Licence Appeal Tribunal File Number: 24-003417/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:
Melvin Dowman
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR: Jeff Chatterton
APPEARANCES:
For the Applicant: Nicholas Whelan, Paralegal
For the Respondent: Riley McIntyre, Counsel
HEARD: In Writing
OVERVIEW
1Melvin Dowman, the applicant, was involved in an automobile accident on May 30, 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 the respondent, Belair Insurance Company Inc., 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 a non-earner benefit in the amount of $185.00 per week from June 17, 2020 to May 30, 2022?
ii. Is the applicant entitled to interest of any overdue benefits pursuant to s. 51 of the Schedule.
iii. Is the applicant liable to pay costs?
3The respondent raised the issue of costs in its written submissions. Rule 19.2 of the Licence Appeal Tribunal Rules 2023, provides that a party can make a request for costs at any time before the decision or order is released. Therefore, I have added costs to the issues in dispute.
RESULT
4The applicant is not entitled to a non-earner benefit. No interest is payable.
5The respondent is not entitled to costs.
6The application is dismissed.
PROCEDURAL ISSUES
7There was a preliminary issue decision by the Tribunal dated December 16, 2024 finding that the applicant was not eligible to proceed to a hearing for five disputed treatment plans. Despite this decision, the applicant attempted to argue that there were incurred amounts for three of those treatment plans, and that the applicant was eligible for those incurred amounts due to a delay in receiving a proper denial letter.
8The respondent disagrees with the applicant, and argues that the applicant is not eligible to pursue a hearing for those three treatment plans based on the Tribunal’s decision. The respondent further argues that attempting to do so is an abuse of process, and as such, the respondent is seeking its costs.
9I have added the issue of costs as an issue in dispute.
10The applicant did not submit a motion asking to include the treatment plans he wished to raise as a dispute.
11I agree with the respondent. The Tribunal’s earlier decision is clear that the applicant is barred from proceeding to a hearing for the treatment plans in dispute. I do not have jurisdiction to consider the issues as part of this hearing and they have not been added to the issues in dispute as a result.
ANALYSIS
Is a Non-Earner Benefit (NEB) payable pursuant to section 36(6) of the Schedule?
12An NEB is not payable pursuant to s. 36(6) of the Schedule.
13A claim for a NEB is governed by sections 12 and 36 of the Schedule. In this case, I will address entitlement pursuant to section 36 first.
14Section 36(4) of the Schedule provides that within 10 days of receiving an application and completed disability certificate, the insurer must:
i. Pay the benefit;
ii. Give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the benefit and, if the insurer requires an examination under section 44 related to the specified benefit, advising the applicant of the requirement for an examination; or
iii. Send a request to the applicant under s. 33(1) or (2)
15Section 36(5) provides that if the insurer sends a request to the applicant under subsection 33(1) or (2), the insurer shall, within 10 business days after the applicant complies with the requests, pay the specified benefit or give the applicant a notice explaining the medical and any other reasons why the insurer believes the applicant is entitled to the benefit.
16Section 36(6) sets out the remedy for non-compliance with 36(4) and (5), providing that if the insurer fails to comply with 36(4) or (5), it shall pay the specified benefit for the period starting on the day of receipt of the application, and ending on the day the insurer subsequently provides a compliant notice.
17The applicant argues that the insurer has not complied with section 36(4), and therefore, according to s. 36(6), the NEB is payable to the applicant for the entire two years in dispute.
18Specifically, the applicant argues that the applicant does not need to show he meets the test for a NEB because it was never properly denied by the respondent pursuant to s. 36(4) or (5) and the respondent has not provided a compliant notice. Therefore the benefit is payable pursuant to section 36(6).
19The respondent disagrees. The respondent submits that s. 36(4) does not apply in this particular case. Rather, the November 16, 2020 letter was issued pursuant to section 36(7) and it did, in fact, comply with s. 36(4).
20Specifically, the respondent submits that it responded 7 business days after the receipt of the disability certificate with a letter dated June 29, 2020. The respondent requested information and documents pursuant to s. 33. The June 29, 2020 letter provided a deadline of July 16, 2020 and set out the consequences for not complying with the request. The respondent submits that it also wrote to the applicant on July 3, 2020 advising it required an insurer examination pursuant to section 44 to assist in determining entitlement to NEB. It sent a notice on July 6, 2023 setting out the details of the IE. After some scheduling challenges, the applicant attended the IE, and the IE reports were finalized on November 2, 2020. The November 16, 2020 letter advised the applicant he was not entitled to an NEB. In the preliminary issue decision, the Tribunal determined the November 16, 2020 letter did not provide sufficient medical and other reasons.
