Citation: Oelkers v. Intact Insurance Company, 2026 ONLAT 24-011451/AABS

Licence Appeal Tribunal File Number: 24-011451/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:

Trinity Oelkers

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Mehrdad Salehi-Moghaddam, Counsel

For the Respondent: Jenna Ng, Counsel

HEARD: By way of written submissions

OVERVIEW

1Trinity Oelkers, the applicant, was involved in an automobile accident on November 4, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2The preliminary issue in dispute is:

i. Is the applicant barred from proceeding to a hearing for all the benefits claimed in this applicant because the applicant failed to dispute their denial within the 2-year limitation period?

SUBSTANTIVE ISSUES

3The issues in dispute are:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from January 10, 2022 to November 4, 2022?

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

4For the reasons outlined above, I find that the applicant is barred pursuant to s. 56 of the Schedule from proceeding with her application. I decline to exercise my discretion to extend the limitation period. The application is dismissed, and the substantive hearing is vacated.

PROCEDURAL ISSUES

5The respondent submits that the applicant has not complied with the terms of the Case Conference Report and Order (“CCRO”). Specifically, she has failed to provide particulars of the award claim within 30 days after receipt of the adjuster’s log notes on February 5, 2025. In addition, the applicant’s submissions were not sent to counsel for the respondent until two days prior to the respondent’s submissions being due. The respondent argues that this was only after three separate emails had been sent to the applicant’s counsel asking if submissions were going to be filed and if the hearing was proceeding.

6The applicant did not provide a response to the respondent’s submissions.

7While I agree that the applicant did not provide particulars of the award claim and failed to provide her submissions to the applicant within the time frames of the CCRO, the respondent has not indicated what relief if any it is seeking. Therefore, I do not make any orders in respect to these actions.

ANALYSIS

Compliance with s. 56 of the Schedule

8For the reasons that follow, I find that the applicant did not dispute the denial of entitlement to a Non-Earner Benefit (“NEB”) within the 2-year limitation period.

The Law

9The limitation period for accident benefits claims is set out in s. 56 of the Schedule. It states that an application to dispute a denial of a benefit shall be commenced within two years of the insurer’s refusal to pay the benefit. In order for s. 56 of the Schedule to be triggered, the insurer must have provided a valid notice of the denial.

10The Supreme Court of Canada in Smith v. Co-Operators General Insurance Co., 2002 SCC 30 (“Smith v. Co-Operators”), held that the refusal to pay the benefit must contain straightforward and clear language, it must be directed towards an unsophisticated person, it must outline the dispute resolution process and the relevant time limits that govern the process.

11Section 32(1) of the Schedule provides that a person who intends to apply for one or more benefits described in this Regulation shall notify the insurer of his 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. Pursuant to s. 32(2)(d), the insurer shall promptly provide the person with information on the election relating to income replacement, non-earner and caregiver benefits, if applicable.

12Section 36(4) of the Schedule 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 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).

Background and Parties Positions

13The applicant was involved in a motor vehicle accident on November 4, 2021. She submitted an Application for Accident Benefits (“OCF-1”) to the respondent on November 15, 2021, which stated that she was self-employed at the time of the accident from January 2018 to date as the owner of Trins Beauty Lab Co.

14By letter dated November 29, 2021, the respondent wrote to the applicant acknowledging receipt of her OCF-1 and advising her that it had not yet received a Disability Certificate (“OCF-3”). The letter notes that a review of her claim confirms that she may be entitled to an income replacement benefit (“IRB”).

15On January 10, 2022, an OCF-3 was submitted on the applicant’s behalf by Whitby Physiotherapy and Rehabilitation Centre. The OCF-3 notes that the applicant was self-employed at the time of the accident but has returned to reduced hours due to pain caused by the subject accident. It further notes that she suffers a substantial inability to perform the essential tasks of her employment and a complete inability to carry on a normal life. Disability is indicated for 9-12 weeks.

16On January 12, 2022, the respondent acknowledged receipt of the applicant’s OCF-3. It advised the following:

In your application, you have stated that you were employed at the time of the accident and have missed time from work as a result of your accident-related injuries. The Disability Certificate (OCF-3) confirms that you have suffered a substantial inability to perform the essential tasks of your occupation.

