Citation and Parties
Licence Appeal Tribunal File Number: 23-003159/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:
Robert Weeke Applicant
and
Allstate Insurance Company of Canada Respondent
Decision
Adjudicator: Lisa Yong
Appearances:
For the Applicant: Maciek Piekosz, Counsel
For the Respondent: Rebecca Brown Greer, Counsel
Heard: By way of written submissions
OVERVIEW
1Robert Weeke, the applicant, was involved in an automobile accident on September 23, 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, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2Is the applicant precluded from applying to the Tribunal since the OCF-1 was submitted 2 years and 19 days after the accident, pursuant to s. 32 of the Schedule?
SUBSTANTIVE ISSUES
[3] The substantive issues in dispute are: a. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from October 21, 2020 to September 23, 2022? b. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant? c. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is not statute-barred from proceeding with his application before the Tribunal under s. 32 of the Schedule.
5The applicant is not entitled to a NEB.
6The applicant is not entitled to interest or an award.
PROCEDURAL ISSUES
Respondent’s request to exclude 6 pages from the applicant’s initial submissions is not granted
7I decline to grant the respondent’s request and accept the applicant’s submissions in its entirety.
8The respondent requests that the last six pages of the applicant’s submissions be struck out and excluded. It submits that the CCRO provides that each party’s submissions shall be 12 pages each and the applicant’s reply shall be 6 pages. The applicant submitted 18 pages in its initial submissions and 2 pages in reply submissions. The respondent submits that it is prejudiced as it is only limited to 12 pages in response to the applicant’s initial submissions.
9The applicant replied that his 18-page submission was unintentional and that he submitted only 2 pages for reply to compensate for the inadvertency. He requests that the Tribunal accept all his submissions in its entirety.
10Having considered the parties’ submissions, I find the applicant breached the page limits as ordered in the Case Conference Report and Order dated November 3, 2023 (“CCRO”).
11I find that the applicant misinterpreted the meaning of paragraph 12(i) of the CCRO. I disagree with the applicant’s submission that a large portion of his submissions are summaries of case law, which is permitted under paragraph 12(i) of the CCRO, therefore should not count towards his page limit. The parties are permitted to include case law as part of their hearing brief, meaning that they may annex a full copy of any case law relied upon as part of their hearing briefs. However, this does not extend to permitting a party to summarise the relevant case law within their respective submissions without abiding to their submission page limits as ordered in the CCRO.
12Notwithstanding the above, the respondent has not provided sufficient evidence to support how it has been prejudiced as a result of the applicant’s 18-page submissions. I find that the respondent was able to complete and file its submissions by the deadline as ordered in the CCRO. I was not referred to any evidence from the respondent of actions taken prior to the hearing in seeking a remedy in this regard, for example, requesting an extension of time or an extension of its submission page limit.
13For the above reasons, I decided to accept all of the applicant’s submissions.
ANALYSIS
The applicant notified the respondent of the accident pursuant to s. 32(1)
14I find that the applicant complied with s. 32(1) of the Schedule and notified the respondent of the circumstances of the accident within the statutory timeframe.
15Section 32(1) of the Schedule provides that a person who intends to apply for accident benefits shall notify the insurer of their intention no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day.
[16] There is no dispute that the applicant: a. was involved in the automobile accident on October 3, 2019; b. was in a coma for 14 days post-accident as a result of his accident-related injuries; c. was discharged from the hospital on October 13, 2020, and d. submitted his completed OCF-1 to the respondent on October 12, 2022 (i.e. 3 years post-accident).
17There is also no dispute that the applicant, via his mother, Ms. Weeke, notified the respondent of the circumstances of the accident some time during the period when the applicant was hospitalised post-accident. Therefore, pursuant to section 32(1), I find that the applicant, via his mother, notified the respondent within seven days or as soon as practicable after the accident and thereby, in compliance with s. 32(1).
The applicant is not barred from proceeding with his application
18I find that the respondent did not provide a valid notice in accordance with s. 32(2) of the Schedule and the applicant is not barred from proceeding with his application.
19Once an insurer receives notice of an applicant’s intention to apply for statutory accident benefits, the insurer must provide the applicant with the appropriate OCF-1 forms, a written explanation of the benefits available, information to assist the person in applying for benefits and information on the election relating to the specified benefits, if applicable (s. 32(2)). Pursuant to s. 32(5) of the Schedule, the applicant must then submit a completed and signed application for benefits to the respondent within 30 days after receiving the forms.
20Section 64(2)(d) of the Schedule states that if a document is sent by ordinary mail to a person other than an insurer, it may be delivered to the person at his or her last known address. Section 64(18) provides that “a person is deemed to receive anything delivered by ordinary mail under clause (2)(d) on the fifth business day after the day the document is mailed in accordance with clause (2)(d).”
