Licence Appeal Tribunal File Number: 23-004633/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:
Ryan Roper
Applicant
and
Pembridge Insurance
Respondent
DECISION
ADJUDICATOR: Roderick Walker
APPEARANCES:
For the Applicant: Tina Lubman, Paralegal
For the Respondent: Diana Oliveira, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Ryan Roper, the applicant, was involved in an automobile accident on May 31, 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 the respondent, Pembridge Insurance, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The issues in dispute are:
i. Is the applicant barred from proceeding with their claim for benefits as they failed to submit the application for benefits (OCF-1) within the time prescribed in the Schedule?
ii. Is the applicant barred from proceeding to a hearing for the non-earner benefit because the applicant failed to provide the proper election (OCF -10) according to the Schedule, and failed to provide the proper election according to the S. 35 of the Schedule?
iii. Is the applicant barred from proceeding to a hearing for all the benefits claimed in this application because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule?
3The Respondent has abandoned preliminary issue #1 as set out in the Case Conference Report dated December 21, 2023, as the Applicant provided the information requested and the issue is now resolved.
RESULT
4I find that the applicant is barred from proceeding with his claim for NEBs due to his failure to do an election and provide an OCF-10.
5Accordingly, a hearing on the remaining issues in dispute may not proceed, as per the Case Conference Report and Order dated December 13, 2023.
6The application is dismissed.
PROCEDURAL ISSUES
7After the case conference, the applicant brought two motions for an order to produce the log notes for the written hearing. The case conference order and report dated December 21, 2023, Adjudicator Setton, ordered that that the adjuster’s log notes are not necessary to be produced for the preliminary issues hearing, as the preliminary issues, can be determined without the adjuster’s log notes.
ANALYSIS
Is the applicant barred from proceeding to a hearing for the non-earner benefit because the applicant failed to provide an election of income replacement benefit (OCF - 10) according to the Schedule?
Law
8Section 35(1) of the Schedule states that: If an application indicates that the applicant may qualify for two or more of the 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 a notice to the applicant advising the applicant that he or she must elect, 30 days after receiving the notice, the benefit he or she wishes to receive.
(2) If an applicant is determined to have sustained a catastrophic impairment as a result of an accident, the insurer shall, within 10 business days of the date of the determination, give a notice to the applicant advising the applicant that, despite any election previously made under subsection (1), he or she may elect, within 30 days after receiving the notice, to receive a caregiver benefit if the applicant would otherwise qualify for a caregiver benefit. O. Reg. 34/10, s. 35 (2)
(3) The applicant’s election under subsection (1) is final, regardless of any change in circumstances, and can be subsequently changed only if permitted under subsection (2). O. Reg. 34/10, s. 35 (3); O. Reg. 347/13, s. 3.
9The applicant submits that he provided the respondent with sufficient particulars to confirm that the only benefit to which the applicant was entitled and would therefore be claiming, was a non-earner benefit. An disability certificate (OCF-3) dated June 10, 2021, was submitted by the applicant and also a (OCF-1) where it indicated that the applicant returned to work on June 14, 2021. The OCF-1 submitted by the applicant indicated that at the time of the accident, the applicant was employed. The applicant submits that the OCF-3 also stated that the applicant was working at the time of the accident, although it indicated that he did not work at least 26 weeks of the previous 52 weeks. The OCF-3 further indicated both that the applicant was substantially unable to complete the tasks of his employment, and that he suffered a complete inability to carry on a normal life.
10The respondent submits that the applicant failed to provide an OCF -10 in this matter. The respondent submits that by not doing so, the applicant has not made an election of benefits in this case. The applicant provides no case law to support his failing to provide an OCT-10. Also, the respondent provides very little particulars that would confirm that the potential benefits being claimed were NEB. The applicant provides no examples of what particulars were provided to the respondent besides the OCF 3 and the OCF-1.
11The respondent submits that the applicant’s OCF-1 and OCF-3, when read together, indicate that the applicant was potentially entitled to either IRBs, NEBs or Caregiver Benefit. As such, the respondent argues that it required additional documentation, namely, the requested OCF-10 to understand the nature of the applicant’s claim and to assess his entitlement to the benefits. The respondent relies on several tribunal decisions in support of its position that the applicant’s application was incomplete without an OCF-10 and that a request for an OCF-10 is valid when the respondent is provided with conflicting information by the applicant.
12The applicant does not dispute that he has not submitted an OCF-10. However, he submits that an OCF-10 was not required as it was evident from the OCF-1 and the OCF-3 that state the applicant is returning to work on or about June 14,2021 and the information on both forms are sufficient to give the insurer the proper information and facts and that the only specified benefit he was eligible for, was NEBs. Given that there was no ambiguity, the applicant submits that the obligation to provide an election of specified benefit under section 35(1) was never triggered and that he was not required to provide an OCF-10. The applicant further relies on the Tribunal decision M.B. v. Aviva Insurance Company, 2017 Canli 87160 (ON.LAT) to support his position that an OCF-10 is not required to complete an application.
13I disagree with the applicant’s position. I find that in this case, there was sufficient ambiguity as to whether the applicant was potentially entitled to NEB, IRB or a Caregiver Benefit, such that the respondent’s request for an OCF-10 was valid.
14In addition, I do find that the letter from the insurer to the applicant on August 23, 2021, demanding specific details about the application for benefits including the requirement to submit an OCF-10 as soon as possible is a proper notice for the applicant to make an election for income benefits. Further an I find the applicant didn’t submit the OCF-10.
15I agree with the respondent’s submissions that the applicant has not been forthright as to his cooperation in submitting the OCF-10. The insurer is still left on the hook as to what type of benefit the applicant is justified to have in this case. A simple of filing an OCF-1 and an OCF- 3, doesn’t imply that the applicant is entitled to any benefits. Additional information and a completed OCF-10 for election purposes is required from the applicant under the Schedule for the respondent to continue to request a formal election.
16As such, I find that there is no dispute when the LAT application begun because an election had not been made. In Lefebvre v Aviva Insurance Company, 2018 ONSC 5676, cited by the respondent, it was upheld by the divisional court that an adjudicator can conclude that there was no dispute when the LAT application was commenced because an election had not been made let alone responded to.
17I find that the above case is binding on the set of facts in this case and that there was no dispute because the applicant failed to make an election pursuant to s.35 of the Schedule.
18For the above reasons above, and the review of the submissions and evidence of the parties, I find that the applicant was required to submit an OCF-10. under the Schedule. Given that he has failed to do so, he is barred from proceeding with his claim for NEBs.
ORDER
19I find that the applicant is barred from proceeding with his claim for NEBs due to his failure to submit an OCF-10.
20Accordingly, a hearing on the remaining issues in dispute may not proceed, as per the Case Conference Report and Order dated December 13, 2023.
21The application is dismissed, and the file will be closed as well as the substantive issues hearing will be vacated.
Released: February 28, 2025
Roderick Walker Adjudicator