated April 26, 2019, June 5, 2019 and October 31, 2019, the financial documentation requested was not provided by the applicant in compliance with these letters.
42I find that the applicant finally responded to the s. 33 requests on November 14, 2023. While the documents were provided to the respondent via email, I do not accept the respondent’s submission that they should have been faxed pursuant to s. 64 of the Schedule. Section 64(1)(2) provides that documents can be delivered by electronic means. I see no evidence that the respondent advised the applicant that it did not consent to delivery of the documents via email. I find that the respondent had a duty to advise the applicant if it did not agree to accept the documents via fax upon receipt of the documents. I further agree with the applicant that the respondent’s documents were provided by email which led to an inference that communications between the parties would be accepted via this method.
43With respect to the applicant’s non-compliance with s. 33 of the Schedule, I find that the applicant has not provided a reasonable explanation for her failure to comply with the s. 33 production requests until November 14, 2023. I do not accept the applicant’s submission that she did not receive the s. 33 request letters because she did not reside at the Richmond Hill address at the time of the accident or when the letters were sent. The applicant listed the Richmond Hill address on her OCF-1 and OCF-2 that she submitted to the respondent. I find that at no time did she advise the respondent that she did not live at this address. I agree with the respondent that the applicant attended the s. 44 IE assessments as per the respondent’s letter dated April 26, 2019. In addition, the applicant’s emails to her previous legal representative dated March 23, 2022 and May 6, 2022, confirm that she received the respondent’s letters about the suspension of her benefits and that her file was closed. Therefore, the applicant’s explanation in the April 29, 2023 letter that “she was even unaware that TD requested her financial documents and suspended her IRB because of the non-compliance” is not supported by the evidence.
44With respect to the applicant’s submission that she could have rectified her non-compliance earlier if the respondent had provided the AB file when it was first requested, I find that the evidence supports that the AB file was provided to counsel for the applicant on July 26, 2023, as set out in the email attached to the respondent’s submissions. While I acknowledge that there was a delay from the applicant’s first request on April 20, 2023, I also find that there was a delay in the applicant providing a response to the AB file until November 14, 2023. I find that neither of these delays are acceptable however, the fact remains that the documents were not submitted to the respondent until November 14, 2023.
45For the reasons outlined above, I find that the applicant is not entitled to IRBs during the period of her non-compliance with s.33 of the Schedule and no IRBs are payable for the period of November 15, 2019 to November 14, 2023.
Income Replacement Benefits Payable
IRBs from January 13, 2019 to November 14, 2019
46The applicant was paid an IRB for the period from January 13, 2019 to November 14, 2019 in the amount of $5,715.50, inclusive of interest, on April 19, 2024. The applicant has not made any submissions that this calculation was incorrect.
IRBs from November 15, 2019 to November 14, 2023
47As I have found that the applicant did not provide a reasonable explanation for the delay in complying with s. 33 of the Schedule, no IRBs are payable during the period from November 15, 2019 to November 14, 2023.
IRBs from January 2, 2021 to December 25, 2024
48I find that the applicant has not established on a balance of probabilities that she is entitled to post 104-week IRBs for the period from January 2, 2021 to December 25, 2024.
49To receive payment for a post 104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.
50The applicant submits that her initial entitlement to an IRB was approved by the respondent and there was no stoppage of her IRBs until December 25, 2024. In her reply submissions, she claims that s. 11 of the Schedule expressively permits a claimant to temporarily return to her employment or self-employment. She claims that she worked as an administrator and accountant at JYGM at the time of the accident. She returned to this role briefly on modified duties and hours after the accident which should not affect her entitlement to resume receiving IRBs. She claims that she also worked minimally at a tea shop. She states that she was not actively working as a real estate agent and only had minimal real estate activities with the help of friends and relatives. She claims that from 2024 to date, she has not worked or made any income in any capacity.
51The respondent submits that the applicant has not met the test under s. 6 of the Schedule. It submits that the applicant was able to return to work after the accident in her pre-accident employment at JYGM both pre- and post-104 weeks after the accident and worked at Sun Tea post-104 weeks after the accident. Since the accident, she also worked as a real estate agent as she did prior to the accident and continues to do so. The respondent submits that it is clear from the financial documentation that the reason she stopped working after the accident was due to three separate maternity leaves and not due to her accident-related impairments.
52I find that the applicant is not entitled to post-104 week IRBs for the following reasons.
53The applicant has not addressed in her submissions how she has suffered a complete inability to engage in any employment or self-employment for which she is suited by education, training or experience as a result of the accident. I find that the applicant has not addressed the respondent’s submissions that she was off work following the accident due to her three maternity leaves and not because of her accident-related impairments. She has also not addressed the dates that she was able to return to her pre-accident employment at JYGM or what modified duties she was able to perform.
54I find that while the applicant was determined by the IE assessors to suffer a substantial inability to perform her pre-accident employment duties, the test for entitlement for post-104 week IRBs is not the same. I find that the applicant is not automatically entitled to receive post-104 week IRBs just because she was found to be entitled to pre-104 week IRBs. The applicant has an onus to prove that she suffers a complete inability to engage in any employment or self-employment for which she is suited by education, training or experience as a result of the accident, which she has not met.
55I find that the applicant has not provided any medical evidence to support that she meets the post-104 IRB test. I further find that the financial documentation that was produced by the applicant on November 14, 2023 supports that she did return to work following the accident and that she was off work due to three maternity leaves. I find that the applicant has not provided any submissions or evidence to refute the respondent’s position that she does not meet the post 104-week IRB test.
56For the reasons outlined above, I find that the applicant has not demonstrated, on a balance of probabilities that she suffered a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. She is therefore not entitled to an IRB after January 2, 2021.
Interest
57Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefit is owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Award
58The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As I have found that the respondent did not unreasonably withhold or delay payment of any benefit, no award is warranted.
ORDER
59For the reasons outlined above, I find that:
i. The applicant was paid an IRB from January 12, 2019 to November 14, 2019;
ii. The applicant is not entitled to IRBs from November 15, 2019 to December 25, 2024;
iii. The applicant is not entitled to interest or an award; and
iv. The application is dismissed.
Released: November 6, 2025
__________________________
Melanie Malach
Adjudicator