21The applicant submits that he lived in one of the units of a 67-unit condominium and the respondent’s letter dated October 14, 2020, enclosing the blank OCF-1 form (“October letter”), was sent to his address without his unit number. He submits that since he never received any written correspondence from the respondent post-accident until he engaged legal representation some time in October 2022, the 30-day time limit under s. 32(5) had not been triggered or began to run. The applicant cites the case of Nichols v. Gore Mutual Insurance Company, 2023 CanLII 7299 (ON LAT) as authority, where the adjudicator held that as the applicant did not receive any notice containing the blank OCF-1 form from the respondent, the 30-day time limit under s. 32(5) was not triggered. He further relies on his hospital records, the affidavit of Ms. Weeke, his Examination Under Oath dated December 9, 2022 (“EUO”) and the adjuster’s log notes, in support of his submissions.
22The applicant also submits that the adjuster’s log notes are incomplete as they did not document that the October letter was sent to him. The respondent did not address this point in its submissions.
23The respondent submits that the October letter was sent to the correct address, as the applicant testified in his EUO, and is therefore compliant with s. 32(2). It also submits that the letter was never “return[ed] to sender” and there was no way it would have known the applicant did not receive the said letter. It submits that the applicant did not submit the completed OCF-1 form within the required statutory timeframe and therefore is time-barred from pursuing his claim for any specified benefits, medical and rehabilitation benefits under the Schedule. It relies on the adjuster’s log notes, Ms. Weeke’s affidavit and cross-examination, the EUO and its letters to the applicant. It also relies on the case of C.V.D.W. v Heartland Farm Mutual, 2020 CanLII 34450 (ON LAT), where a missing P.O. box number from the address was not found to be fatal and the insurer was found to have fulfilled its obligations of providing the required forms to the applicant at the address provided.
[24] I find that the adjuster’s log notes are either incomplete or that the respondent never issued a letter on October 14, 2020 for the following reasons. i. There is no entry dated October 14, 2020 in the adjuster’s log notes. Despite two entries dated October 16, 2020 in the adjuster’s log notes, neither of them recorded that a letter was sent to the applicant on October 14, 2020. In my opinion, tendering a copy of the October letter, together with the respondent’s assertion that the said letter was sent, are insufficient evidence to prove that the said letter was, in fact, sent to the applicant; ii. In the first October 16, 2020 adjuster’s log note entry, an address was listed under the applicant’s name, but without the unit number. The adjuster’s log notes provided no indication for where the respondent obtained the applicant’s address; iii. In the second October 16, 2020 entry, the adjuster noted a to-do list which included the “[n]eed to obtain contact info for clmt (sic)” amongst other tasks. This suggests that the respondent was aware that it did not have the complete contact information of the applicant and the need to take further action to obtain the same. This also calls into question why the respondent sent the October letter on October 14, 2020, but documented that it was missing the applicant’s contact information two days later; iv. Based on Ms. Weeke’s recollection of her initial telephone call with the respondent, she did not provide the applicant’s address and only provided the contact phone numbers for herself and the applicant’s former girlfriend, Larissa Little. This conversation was not documented in the adjuster’s log notes and was not disputed by the respondent; and v. I find that the adjuster’s log notes appear to record its correspondence only partially with the applicant. The adjuster’s log notes recorded the respondent’s attempt to contact Ms. Little, without success due to her voicemail being full, on November 24, 2020. The respondent tendered a letter dated December 8, 2020 which was stamped ‘return to sender’. However, there was no entry dated December 8, 2020 in the adjuster’s log notes. In a subsequent log entry dated January 25, 2021, it was noted that “contact clmt & mail is being returned. Close claim until further notice (sic)”. This note does not specify which letter (e.g. October 14, 2020, November 24, 2020 or December 8, 2020) was returned. However, according to the evidence, I can only infer that this note refers to the letter dated December 8, 2020.
25I disagree with the respondent’s submission that the address (i.e. without the unit number) on its record is correct, and that the applicant remained in connection with his place of residence for at least fourteen months following the accident and would have received the October letter and the letter dated November 24, 2020. The applicant testified and provided his unit number during his EUO. The applicant’s testimony is consistent with two subsequent ambulance call reports dated October 5, 2021 and December 17, 2021, where the applicant’s address listed therein contained his unit number. Based on this evidence, I find that the respondent did not have the correct address of the applicant at the outset and the applicant would not have received the respondent’s letters, including the October letter.
26Further, I find that the applicant did not receive any written correspondence from the respondent because the respondent’s letter dated December 8, 2020 (“December letter”), addressed to the applicant without the unit number, was stamped “return to sender”. This is clear evidence that the applicant did not receive the December letter, which also suggests, on the balance of probabilities, that the applicant would not have received any prior letters.