21The respondent argues that the letter of November 16, 2020 denied the NEB based on the results of an Insurers Examination. It submits the letter was issued pursuant to section 36(7), which outlines the requirements for an insurer when denying a specified benefit (in this case, NEBs) due to the findings of an IE. It submits the November 16, 2020 letter was not issued pursuant to section 36(4). The respondent further submits the Schedule does not provide a specific remedy if an insurer fails to provide adequate reasons in a letter delivered pursuant to section 36(7).
22Further, the respondent argues that the Tribunal is incapable of creating a remedy where one is not specifically provided in the SABS, citing A.D. v. Aviva Insurance Canada, 2018 CanLII 13176 (ON LAT).
23I agree with the respondent. The letter of November 16, 2020 was issued pursuant to section 36(7), rather than s. 36(4). As a result, the s. 36(6) remedy does not apply. I also agree that the Schedule does not provide a specific remedy for non-compliance with s. 36(7).
24Although I am not bound by the decisions of fellow adjudicators, I refer to 17-004156 v Aviva Insurance Canada, 2018 CanLII 13176 (ON LAT), where the adjudicator stated “I expect that if the Ontario Legislature intended for adjudicators to compel payment for non-compliance with s. 36(7), that power would be found in s. 36(6). Section 36(6) does not compel payment for s. 36(7) non-compliance. The Legislature’s decision to include s. 36(6) and not provide a remedy within it for s. 36(7) non-compliance indicates that the Legislature does not intend for adjudicators to compel payment when insurance companies breach s. 36(7).”
25More recently, I can refer to Rahnema v Unifund, 2023 CanLII 77314 (ON LAT), where the adjudicator stated, “I also note that s. 36(6) of the Schedule does not apply if an insurer fails to comply with s. 36(7).”
26In summary, the insurer’s November 16, 2020 letter did not comply with section 36(7), but the Schedule does not provide a remedy for non-compliance with section 36(7).
27For this reason, I find the applicant has not established that a NEB is payable based on section 36(6) of the Schedule.
Is the applicant entitled to a Non-Earner Benefit pursuant to s. 12?
28The applicant is not entitled to a NEB pursuant to s. 12 of the Schedule.
29Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
30The applicant relies primarily on the procedural argument outlined above regarding s. 36(4). The applicant did dedicate two paragraphs outlining that he is experiencing chronic pain and psychological disabilities.
31The applicant states that the NEB should be deemed reasonable and necessary. To support his claim, the applicant relies on the clinical notes and records of Dr. Brian Ling, a family physician.
32As set out above, the test for a NEB is whether the applicant has a complete inability to lead a normal life. While the onus is on the applicant to prove eligibility, the applicant has not submitted evidence focusing on a comparison of the applicant’s pre-and post-accident activities. Therefore, I cannot undertake the analysis required by Heath to establish entitlement.
33To this end, the respondent argues the applicant is not eligible for a non-earner benefit. It points to the fact the applicant was receiving a disability pension (ODSP) before the accident, but has not provided ODSP records, which would be critically important to comparing pre-and post-accident activities.
34For these reasons, I find the applicant has not, on the balance of probabilities, met the onus to establish entitlement to a non-earner benefit.
Interest
35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.
Costs
36Rule 19.1 states that a party may make a request to the Tribunal for costs when a party believes that another party has acted unreasonably, frivolously, or in bad faith. The request must include the amount being requested, and may be made at any time before the order is released.
37Rule 19.5 states that in deciding whether to order costs, the Tribunal shall consider all relevant factors including the seriousness of the misconduct, the prejudice to other parties, and whether or not the party’s behaviour interfered with the Tribunal’s ability to carry out a fair and efficient process.
38Rule 19.6 states that the amount shall not exceed $1,000 for each full day of attendance at a motion, case conference or hearing.
39While I am alive to the respondent’s submission that the attempt to raise the issues again at the hearing is an improper process, I also note that the respondent has not spent time and resources arguing the legal merits of the issues in their written submission. For this reason, I will not exercise my discretion to award $1,000.00 in costs to the respondent.
ORDER
40The application is dismissed.
i. The applicant is not entitled to a Non-Earner Benefit, and no interest is payable.
ii. The respondent is not entitled to costs.
Released: November 28, 2025
Jeff Chatterton
Adjudicator