You are entitled to receive an Income Replacement Benefit in accordance with s. 36(4) of the Statutory Accident Benefits Schedule (SAB).

As you may be aware, the Non-Earner Benefit is available to those who do not qualify as employed and who suffer a complete inability to carry on a normal life as a result of the accident. For the purposes of the Statutory Accident Benefits Schedule (SABs), a person suffers a complete inability to carry on a normal life if, as a result of the accident, the person sustains an impairment that continuously prevents him/her from engaging in substantially all of the activities that he/she ordinarily engaged at the time of the accident.

As per your Application for Accident Benefits (OCF-1), we confirm you were employed at the date of loss; therefore you are not eligible for the Non-Earner Benefit.

17By letter dated January 18, 2022, a financial specialist for the respondent, wrote to the applicant’s counsel and advised that the respondent had requested their assistance in calculating the applicant’s weekly IRBs, and requested various information to commence those calculations.

18By letter dated February 15, 2022, the respondent confirmed that the applicant was currently eligible to receive IRBs. Section 44 examinations were requested to determine ongoing entitlement to the benefit, as the anticipated duration of 9-12 weeks indicated on her OCF-3 had now passed.

19By telephone and email dated March 10, 2022, the applicant’s counsel advised the respondent that the applicant was no longer claiming IRBs and did not want to attend s. 44 examinations. She requested that all upcoming assessments be cancelled.

20By correspondence dated March 11, 2022, the respondent confirms that further to the conversation and email correspondence received from the applicant’s legal representative on March 10, 2022, it has been advised that the applicant is no longer pursuing a claim for IRBs. As such, her eligibility for an IRB discontinued as of March 18, 2022. The letter dated March 11, 2022, then sets out that a NEB is available to those that do not qualify to receive an IRB and who suffer a complete inability to carry on a normal life. It advises that at this time based on the medical documentation submitted, it “does not appear that you suffer a complete inability to carry on a normal life”. It then advises that should she wish to apply for the NEB, to provide an updated OCF-3 by April 1, 2022. The respondent attached an Applicant’s Right to Dispute Addendum explaining her rights and responsibilities should she wish to dispute the respondent’s decision.

21There was no response provided to this letter and no evidence that an updated OCF-3 was provided.

22On July 15, 2024, the applicant’s counsel sent the respondent an email enclosing a settlement proposal. The proposal was not provided for the Tribunal’s review. On August 13, 2024, the respondent replied to the settlement offer. While the applicant refers to various correspondence between the parties, a copy of these letters has not been provided for review by the Tribunal due to settlement privilege. On September 13, 2024, the applicant filed the within Application with the Tribunal disputing the NEB denial, interest and an award.

23The respondent submits that it provided a clear and unequivocal denial of the applicant’s NEB claim on January 12, 2022, and in the alternative or in conjunction with its denial on March 11, 2022, which triggered the two-year limitation period under s. 56 of the Schedule. However, the applicant did not dispute the denial until September 13, 2024, when she submitted her Application to the Tribunal, after the expiration of the two-year limitation period set out in s. 56 of the Schedule. The respondent cites a number of decisions to argue that denying an NEB claim on the basis that a claimant is entitled to IRBs, is a valid denial and compliant with s. 36(4)(b) of the Schedule. It further argues that an OCF-10 election of benefits form was not required in the present circumstances, since the applicant submitted an application indicating that she was entitled to IRBs and had been found to be entitled to IRBs by the respondent.

24The applicant submits that the s. 56 limitation period was not triggered, since the respondent’s denial letters did not comply with the procedural requirements of s. 32(2)(d) and s. 36(4) of the Schedule. The procedural breaches include its failure to (i) invite a benefit election under s. 32(2)(d); (ii) issue a valid and clear denial of NEBs; and (iii) provide proper notice under s. 36(4). She argues that her OCF-3 established that she was qualified for both IRBs and NEBs. She submits that the January 12, 2022 letter acknowledged the OCF-3 but denied NEBs without any limitation warning or full explanation. She further submits that the March 11, 2022 letter focused on IRBs and did not clearly deny NEBs. She therefore submits that the limitation was never properly triggered due to these procedural deficiencies.

The respondent’s denial was valid

25I find that the respondent’s denial of the NEB claim was valid and triggered the s. 56 two-year limitation period.

