Licence Appeal Tribunal File Number: 24-009476/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:
Jasmin Isic
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Nadia Mauro
APPEARANCES:
For the Applicant:
Gordon W Harris, Counsel
For the Respondent:
Murleen Mclean, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Jasmin Isic, the applicant, was involved in an automobile accident on January 7, 2019, 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, Intact 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:
i. Is the applicant entitled to a non-earner benefit of $185.00 per week from January 7, 2019, to ongoing?
ii. Is the applicant entitled to $5,096.47 for clothing and accessories, submitted on a claim form (OCF-6) dated December 22, 2023 and denied January 8, 2024?
iii. Is the applicant entitled to $47.64 for prescriptions submitted December 12, 2023, and denied December 13, 2023?
iv. Is the applicant entitled to $186.51 for prescriptions submitted March 31, 2023, and denied April 6, 2023?
v. Is the applicant entitled to costs (Rule 19) to the date of the case conference?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefit?
3The applicant confirmed in his submissions that he withdraws issues 2 and 3 as listed on the Case Conference Report and Order, dated December 6, 2024.
RESULT
4I do not have jurisdiction under s. 280 of the Insurance Act, RSO 1990, c I.8, to determine entitlement to NEB.
5The applicant is not entitled to reimbursement for expenses, interest, or an award.
6The applicant is not entitled to costs.
ANALYSIS
Non-Earner Benefits
7I find that I do not have jurisdiction under s. 280 of the Insurance Act, RSO 1990, c I.8, to determine this issue.
8Section 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 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.
9Section 36(2) of the Schedule states that an applicant for a NEB must submit a completed disability certificate (“OCF-3”). Section 36(3) states that an applicant who fails to submit an OCF-3 is not entitled to a specified benefit for any period before the completed certificate is submitted. However, s. 34 provides that an insured’s failure to comply with a time limit in Part VIII of the Schedule does not disentitle them to benefits if they provide a reasonable explanation.
10The applicant submits that he was the front-seat passenger of the vehicle that was involved in the collision. The applicant submits that, at the time of the accident, he did not own or lease a vehicle, nor did he have an automobile insurance policy of his own. The applicant submits that he did not learn of his eligibility for accident benefits until he contacted counsel in 2021, more than two years after the accident. The applicant submits this is because the respondent failed to make any inquiries, send the required documents, and treat him as an insured person. The applicant further submits that the fact that he missed the application window for NEBs is a direct and proximate result of the respondent’s neglect to provide him with an application package for accident benefits.
11The respondent submits that the Tribunal has no jurisdiction to make a decision on this issue because there was no denial.
12The applicant argues in his reply submissions that “where delay is caused by the insurer’s own misconduct, failure to investigate, or failure to disclose statutory rights, a rigid interpretation of section 36 would undermine the SABS’ consumer protection aims.” The applicant relies on Hussein v. Intact Insurance Company, 2025 ONSC 842 (“Hussein”) to argue that to allow the insurer to benefit from its delay would deprive the applicant of his chance to submit the OCF-3 the insurer faults him for failing to provide. The applicant argues that this would create a perverse incentive for insurers to engage in similar conduct in the future. The applicant also relies on Botbyl v. Heartland Farm Mutual Inc., 2025 ONSC 3349 in that to permit the insurer to benefit from its own inaction and delay would be a “windfall” and contrary to the Schedule.
13I agree with the applicant’s reliance on the Divisional Court decision in Hussein insofar as the Schedule must be interpreted in accordance with its consumer protection purpose, and that insurers have a positive obligation to issue benefit application packages upon learning of a collision. However, in the present case, despite the lengthy delay in receiving a benefits package, the applicant has not provided evidence of a submitted disability certificate or denial of this specified benefit to date.
14While the applicant provides a reasonable explanation for the delay in filing an application for accident benefits, I am not satisfied that the applicant has provided a reasonable explanation for failing to submit an OCF-3 for NEBs. The respondent sent letter correspondence on August 5, 2022, notifying the applicant of his potential entitlement for NEBs, despite being well after the 104-week entitlement period pursuant to s. 12(1) of the Schedule. The applicant has not pointed me to evidence that an OCF-3 has been completed and submitted to the respondent for consideration. While I agree with the applicant that he had a reasonable explanation as to why an OCF-3 was not submitted prior to receiving the application package for accident benefits at some point in July 2022, the applicant has not provided a reasonable explanation as to why an OCF-3 has never been submitted to overcome s. 36(3).
15Even if the applicant did have a reasonable explanation for not completing the OCF-3, the overarching issue is that there has been no denial of this specified benefit. At this impasse, I do not have jurisdiction to make a determination.
16I find that because there was neither a completed application for NEB by way of OCF-3, nor a denial of a NEB by the respondent, the specified benefit is not properly in dispute. As such, I do not have jurisdiction to make a determination pursuant to s. 280 of the Insurance Act, R.S.O, 1990, c. I.8 because the Tribunal’s jurisdiction under s. 280(1) pertains to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled. If there has been no denial of the specified benefit, the Tribunal has no jurisdiction to make a determination.
The Clothing and Accessories
17I find that applicant is not entitled to reimbursement for the proposed items on the OCF-6 dated December 22, 2023.
18The applicant confirmed in his submissions that the portion of the OCF-6 for the carry-on bag in the amount of $157.50 is withdrawn.
