Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 25-003740/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:
Noel Negassi Applicant
and
Security National Insurance Company Respondent
DECISION
ADJUDICATOR: Lisa Holland
APPEARANCES:
For the Applicant: Noel Negassi, Applicant Alexander Elkin, Counsel
For the Respondent: Colleen Mackeigan, Counsel
Court Reporter: Bruce Porter Victory Verbatim
HEARD: by Videoconference November 4, 2025
OVERVIEW
1Noel Negassi, the applicant, was involved in an automobile accident on December 19, 2022, 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, 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 ("NEB") in the amount of $185.00 per week from January 20, 2023 to date and ongoing?
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?
RESULT
3The applicant is not entitled to an NEB.
4Since there are no benefits delayed or owing, the applicant is not entitled to interest.
5The respondent is not liable to pay an award.
PROCEDURAL ISSUES
The Respondent's Book of Authorities and Supplementary Book of Authorities is allowed
6I granted the admissibility of the respondent's book of authorities and supplementary book of authorities pursuant to Rule 9 of the Licence Appeal Tribunal Rules, 2023 (the "Rules").
7At the start of the hearing, the applicant sought to exclude the respondent's book of authorities and supplementary book of authorities because they were filed outside the deadline prescribed under Rule 9.4.3 of the Rules or 21 days before the hearing. The applicant submits that the respondent must provide a reason for the late filing since it has breached the Rules.
8Rule 9.4.3 specifically provides that the respondent was required to file with the Tribunal, and serve on the applicant, a copy of the evidence and authority brief it intended to rely on, no later than 21 days before the hearing. Rule 9.4.4 provides that the Tribunal may consider late filed materials after hearing the parties' submissions on the relevant factors set out in Rule 9.3.
9The respondent submits that its book of authorities and supplementary book of authorities were filed 20 days and 15 days before the hearing, respectively. The respondent submits that after considering all the potential issues in dispute, it cited 3-4 cases in its supplementary book of authorities regarding s. 33. The respondent submits that the cases referenced are publicly available and the applicant is not prejudiced.
10After hearing the parties' submissions, I find that the applicant has not persuaded me that he has suffered any prejudice by the late filing of the respondent's books of authorities. I find that the book of authorities is not evidence. The applicant was served with the material 15 days in advance of the hearing. Therefore, the applicant is not prejudiced by it. Further, I agree with the respondent that Rule 9 deals with the disclosure of evidence a party intends to rely upon at a hearing and case law does not fall under this category.
There is no adverse inference in not calling a witness to testify
11The applicant submits that there is an adverse inference created by the respondent's failure to call the adjuster as a witness to testify.
12The respondent submits that the adjuster's log notes have been produced, and there is no obligation for the respondent to call the adjuster where the applicant had the opportunity to summons the adjuster for cross-examination, and he chose not to do so.
13I find there is no adverse inference by the respondent's decision not to call the adjuster as a witness. I agree that the applicant could have served a summons if he wanted to cross-examine the adjuster.
ANALYSIS
Is the applicant entitled to an NEB pursuant to s. 12(1)?
14The applicant has not met his onus to establish eligibility for an NEB.
15Section 12(1) of the Schedule 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.
16Section 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."
17The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, ("Heath") which, generally, focuses on a comparison of the applicant's pre- and post-accident activities.
18The applicant testified that he was involved in a motor vehicle accident on December 22, 2022, and submitted an Application for Accident Benefits ("OCF-1") on January 13, 2023 and a Disability Certificate ("OCF-3") dated January 30, 2023. The applicant testified that he was employed as a stagehand at IATSI and he was enrolled as a full-time student at Carlton University at the time of the accident. The applicant testified that his OCF-3 indicated that he was substantially unable to perform the essential duties of his pre-accident employment; he was unable to return to modified duties; and he had a complete inability to carry on a normal life.
19The applicant testified that he stopped working after the accident until February 2023, when he was able to perform the essential tasks of his employment. The applicant testified that his work was seasonal and work was not always available.
20On cross examination, the applicant testified that he is unable to recall the exact date he returned to work.
21The applicant did not testify or direct me to any evidence to address his substantive entitlement to an NEB, other than the OCF-3. Instead, the applicant focuses his submissions on the respondent's non-compliance with the notice provisions in sections 32, 35 and 36 of the Schedule.
22For the reasons set out above, I find that the applicant has not established on a balance of probabilities that he suffered from a complete inability to carry on a normal life as a result of the accident from January 20, 2023 to date and ongoing. As a result, I find that the applicant has not established substantive entitlement to NEBs.
Procedural requirements of s. 35 and s. 36(4) of the Schedule
23I find that the applicant has not established that an NEB is payable from January 20, 2023 to date and ongoing due to non-compliance with section 36(4) of the Schedule.
24As an alternative argument, the applicant submits that he is entitled to an NEB based on the respondent's non-compliance with s. 35 and s.36(4) of the Schedule.
25Section 35(1) of the Schedule provides that if an application indicates that the applicant may qualify for two or more of income replacement benefit, the non-earner benefit and the caregiver benefit under Part II, the insurer shall, within 10 business days after receiving the application, give notice to the applicant advising the applicant that he or she must elect, within 30 days after receiving the notice, the benefit he or she wishes to receive.
26Section 36(4) of the Schedule states that within 10 business days after an insurer receives an application and a completed Disability Certificate ("OCF-3"), the insurer shall:
i. Pay the specified benefit;
ii. Give the applicant a notice explaining the medical and other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires and examination under s.44 relating 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 s.33(2).
