Licence Appeal Tribunal File Number: 21-001365/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:
Samuel Tagoe
Applicant
and
The Personal Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
David Kapanadze, Counsel
For the Respondent:
Patrick Baker, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Samuel Tagoe, the applicant, was involved in an automobile accident on April 28, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, The Personal Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2This decision is a partial rehearing as a result of the reconsideration decision dated November 28, 2025. The issue of whether the applicant is entitled to income replacement benefits pursuant to s. 36(6) of the Schedule, and the related claims for an award and interest, were ordered to be reheard based on the parties’ written submissions.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from May 5, 2016, to date, pursuant to s. 36(6) of the Schedule?
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
4The applicant is not entitled to IRBs pursuant to s. 36(6) of the Schedule.
5The applicant is not entitled to interest or an award.
6The application is dismissed.
ANALYSIS
Procedural history
7In a Tribunal decision released August 25, 2025, the Panel found that the applicant was not catastrophically impaired, and that he was not entitled to IRBs, treatment plans, an award, or interest. In a reconsideration decision dated November 28, 2025, a partial re-hearing was ordered on the limited issue of s. 36(6) of the Schedule. On reconsideration, the Tribunal determined that while the Panel in the August 25, 2025 decision had made a determination on the applicant’s substantive entitlement to IRBs, it did not address the applicant’s additional argument, raised in his closing submissions, that IRBs should be payable due to the respondent’s breach of s. 36. Therefore, the issue of substantive entitlement to IRBs is not before me at this written hearing.
8In the reconsideration decision, the issue in dispute for this rehearing was identified as being, “[i]s the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from May 5, 2016, to date, pursuant to s. 36(6) of the Schedule?” However, in his submissions for this rehearing the applicant clarified the period in dispute and requested an order that IRBs be payable “from December 23, 2019 to the present”. Accordingly, this is the period in dispute that will be considered at this hearing.
Background and parties’ positions
9The applicant was involved in an accident on April 28, 2016 and on May 9, 2016 an OCF-1 was submitted to the respondent which stated that the applicant’s injuries did not prevent him from working. On May 16, 2016, an OCF-3 was submitted to the respondent stating that while the applicant was “substantially unable to perform the essential tasks of his employment” he had returned to work on modified hours and/or duties due to financial reasons, and he returned with pain and discomfort. By way of letter dated May 19, 2016, the respondent denied the applicant’s claim for an IRB.
10The applicant continued to work for about sixteen months after the accident, until July 31, 2017. He submitted a new OCF-3 on December 5, 2019 seeking IRBs. The OCF-3 noted that the applicant was substantially unable to complete the essential tasks of his employment. On December 20, 2019 the respondent sent an Explanation of Benefits (“EOB”) requesting additional information. The respondent submits that this request was never fully complied with by the applicant.
11On June 17, 2020, the respondent sent an EOB referencing the May 19, 2016 correspondence which had stated that the applicant was not eligible for IRBs. The June 17, 2020 EOB also stated that the applicant was now barred from disputing the IRB denial as it was over two years from the initial denial.
12The issue of whether the applicant was barred from pursuing IRBs pursuant to s. 56 of the Schedule was considered by the Tribunal in a decision dated February 28, 2022, the Divisional Court in a decision dated October 13, 2023, and the Court of Appeal in a decision dated December 11, 2024. It was found that the applicant’s IRB claim was not statute-barred by s. 56. As previously noted, in the subsequent Tribunal decision released August 25, 2025, the applicant’s substantive entitlement to IRBs was addressed.
13In this rehearing, the applicant submits that the respondent is non-compliant with s. 36(4) of the Schedule, and accordingly, IRBs are payable pursuant to s. 36(6). He submits that he stopped working in mid-2017, and on June 25, 2018 a Record of Employment, OHIP summary, and clinical notes from his family doctor were faxed to the respondent. On October 11, 2019 a completed OCF-2 was provided and on December 5, 2019 an updated OCF-3 was submitted to the respondent which sought entitlement to IRBs.
14The applicant submits that the respondent has never provided a denial notice that is compliant with s. 36(4) of the Schedule. He argues that by December 2019, the respondent had received a completed OCF-2, an updated OCF-3 and supporting and medical documentation. However, rather than providing a s. 36(4) compliant denial notice, on December 20, 2019 the respondent simply requested additional information. The applicant argues that this request does not suspend an insurer’s s. 36 obligations.
15He further submits that the subsequent June 17, 2020 EOB did not cure the s. 36(4) non-compliance. It merely referenced the May 19, 2016 denial issued years earlier and stated that the applicant was outside the limitation period for disputing the denial, a limitation position that the applicant argues was rejected by the Divisional Court and the Court of Appeal. Accordingly, the applicant argues that he is entitled to IRBs from December 23, 2019 to present.
