Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-007201/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:
Andrew Anning
Applicant
and
TD General Insurance Company
Respondent
DECISION
VICE-CHAIR:
Julian DiBattista
APPEARANCES:
For the Applicant:
Anthony Gullo, Counsel
For the Respondent:
Lyrica Roche, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Andrew Anning, the applicant, was involved in an automobile accident on May 3, 2023, 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, TD General 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 (“NEB”) of $185.00 per week from June 3, 2023 to ongoing?
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
3I find that the applicant is not entitled to an NEB, an award under s.10 of Reg 664 or interest.
4This application is dismissed.
ANALYSIS
The applicant is not entitled to a non-earner benefit
5Section 12(1) 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, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
6Section 12(1)1 further specifies that an insured person is eligible for an NEB only if they do not qualify for an income replacement benefit (“IRB”).
Medical reasons are not required when non-medical reasons are given to deny a specified benefit
7I find that the applicant is not entitled to an NEB.
8The applicant submits that the respondent did not provide medical and other reasons on denial letters for NEB in accordance with s. 36(4)(a) of the Schedule. The applicant specifically submits that the letters fail to set out the medical and any other reasons for the denial
9The respondent submits that the applicant continually represented that he was working at the time of the accident and qualified for an IRB, and therefore does not qualify for an NEB. In support of their position, the respondent cites Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78. (“Varriano”)
10I agree with the respondent.
11On September 29, 2023, a Disability Certificate (OCF-3) was submitted to the respondent by Shoreham Chronic Pain and Assessment. This OCF-3 indicates that the applicant suffers a complete inability to carry on a normal life.
12In this OCF-3, the applicant indicated that he was working at the time of the accident. He identified the date of the accident, May 3, 2023 as the last date on which he worked.
13On October 5, 2023, the respondent sent a letter which denied the NEB for the following reasons:
Based on your Application for Accident Benefits (OCF-3), Dr. Donald Wong has indicated that you suffer a complete inability to carry on a normal life, however as you may qualify for the Income Replacement Benefit, you are not eligible to the benefit at this time.
14The letter noted that Dr. Donald Wong (chiropractor) has determined that the applicant suffers from a substantial inability to perform the essential tasks of his pre-accident employment and may be entitled to this benefit.
15The insurer requested the Employer’s Confirmation Form (OCF-2), pay stubs for the 4 weeks prior to the accident, any post accident pay stubs, short term and long term disability benefits information and an Employment Insurance (“EI”) Sick Benefits completed application.
16The insurer sent a letter to the applicant dated October 24, 2023 which noted that the OCF-2 submitted indicated the applicant was employed from March 6, 2023 to April 19, 2023. As a result, the insurer was unable to determine if the applicant was employed at the time of the accident or if he was employed in 26 of the 52 weeks prior to the accident. The insurer requested additional OCF-2 forms for any other employment the applicant held between May 3, 2022 and May 3, 2023, pay stubs or details of EI payments for that same period.
17The insurer sent a letter to the applicant requesting a new OCF-3 on January 9, 2024. The insurer imposed a deadline of February 9, 2024 for receipt of the OCF-3 and stated they will pay the cost of completing the form. The insurer further specified that if the form was not submitted by February 9, 2024, the applicant’s entitlement to IRB would be halted.
18On February 12, 2024 the insurer sent a letter to the applicant advising that their IRB entitlement is halted as of February 9, 2024 as an updated OCF-3 was not received.
19On April 14, 2024, the insurer sent a letter to the applicant advising that they were not entitled to an IRB as s.44 assessors found the applicant did not meet the medical test.
20On June 4, 2024, an updated OCF-3 was submitted from Dr. Wong. This OCF-3 indicated that the applicant was working at the time of the accident, that the last date worked was May 3, 2023, the date of the accident and that the applicant worked at least 26 of the previous 52 weeks prior to the accident or was receiving EI benefits during this time.
21On June 17, 2024, the insurer sent a response to the completed OCF-3 where they stated:
Although your OCF-3 indicated that you suffer a complete inability to carry on a normal life, you are not eligible for this benefit as you may be eligible for the Income Replacement Benefits. In order to further determine your eligibility, you are required to attend Insurer’s Examinations under section 44 of the SABS. Further details will be provided to you as soon as possible.
22On June 26, 2024, the insurer sent a letter notifying the applicant of the date, times, places and assessors of the s.44 assessments.
23On October 8, 2024, the insurer sent a letter to the applicant advising that as a result of s.44 assessments, they found the applicant did not meet the test to receive an NEB.
24On March 2, 2025 the insurer sent a letter to the applicant scheduling s.44 assessments for the purposes of evaluating NEB.
25Section 12(1) of the Schedule outlines 3 criteria under which an insured would qualify for an NEB. All three criteria require that the insured suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident while requiring one of three additional considerations:
i. That the applicant does not qualify for an income replacement benefit;
ii. That the applicant was enrolled on a full-time basis in elementary, secondary or post-secondary education at the time of the accident; or
iii. That the applicant completed his or her education less than one year before the accident and was neither employed nor a self-employed person after completing his or her education and before the accident, in a capacity that reflected his or her education and training.
26The respondent in each of their letters noted that the NEB was denied as the applicant may qualify for an IRB. This denial is aligned with s. 12(1) of the Schedule, which outlines non-medical eligibility criteria for the NEB.
27In Varriano the Ontario Court of Appeal found the requirement for “medical and other reasons” in the Schedule does not require a medical reason be provided if a benefit is denied for a non-medical reason. Varriano is binding on me.
28As, the respondent denied the benefit for a non-medical reason, I am bound by Varriano to find that the respondent is not required to provide a medical reason for the denial, if one does not exist.
29I therefore find that the applicant is not entitled to the disputed benefit.
Interest
30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits overdue, interest is not payable.
Award
31The 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.
32As I have found that no benefits were withheld, there is no entitlement to an award.
ORDER
33For the reasons above I order that:
i. The applicant is not entitled to a Non-Earner Benefit;
ii. The applicant is not entitled to interest; and
iii. The applicant is not entitled to an award under s. 10 of Reg 664.
34This application is dismissed.
Released: January 12, 2026
Julian DiBattista
Vice-Chair