26I find that the January 12, 2022 letter was a clear and unequivocal denial of the applicant’s NEB claim. The letter referenced the applicant’s application in which she had stated that she was employed at the time of the accident and had missed time from work as a result of her accident-related injuries, in addition to the OCF-3 confirming that she had suffered a substantial inability to perform the essential tasks of her occupation. It confirmed that she was entitled to receive IRBs in accordance with s. 36(4) of the Schedule and requested additional information pertaining to her being self-employed. She was therefore not eligible to receive a NEB. The letter specifically states, “As per your Application for Accident Benefits (OCF-1), we confirm you were employed at the date of loss; therefore you are not eligible for the Non-Earner Benefit”. Therefore, a clear reason for the denial was given, being that the applicant was not entitled to NEBs, because she was entitled to IRBs instead. I do not agree with the applicant that this letter was ambiguous because it clearly states she is entitled to an IRB and denies entitlement to a NEB.

27I accept the applicant’s argument that the respondent did not provide dispute resolution information within this letter. However, it is clear from the respondent’s subsequent correspondence on January 18, 2022 and February 15, 2022, that it had found the applicant entitled to an IRB and was proceeding with requests for documentation in support and requested a s. 44 assessment. I find at no point did the applicant advise the respondent that she was not proceeding with her claim for an IRB or that she was instead seeking a NEB. I find that the respondent’s subsequent letter dated March 11, 2022, confirms that despite finding the applicant entitled to an IRB, she has chosen not to pursue IRBs. It then states that it has found she does not appear to suffer a complete inability to carry on a normal life. It invites her to provide an updated OCF-3 should she wish to apply for non-earner benefits. The letter then provides information on the applicant’s right to dispute the denial, including the two-year limitation period, and provided information on the dispute resolution process. As such, I find that the respondent’s denial letters complied with the principles set out in Smith v. Co-Operators, by providing a clear denial of her NEB and providing information on the dispute resolution process.

28I further find that despite these letters, no response was received from the applicant. The applicant did not provide an updated OCF-3 as requested in the March 11, 2022 letter and did not submit any s. 25 reports. In addition, from the evidence provided, there is no communication at all between the parties about her entitlement to IRBs or NEBs, until the applicant provided a settlement proposal over two and a half years later on July 15, 2024, followed by an application to the Tribunal filed on September 13, 2024.

29I further am not persuaded by the applicant’s argument that the denial was non-compliant with s. 32(2)(d) of the Schedule, as she was not provided with an election of benefits. I find the decisions cited by the respondent on this point to be persuasive. In Tribunal decisions Ekefre v. TD Home and Auto Insurance Company, 2024 CanLII 115416 (ON LAT), Chan v. Security National Insurance Company, 2025 CanLII 5887 (ON LAT), Lakshman v. Belair Direct Insurance Company, 2023 CanLII 72657 (ON LAT) and Vahed v. Co-Operators General Insurance Company, 2025 CanLII 58808 (ON LAT), the Tribunal consistently found that a denial stating that a claimant is not entitled to NEBs because they were eligible for IRBs, is a valid denial. The applicant has not provided any caselaw in support of her position that an OCF-10 was requested in these circumstances. I also find that s. 32(2) requirements are not denial letter requirements and the specified denial requirements are under s. 36(4) of the Schedule.

30In addition, even if I were to accept the applicant’s argument that an OCF-10 election was required in this case, I agree with the reasoning in Ekefre and the Court of Appeal decision in Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111. Namely, that a clear and unequivocal denial is sufficient to trigger a limitation period, even if legally incorrect reasons were provided.

31Accordingly, I find that the respondents January 12, 2022 and March 11, 2022 denial letters meet the requirements in Smith v. Co-Operators and triggered the two-year limitation period.

Is an extension of the limitation period warranted pursuant to s. 7 of the Licence Appeal Tribunal Act

32I find that the applicant has not established that an extension of the limitation period pursuant to s. 7 Licence Appeal Tribunal Act, 1999, S.0. 1999, c. 12, Sched. G. (the “LAT Act”), is warranted.

33Pursuant to s. 7 of LAT Act, the Tribunal has the statutory discretion to extend the two-year limitation period in s. 56 of the Schedule if the Tribunal is satisfied that there are reasonable grounds for applying the extension and granting relief.