19The remainder of the OCF-6, dated December 22, 2023, left in dispute is as follows:
i. Columbia men’s down hooded jacket in the amount of $279.99;
ii. UGG men’s stenton waterproof boots, in the amount of $230.00;
iii. Hugo slim-fit comfort stretch jeans, in the amount of $99.00;
iv. Voyager men’s sherpa lined fleece, in the amount of $89.99;
v. Watson gloves – The Duke unlined, in the amount of $89.99; and
vi. TAG Heuer Carrera Day-Date watch, in the amount of $4,150.00.
20The applicant submits that these items were destroyed in the collision and the costs of these items are recoverable under the Schedule, as they are reasonable and necessary expenses incurred to replace the listed items.
21The respondent submits that the applicant has not provided evidence that the clothing he was wearing at the time of the accident was lost or damaged as a result of the accident. The respondent further submits that the cost of the item 6, the TAG Heuer watch is not covered under s. 24 of the Schedule.
22The applicant, in his reply submissions, states that the respondent failed to engage with his claim for nearly four years, and as such, it is unreasonable to demand documentary proof of a claim never investigated in a timely way.
23The applicant has not directed me to any evidence that the purported items were damaged as a result of the accident. I appreciate the submission that there has been a significant length of time since the accident and the application, however, without evidence of loss or damage, I find that it would not be reasonable and necessary for the respondent to reimburse these costs.
24As such, I find that the applicant is not entitled the expenses identified in the OCF-6, dated December 22, 2023.
The Prescription Expenses
25I find that the applicant is not entitled to the prescription expenses.
26Although the applicant did not provide a copy of the OCF-6, dated March 31, 2023, the respondent refers to an OCF-6, dated February 2, 2023, in its submissions, for a total of $186.51 and itemises the following:
i. Rx Mint-Fluoxetine, in the amount of $16.83, dated March 4, 2022;
ii. Rx Mint-Fluoxetine, in the amount of $49.02, dated April 1, 2022;
iii. Rx Mint-Fluoxetine, in the amount of $34.15, dated May 25, 2022;
iv. Rx Mint-Fluoxetine, in the amount of $77.63, dated December 28, 2022; and
v. Rx Apo-Acetaminophen, in the amount of $8.88, dated December 28, 2022.
27The OCF-6, dated December 12, 2023, itemises the following:
i. Mint-Fluoxetine in the amount of $34.15, dated May 25, 2022; and
ii. Fluoxetine in the amount of $13.49, dated April 26, 2023
28The applicant submits that these medications were prescribed to address the chronic pain and severe depression that he continues to experience as a result of the accident. The applicant submits that their use is reasonable and necessary and directly related to his accident-related impairments.
29The respondent submits that item 3 on the February 2, 2023 OCF-6, and item 1 on the December 12, 2023 OCF-6, are duplicates and the same item is claimed twice. The respondent further submits that no receipts have been provided for items 4 and 5 of the OCF-6 dated February 2, 2023, and the applicant has not provided proof that any of the prescriptions claimed were prescribed by a medical practitioner as a direct result of the accident.
30I have reviewed the prescription receipts provided by both the applicant and respondent. While the applicant submits that the prescribed medication was to treat his persistent psychological symptoms, the applicant has not directed me to corroborating evidence to support this claim. More specifically, I am not provided with the CNRs of the prescribers, Dr. Parry Matthew, and Dr. TM Alam, to ascertain whether these prescriptions were prescribed as a result of accident-related impairments. I am also not pointed to the receipts for items 4 and 5 on the OCF-6 dated February 2, 2023.
31Given the above, I find that there is a lack of evidence to support that the purported prescription expenses are reasonable and necessary. The applicant is therefore not entitled to a reimbursement for the prescription expenses.
Interest
32As there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Award
33The 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.
34As there are no benefits owing, the applicant is not entitled to an award.
COSTS
35Rule 19.1 provides that a party may request costs of the proceeding if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith during the proceedings.
36The applicant submits that the respondent’s conduct was wholly unreasonable, inexplicable, and in bad faith. The applicant submits that the respondent ought to have provided him the opportunity to claim the full 5 years of medical, rehabilitation, attendant care benefits, and NEBs, but lost the chance due to the respondent’s delay.
37While I am alive to the applicant’s submissions of the respondent’s delay in notifying the applicant of his access to accident benefits, Rule 19.1 may award costs where a party’s conduct falls below the standard of reasonableness expected in Tribunal proceedings. The applicant’s allegation of the respondent’s unreasonable conduct is not related to the conduct of the respondent during the within proceedings. The applicant has also not directed me to evidence of unreasonable behaviour, nor has made submissions, with respect to the respondent’s conduct during Tribunal proceedings.
38As such, I find that the applicant has not met the test set out in Rule 19.
ORDER
39I find that:
i. I do not have jurisdiction under s. 280 of the Insurance Act, RSO 1990, c I.8, to determine entitlement to NEB;
ii. The applicant is not entitled to reimbursement for expenses listed on the OCF-6 dated December 22, 2023;
iii. The applicant is not entitled to reimbursement for expenses listed on the OCF-6 dated December 13, 2023;
iv. The applicant is not entitled to reimbursement for expenses listed on the OCF-6 dated March 31, 2023;
v. The applicant is not entitled to interest pursuant to s. 51 of the Schedule;
vi. The respondent is not liable to pay an award;
vii. The applicant is not entitled to costs; and
viii. The application is dismissed.
Released: March 3, 2026
Nadia Mauro
Adjudicator