27Although I am not bound by any previous Tribunal decisions, I find that C.V.D.W. v Heartland Farm Mutual, 2020 CanLII 34450 (ON LAT), relied on by the respondent, can be distinguished because Adjudicator Ferguson referred to a number of instances where the applicant had knowledge of her entitlement to claim for accident benefits and received written correspondence from the respondent, despite missing a PO box number.
28For the above reasons, I find that the respondent did not provide a valid notice pursuant to s. 32(2) of the Schedule. Accordingly, the 30-day time limit under s. 32(5) had not been triggered.
29As I have found that the 30-day time limit had not been triggered under s. 32(5), I am not required to proceed to do an analysis under s. 34 of the Schedule to determine if the applicant had a reasonable explanation for failing to comply with s. 32(5).
30Accordingly, the applicant is not barred from proceeding with his application.
The applicant is not entitled to a NEB of $185.00 per week from October 21, 2020 to September 23, 2022
31I find that the applicant is not entitled to a NEB.
32Section 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. Section 12(3) provides that the insurer is not required to pay a NEB “for the first four weeks after the onset of the complete inability to carry on a normal life” and “for more than 104 weeks” post-accident”.
33Section 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 (“Heath”), which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
34The applicant submits that prior to the accident, he was independent with his personal care, able to take care of and spend time with his daughter, clean the apartment, spend time on his hobbies and going to the beach. Post-accident, he submits that he suffered a complete inability to carry on a normal life, including no longer being able to take care of himself, his apartment, make or keep appointments due to difficulties with his memory, concentration and physical pain. The applicant submits that he was unable to apply for NEB because the respondent failed to provide the application package under s. 32 and requests the Tribunal to retrospectively award him the NEB. He relies on the Occupational Therapy Assessment report dated January 23, 2024, by Ms. Chantal Prasad, occupational therapist.
35The respondent submits that the applicant’s Occupational Therapy Assessment report was conducted over three-years post-accident, outside the two-year post-accident NEB eligibility period. The respondent submits that the report was conducted to calculate the applicant’s attendant care benefit claim, which is not an issue in dispute in this hearing, and Ms. Prasad made no comment on whether the applicant met the NEB test. Further, it submits that the applicant has not provided any evidence for the Tribunal to compare the applicant’s pre- and post-accident functioning.
36The applicant did not submit any reply submissions.
37I agree with the respondent that the applicant has not tendered any pre-accident medical records to show his pre-accident level of functioning.
38Further, I also agree with the respondent that Ms. Prasad’s assessment was conducted over 104 weeks post-accident, on March 28, 2023 and January 22, 2024 and focused on the applicant’s attendant care needs, rather than an assessment on an entitlement of an NEB.
39Even if I were to consider Ms. Prasad’s assessment, she conducted a physical assessment and noted that the applicant exhibited ranges of motion within functional limits and that the majority of his muscles are of full range with maximum resistance. In terms of Ms. Prasad’s cognitive testing of the applicant, I give little to no weight to her findings as she is an occupational therapist, not a psychologist. Hence, she is unable to provide any medical opinions regarding the applicant’s psychological status.
40Other than the three ambulance reports dated September 23, 2020, which recorded the surgeries that occurred immediately after the subject accident, and two other separate events on October 5, 2021 and December 17, 2021, which are unrelated to the injuries sustained in the subject accident, I have been referred to limited medical evidence that comments on the applicant’s physical and psychological functioning during the period of two-years post-accident.
41In Heath, the Court of Appeal held that the trial judge erred by applying “little or no consideration of either his pre-accident condition and activities, or his condition and activities during the two-years post-accident period in which a claimant must qualify for a non-earner benefit”. The Court of Appeal also stated that “[i]t is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life. Rather, it is incumbent on a claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all of his pre-accident activities. The phrase “continuously prevents” means that a claimant must prove “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted”.”
42As Ms. Prasad’s report focused on an assessment of attendant care needs, not NEB entitlement, combined with the lack of medical evidence detailing the applicant’s pre- and post-accident (within 104 weeks) level of functioning, I find that the applicant has not established his onus to prove his entitlement to an NEB.
43For the above reasons, I find that the applicant is not entitled to a NEB.
Interest
44Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the applicant is not entitled to a NEB, no interest is payable to the applicant.
Award
45The applicant sought an award under s. 10 of Reg. 664. Under s. 10, 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.
46As there are no benefits owing or unreasonably withheld or delayed, there is no award payable.
ORDER
47The applicant is not statute-barred from proceeding with his application before the Tribunal under s. 32 of the Schedule.
48The applicant is not entitled to a NEB.
49The applicant is not entitled to interest or an award.
50The application is dismissed.
Released: March 14, 2025
Lisa Yong Adjudicator