Licence Appeal Tribunal File Number: 24-004844/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:
Palmina Lintenello
Applicant
and
The Personal Insurance Company
Respondent
DECISION
ADJUDICATOR:
Kathleen Wells
APPEARANCES:
For the Applicant:
Sarah Brown, Paralegal
For the Respondent:
Arash Vakili, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Palmina Lintenello, the applicant, was involved in an automobile accident on May 17, 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, The Personal Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
Is the applicant entitled to a non-earner benefit (NEB) of $185.00 per week from June 15, 2022 to May 17, 2024?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
The applicant is entitled to an NEB from June 22, 2022 to July 20, 2022.
The applicant is entitled to interest in accordance with s. 51 of the Schedule.
The applicant is not entitled to an award.
PROCEDURAL ISSUES
4The respondent requests that I draw an adverse inference because the applicant’s submissions solely addressed the procedural issue of whether or not the respondent complied with s. 35 of the Schedule, and that the applicant did not comply with the document exchange as set out in the Case Conference and Order. The respondent submits that the applicant was required to provide documents to the respondent by December 23, 2024, but the documents were not sent to the respondent until Jan 3, 2025, and were incomplete. The respondent further submits that the applicant has not provided the majority of the documents she agreed to provide at the Case Conference, and which were set out in the CCRO.
5In her reply submissions, the applicant acknowledges that the documents were served 11 days late but argues that the delay was a result of her attempts to follow up on repeated requests to obtain documents. The applicant submits that the documents were never provided by the third parties, which resulted in the disclosure being incomplete. The applicant did not direct me to evidence of the requests for the information.
6Non-compliance with Tribunal orders is a serious issue, however, as the applicant did not rely on any of the documents set out in the CCRO, and the respondent has not argued that it was prejudiced by the late production of the documents, I decline to make an adverse inference in the present case.
ANALYSIS
Non-Earner Benefit (“NEB”)
7I find that the applicant is entitled to an NEB from May 15, 2022 to July 20, 2022.
8As noted above, the applicant makes no submissions with respect to her substantive entitlement to an NEB, instead arguing that the NEB is payable, because the respondent did not comply with the Schedule’s requirements with respect to informing the applicant about the election of benefits under s. 35(1) and s. 32(2)(d). The applicant further argues that the respondent provided insufficient notice to the applicant under s. 36(4), because the respondent’s June 6, 2022 Explanation of Benefits (“EOB”) did not refer to the election of benefits.
9The respondent argues that as it had determined that the applicant did not qualify for the NEB, and informed the applicant that it would pay the IRB, the respondent did not require the applicant to make an election of benefits, and the respondent was not required to provide information about an election of benefits. The respondent further argued that the June 6, 2022 EOB was compliant with s. 36(4).
10Section 32(2)(d) sets out an insurer’s obligation to provide information in response to the application with respect to the election of benefits. It provides that the insurer must provide:
Information on the election relating to income replacement, non-earner and caregiver benefits, if applicable.
11Section 35(1) sets out an insurer’s obligation to notify the applicant of his or her requirement to choose one benefit, if they may be eligible for two or more of the income replacement benefit, the non-earner benefit or the caregiver benefit. It provides:
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, within 30 days after receiving the notice, the benefit he or she wishes to receive.
12Section 36(4) sets out the requirements for an insurer’s response to an application for a specified benefit, and is silent with respect to election of benefits. It provides that within 10 business days after the insurer receives the application and completed disability certificate, the insurer shall,
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 the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or
c) send a request to the applicant under subsection 33 (1) or (2).
13Section 36(6) sets out the consequences if an insurer fails to comply with s. 36(4). It provides:
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.
14The evidence reveals that the applicant submitted an OCF-1 on May 19, 2022, two days after the accident. The OCF-1 indicated that the applicant had not returned to work after the accident. The applicant’s Disability Certificate (OCF-3), prepared by Dr. Jennifer Violante, chiropractor, was dated June 1, 2022, and was submitted on June 27, 2022. Dr. Violante indicated that the applicant had a complete inability to carry out a normal life, and a substantial inability to perform the responsibilities of her employment, and that the applicant had returned to work on modified duties.
15The respondent’s June 6, 2022 EOB sets out a brief explanation of income benefits and states:
You qualify for both the income and non-earner benefits. Because you are off work, I will pay your income benefits. When you are no longer receiving income benefits, if your injuries are still impacting your normal activities, I will revisit non-earner benefits.