16The respondent submits that both of its December 20, 2019 and June 17, 2020 EOBs complied with s. 36(4) of the Schedule. It argues that the December 20, 2019 letter requesting more information complied with s. 36(4)(c) of the Schedule, as it requested information that was reasonably required to assist in determining the applicant’s entitlement to IRBs. The respondent submits that its s. 33 request was never fully complied with by the applicant.
17The respondent further argues that the June 17, 2020 letter was also compliant with s. 36(4)(b) of the Schedule. This letter referred to the prior May 19, 2016 denial letter which states that the applicant is not entitled to IRBs. It also stated that it had been more than two years since the IRB claim had been denied and as such, it was time-barred. Given that the applicant has not established non-compliance with s. 36(4) of the Schedule, the respondent argues that IRBs are not payable pursuant to s. 36(6).
Payment of IRBs pursuant to s. 36(6) of the Schedule
18I find that the applicant has not established that IRBs are payable pursuant to s. 36(6) of the Schedule.
19Section 36(4) of the Schedule obligates the insurer to take one of three actions within 10 days of receiving a completed OCF-3. The insurer must: (a) pay the specified benefit; (b) give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit, and, if required request a s. 44 examination; or (c) send a request for more information to the applicant under subsection 33(1) or (2).
20Failure to comply with s. 36(4) of the Schedule triggers s. 36(6), which states 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 on the day the insurer gives a notice described in s. 36(4)(b).
21I find that the respondent’s December 20, 2019 letter was compliant with s. 36(4)(c) of the Schedule. In this correspondence, the respondent requested additional information, including the applicant’s employment file, CPPD file, and up to date clinical notes and records from the family doctor. I agree with the respondent that this information would have been reasonably required to assist the respondent in determining the applicant’s entitlement to IRBs, particularly given that the OCF-3 had been submitted three years post-accident.
22The respondent has cited Tribunal caselaw to argue that s. 33(1) does not need to be explicitly cited in the correspondence to make it a s. 36(4) compliant request. Rather, the s. 33 request need only be reasonably required to assist the insurer in making a determination. I find the caselaw cited by the respondent to be persuasive, and note that the applicant did not argue or cite any caselaw in support of an argument that s. 33 must be expressly referenced in the documentation requesting additional information.
23The applicant submits that he “substantially” complied with the respondent’s requests for additional documentation, however, he has not led evidence to establish that all of the requested documents were provided. The respondent has provided evidence that an updated OHIP summary was provided on February 7, 2020, and the CPPD file was received on February 5, 2020. However, the respondent had also requested the applicant’s employment file and updated family doctor records, as the prior family doctor records had been provided on March 8, 2019, eight months prior to the OCF-3 submission.
24The respondent has provided evidence that updated family doctor records were not provided until February/March 2025 and it submits that it has never received the employment file from the applicant’s employer. The applicant has not directed me to any evidence to dispute this. I further find that both the employment file and updated medical records would be reasonably required to assess the applicant’s entitlement to IRBs. Although it appears that the updated medical records were provided in February/March 2025, the applicant has not directed me to evidence that the respondent was provided with the employment file. As such, I find that the applicant has not established that he complied with the December 20, 2019 request for additional information. Accordingly, I find that IRBs would not be payable pursuant to s. 36(6), during the period of non-compliance, being the period that the requested documents are outstanding.
25I further find that the subsequent June 17, 2020 letter was also compliant with s. 36(4) of the Schedule. This correspondence referenced the May 19, 2016 EOB. The June 17, 2020 letter also stated that the applicant was statute-barred from proceeding with IRBs due to the two year limitation period. While I agree with the applicant that the issue of the two year limitation period has been resolved by the prior Tribunal, Divisional Court and Court of Appeal decisions, this was not the only reason cited in the June 17, 2020 correspondence.
26Rather, the letter also said that the applicant was not entitled to IRBs, with reference to the reasons in the May 19, 2016 letter. This letter stated that the applicant was not entitled to IRBs because he did not suffer from a substantial inability to perform the essential tasks of his employment, that his OCF-1 application had indicated that he did not suffer a disability under this benefit, and that the initial OCF-3 submitted by the applicant indicated that he continued to work. I find that this denial letter was compliant with s. 36(4)(b) of the Schedule.
27Given that I have found that the respondent’s December 20, 2019 and June 17, 2020 letters were compliant with s. 36(4) of the Schedule, I find that the applicant has not established that IRBs are payable pursuant to s. 36(6) for the period in dispute.
Interest
28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. In this case, there are no benefits owing, therefore no interest is payable.
Award
29The 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. In this case, the applicant has not established that the payment of any benefits has been unreasonably withheld or delayed. Accordingly, the respondent is not liable to pay an award.
ORDER
30The applicant is not entitled to IRBs pursuant to s. 36(6) of the Schedule.
31The applicant is not entitled to interest or an award.
32The application is dismissed.
Released: February 19, 2026
Ulana Pahuta
Adjudicator