27Should the requirements outlined in s.36(4) of the Schedule not be met, s.36(6) of the Schedule states:
i. If the insurer fails to comply with subsection (4) or (5) within the applicable time limit, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate, and ending, if the insurer subsequently gives a notice described in subsection (4)(b), on the day the insurer gives the notice.
28Section 36(5) of the Schedule provides that if the insurer sends a request to the applicant under s.33(1) or (2), the insurer shall within 10 business days after the applicant complies with the request, pay NEB or give the applicant notice described in s.36(4)(b).
29The applicant submits that he submitted an OCF-3 dated January 30, 2023 supporting his entitlement to a NEB to the respondent. He further submits that the respondent provided an Explanation of Benefits ("EOB") dated February 9, 2023, advising him that he is not eligible for an NEB since he is eligible for an IRB and requesting further information, including an Employer's Confirmation of Income for ("OCF-2"), pre-and post-accident income documents, and collateral benefit information.
30The applicant submits that the February 9, 2023 denial is non-compliant with s. 35 and s. 36 of the Schedule because it did not include a notice of election request ("OCF-10"), or provide medical or any other reasons for its denial of an NEB. The applicant argues that since he never made an election, there has not been a proper denial of a specified benefit.
31The applicant argues that the respondent is non-compliant with s. 35(1) of the Schedule because after the respondent received the OCF-3 on February 6, 2023, it did not request that the applicant make an election of a specified benefit within 10 business days after receiving the OCF-3 on February 6, 2023, and therefore, its denial of an NEB is improper.
32The applicant argues that the respondent did not comply with its obligations under s. 35(1) until April 21, 2023, when it advised the applicant that he may be eligible for both an IRB and an NEB, and it requested completion of an OCF-10 within 30 days, or the applicant is deemed to elect the higher benefit.
33The applicant argues that he became eligible for an NEB once he returned to work in February 2023, and he was no longer eligible for IRBs and no longer met the IRB disability threshold. The applicant submits that when he returned to work, an NEB would be the higher benefit. However, I find it is reasonable to assume that if the applicant was able to perform the essential tasks of his pre-accident occupation, he has not suffered a complete inability to carry on a normal life.
34The respondent submits that on January 26, 2023, it received the OCF-1 dated January 13, 2023, indicating that the applicant was employed with three employers at the time of the accident, and he has not returned to work. The applicant further indicates in the OCF-1 that he was not a student at the time, but he did return to school after the accident. The respondent submits that on February 6, 2023, it received the applicant's OCF-3 dated January 30, 2023, completed by Dr. Manisha Mistry, orthopaedic surgeon. The OCF-3 indicates that the applicant was not working at the time of the accident, and he last worked on December 16, 2023, and he was enrolled in an educational program. Dr. Mistry indicates on the OCF-3 that the applicant is unable to return to work, but he is capable of returning to his educational program. Dr. Mistry also indicates that the applicant has sustained a complete inability to carry on a normal life. Again, I find there is a contradiction in Dr. Mistry clearing the applicant to return to school, while at the same time finding he is suffering from a complete inability to carry on a normal life.
35The respondent submits that its EOB dated February 9, 2023 is compliant with s. 36(4). The respondent argues that it responded to the applicant's application for a specified benefit on February 9, 2023, within 10 business days after receiving the OCF-3 on February 6, 2023. The respondent submits that it stated in the February 9, 2023 denial that the applicant is not eligible for a NEB because he qualifies for an IRB. The respondent requested documents to calculate the IRB, including an OCF-2, pre- and post-accident pay statement, statements from any disability plan, and statements from Employment Insurance ("EI").
36The respondent submits that the applicant applied for both an IRB and an NEB, however, in letter dated February 9, 2023, it denied the applicant's eligibility to claim an NEB because he qualifies for an IRB. The respondent submits that by letter dated February 9, 2023, it made s.33 requests for an Employer's Confirmation of Income form ("OCF-2") and other income documentation to calculate an IRB.
37The respondent submits that on March 30, 2023, the applicant provided his T4 2022 and school information to the respondent and requested an IRB calculation.
38The respondent submits that in the adjuster's log notes dated April 6, 2023 and April 20, 2023, the adjuster spoke to the applicant's representative, Carlos Ortiz, who confirmed the applicant is applying for an IRB. During the conversations, the adjuster requested that the applicant submit and OCF-10, OCF-2, and his paystubs.
39I find that the respondent provided a compliant denial of an NEB on February 9, 2023, because the applicant qualified for an IRB. I find that the February 9, 2023 denial satisfies s. 36(4) because denying the NEB on the basis that the applicant qualifies for an IRB is a valid reason and would not require an election form. Further, I find the respondent requested further income documentation to calculate the applicant's IRB. I further find that the respondent may rely on the applicant's correspondence dated March 20, 2023 and conversations on April 6, 2023 and April 20, 2023, wherein the applicant advised he is claiming an IRB and asking the respondent to calculate same.
40Therefore, I find that since the respondent did comply with s.36(4) of the Schedule and the denial of an NEB on February 9, 2023 is valid, the applicant is not entitled to an NEB.
The applicant is not entitled to interest or an award
41Under s.10 of Reg. 664, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
43Since there are no benefits delayed or owing, there is no interest or award payable to the applicant.
ORDER
44For the reasons set out above, I find that:
i. The applicant is not entitled to an NEB;
ii. As there are no benefits delayed or owing, the applicant is not entitled to interest, nor an award; and,
iii. The application is dismissed.
Released: December 24, 2025
Lisa Holland Adjudicator