34When considering whether to exercise discretion under s. 7, the Tribunal considers the following four factors set out in the Divisional Court in Manuel v. Registrar, 2021 ONSC 1492: (i) the existence of a bona find intention to appeal within the limitation period; (ii) the length of the delay; (iii) the prejudice to the other party; and (iv) the merits of the appeal. These factors are not strict elements that must be met in order to grant an extension of time, and no one factor is determinative. Rather, a holistic approach must be taken to the analysis. The Court indicated that these factors are subject to the broader rule that an extension should not be granted unless the “justice of the case” requires it. It is the applicant’s onus to establish that there are reasonable grounds for granting an extension.

35The applicant submits that the doctrine of discoverability as set out in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 is applicable. She argues that she only discovered her entitlement to NEBs during the appeal period when it became clear no valid denial had been issued. She further argues that both parties mistakenly assumed that the January 12, 2022 letter was effective until a more thorough review revealed its deficiency. She claims that her conduct demonstrates a timely and genuine effort to advance her claim. The respondent was aware of her intention to dispute the denial, and any delay was reasonable in the circumstance. The applicant submits that there was only a four- week delay between her interaction with the respondent on August 13, 2024 and her filing of her LAT application on September 16, 2024.

The existence of a bona fide intention to appeal

36The applicant submits that she only discovered her entitlement to NEBs during the appeal period when it became clear no valid denial had been issued. She argues that the respondent was aware of her intention to dispute the denial, and any delay was reasonable in the circumstances.

37I find that following the respondent’s denial of her NEBs, there is no evidence submitted that the applicant disputed her entitlement to a NEB or communicated with the respondent. It was not until two and a half years after the denial, that the applicant attempted to settle her claim and questioned the denial of her NEBs. I find that there is no evidence provided that any communication took place between the parties about the applicant’s injuries or entitlement to benefits during the two and a half years. While she claims that the respondent knew of her intention to dispute the denial in August of 2024, this was well past the limitation period.

Length of the Delay

38The applicant claims that there was only a four-week delay between the parties last interaction on August 13, 2024 and filing of her application with the Tribunal on September 16, 2024.

39I do not agree that the length of the delay was only four weeks. The limitation period began to run on March 11, 2022. Therefore, the length of the delay was actually from March 11, 2024 to September 16, 2024 when she filed her application. I find that a six month delay is significant in this matter.

Prejudice to the other party

40The applicant submits that the respondent suffered no prejudice from the brief delay. She claims that she remained engaged and did not abandon her claim.

41The Divisional Court in Manuel found that the decision-maker is to focus on the prejudice to the other party, in this case, the respondent insurance company.

42On this point, I find that the respondent would be prejudiced if the limitation period was extended. I find that following the respondent’s denial, the applicant did not submit an OCF-3 and there is no evidence that she provided further medical documentation to the respondent in respect to her claim. It was not until July 2024, that she contacted the respondent to discuss settlement. Therefore, the respondent’s ability to obtain necessary assessment reports to evaluate the applicant’s injuries and determine her entitlement to a NEB were hindered. As such, I find that granting a further six-month extension of the limitation period in this case would be prejudicial to the respondent.

The merits of the appeal

43The applicant submits that the underlying dispute has merit. She relies upon the OCF-3 submitted to support her entitlement to a NEB. No further medical evidence was submitted.

44I find that the preliminary issue in this matter was to be heard with the substantive issues. I find that the applicant’s submissions deal primarily with the preliminary issue and her only submission re entitlement to a NEB is her OCF-3 and the procedural non-compliance of the respondent. I agree with the respondent that the applicant has not provided any submissions of a comparison between her normal life before and after the accident to meet the complete inability test. I therefore find that I have limited medical evidence to rely upon to determine whether the underlying dispute has merit.

Summary

45Based on the factors in Manuel, I find that the applicant has not established that there are reasonable grounds for granting an extension. The applicant has not pointed me to sufficient evidence on the merits of the appeal and the delay in the proceeding is prejudicial to the respondent. While I accept that the applicant may have communicated a bona fide intention to appeal in August 2024, this was over two and a half years after the denial and six months after the limitation period expired.

ORDER

46For the reasons outlined above, I find that the applicant is barred pursuant to s. 56 of the Schedule from proceeding with her application. I decline to exercise my discretion to extend the limitation period. The application is dismissed and the substantive hearing is vacated.