16The respondent relies on Jones v. The Co-operators, 2021 CanLII 13200 (ON LAT), (Jones v. The Co-operators), where the Tribunal held that there is nothing in s. 35(1) that provides an applicant with a unilateral right to elect benefits, and that it was up to the insurer to assess and determine whether the applicant was eligible for IRBs and NEBs.
17While not binding on me, I agree with the reasoning in Jones v. The Co-operators. However, I find it does not support the respondent’s position. This is because, in the present case, the evidence establishes that there was sufficient ambiguity about the applicant’s entitlement to either an IRB or an NEB to warrant an election of benefits. This finding is supported by the respondent’s own communication with the applicant.
18The EOB informed the applicant that she qualified for both an IRB and an NEB, but did not inform the applicant that she had the option to claim only one of the statutory benefits. While the respondent informed the applicant that it would pay the IRB, and denied the applicant’s claim for a caregiver benefit, the respondent did not provide a clear denial of the NEB. Instead, the respondent deferred a decision on the NEB until after the applicant ceased receiving the IRB. Accordingly, I find that the respondent did not comply with s. 32(2)(d) or s. 35(1), as the respondent did not inform the applicant about her requirement to elect a benefit, nor did the respondent provide the applicant with a benefit election form (OCF-10) within 10 days of the receipt of the OCF-3.
19I further find that the July 6, 2022 EOB is not a valid denial of the NEB, in accordance with s. 36(4). This is because it is not a clear and unequivocal denial, as it does not deny the NEB and does not provide sufficient information for an unsophisticated person to make an informed decision whether to dispute the notice. As such, the shall-pay provision of s. 36(6) are triggered.
20The evidence reveals that on May 19, 2023, the applicant’s counsel informed the respondent that the applicant would not be claiming the IRB because she had returned to work and had been compensated for her time off. The same day, the respondent sent 2 letters to the applicant. The first confirmed that the respondent had been informed that the applicant was not eligible for an IRB, and the second informed the applicant that her claim for an NEB was denied. I find that the May 19, 2023 NEB denial letter was a clear and unequivocal denial, provided reasons for the denial, and also provided information about the applicant’s right to dispute the denial, and the process by which to do so.
Section 33
21Section 33(1) states that, within 10 business days, an applicant shall respond to an insurer’s request for information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit. Section 33(6) provides the consequence for failing to respond to a section 33 request, which is the respondent may suspend the benefit until the applicant complies with the request.
22The respondent argues that the applicant is not entitled to payment for the NEB after July 20, 2022, because the applicant has not complied with s. 33 of the Schedule. The respondent submits that it made repeated requests for a completed Statement of Work (OCF-2), on July 6, 2022, October 20, 2022, and December 22, 2022. No payments were made to the applicant, because the OCF-2 was not provided to the respondent.
23In her reply submissions, the applicant submits that she did not receive the July 6, 2022 EOB, which requested that the applicant provide the OCF-2 was referenced in the applicant’s own submissions and included in her document brief. The applicant does not dispute that she received the s. 33 requests on October 20, 2022 and December 22, 2022 and did not provide an explanation as to why the OCF-2 was not provided.
24For the reasons above, I find that the applicant is non-compliant with s. 33(1) and therefore the respondent, in accordance with s. 33(6), is not liable to pay any benefit for the period of non-compliance.
25Accordingly, the applicant is entitled to the NEB for the period beginning on June 27, 2022, when the OCF-3 was filed, and ending on July 20, 2022, the beginning of the period of the applicant’s non-compliance with s. 33.
Interest
26The applicant is entitled to interest on any outstanding payments in accordance with s. 51 of the Schedule.
Award
27The 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.
28The applicant submits that she is entitled to an award and submits email correspondence between the applicant’s counsel and the respondent between March 1, 2024 and April 14, 2024, wherein the applicant’s counsel raised the issue of the election of benefits, and the respondent disagreed with the applicant’s position.
While I have found that the respondent was required to inform the applicant of her obligation to elect either an IRB or NEB, the consequence of noncompliance is that the benefit is payable. Based on the evidence before me, I find that the applicant has not established on a balance of probabilities that the respondent’s conduct meets the bar of excessive, imprudent, inflexible, unyielding or immoderate.
29Accordingly, the applicant is not entitled to an award.
ORDER
30I find that:
The applicant is entitled to an NEB from June 27, 2022 to July 20, 2022.
The applicant is entitled to interest in accordance with s. 51 of the Schedule.
The applicant is not entitled to an award.
Released: February 20, 2026
Kathleen Wells
Adjudicator```