Citation: Alapit v. CAA Insurance Company, 2026 ONLAT 24-009287/AABS

Licence Appeal Tribunal File Number: 24-009287/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:

Marcelina Alapit

Applicant

and

CAA Insurance Company

Respondent

DECISION

VICE-CHAIR:

Brian Norris

APPEARANCES:

For the Applicant:

Joshua Gautreau, Counsel

For the Respondent:

Kathleen F. O'Hara, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Marcelina Alapit (“the Applicant”) was involved in an automobile accident on December 10, 2023, and sought benefits from CAA Insurance Company (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing are:

1. Is the Applicant entitled to income replacement benefit (“IRBs”) in the amount of $153.71 per week for the period from December 5, 2024, to January 8, 2025, and from March 3, 2025 to-date and ongoing?

2. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

3. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3The Applicant is entitled to IRBs in the amount of $153.71 per week for the period from December 5, 2024, to January 8, 2025.

4The Applicant is entitled to IRBs in the amount of $153.71 per week, for the period from March 3, 2025, to-date and ongoing.

5Interest is payable pursuant to section 51 of the Schedule.

6The Applicant is entitled to an award of 30% of the IRBs withheld for both periods, plus applicable interest.

CLARIfying the issues in dispute

7The Applicant’s submissions state that the Respondent has not denied IRBs and, instead has refused to pay IRBs based on section 33(6) of the Schedule during two distinct periods: the first period starting December 5, 2024, and ending January 8, 2025; and the second period starting February 28, 2025 to date and ongoing. Her submissions were silent on the weekly quantum of IRBs claimed.

8The Respondent’s submissions take the position that the Applicant cannot demonstrate entitlement to past or ongoing IRBs due to insufficient evidence. It also highlights that the Applicant’s submissions are silent on the issue of her weekly quantum of IRBs and infers that she concedes that the weekly quantum is $153.71, and not $400.00 per week, as outlined in the Case Conference Report and Order, dated November 22, 2024.

9I agree with the Applicant and find that the dispute pertains to the periods covering the section 33 stoppages. This is because the Respondent has not issued a denial of IRBs. Thus, there is no dispute as to whether the Applicant qualifies for IRBs and she has correctly framed the issue as a dispute regarding the validity of the Respondent’s section 33 stoppages.

10I agree with the Respondent regarding the quantum of the Applicant’s weekly IRB payable. I find that her silence on the quantum of IRBs payable, combined with her framing of the issue in dispute, indicates that she agrees that the weekly quantum in dispute is $153.71. I have adjusted the issues in dispute accordingly.

BACKGRoUND

11The Applicant was the driver of a vehicle which was struck by another vehicle while attempting a left turn in an urban intersection. She was taken to the hospital following the accident, and reports that she sustained injuries to her pelvis, ribs, and a concussion.

12The Applicant applied for accident benefits on January 5, 2024, by submitting an OCF-1 that was undated (“the first OCF-1”). The first OCF-1 states that the Applicant was employed at a department store and as a self-employer immigration consultant at the time of the accident. The first OCF-1 also states that the Applicant was employed with a casino prior to the accident within the past year. The first OCF-1 also checks off a box that states that the Applicant’s accident-related injuries do not prevent her from working.

13On January 18, 2024, the Respondent received another OCF-1 from the Applicant, dated December 2, 2023 (“the second OCF-1”). The second OCF-1 states the same employment information as the first OCF-1. It lists one employer and one source of self-employment income at the time of the accident, and employment with a casino in the year prior to the accident, but not at the time of the accident. The second OCF-1 also maintains that the Applicant’s injuries do not prevent her from working.

14The Applicant submitted a third OCF-1 (“the third OCF-1”). The third OCF-1 is dated January 5, 2024, the same date as the first OCF-1, but it is unclear when it was delivered to the Respondent. The third OCF-1 lists only one employer and no sources of self-employment income. The third OCF-1 states that the Applicant’s injuries prevent her from working and that her last date of employment was December 10, 2023.

15On or around January 18, 2024, the Applicant submitted an OCF-2 for her employment with the department store and the casino. The OCF-2 is undated and not completed by the Applicant’s employer. No income information is included in the OCF-2, despite prompts for it in the document.

16Also, on or around January 18, 2024, the Respondent received an OCF-3 completed by a nurse practitioner, dated January 8, 2024. According to submissions, that OCF-3 endorsed that the Applicant suffers a substantial inability to complete the essential tasks of her employment. However, the OCF-3 is not in evidence before me, and it is unclear what employment the document is referring to.

17On January 26, 2024 the Respondent confirmed receipt of the OCF-3 and the OCF-2 that the Applicant completed. The Respondent requested that the Applicant provide OCF-2s completed by her employers and pay stubs to substantiate her income prior to the accident.

18On April 8, 2024, the Applicant sent the Respondent an OCF-2 related to her work with the casino.

19On July 24, 2024, the Applicant sent the Respondent an OCF-2, completed by her employer at the department store. The time period of her employment is slightly different than what was reported by the Applicant in the unsigned OCF-2s, and this document included confirmation of her employment income earned during her employment there. The discrepancy with respect to the timing of her employment is minor and has little impact on the overall accounting of the Applicant’s IRBs.

20On August 6 and September 5, 2024, the Applicant sought an update from the Respondent regarding the payment of IRBs. No additional documents were provided by the Applicant and there is no indication before me that the Respondent replied to the requests.

21On October 11, 2024, the Respondent requested information from the Applicant, including a completed OCF-2 for the period from November 1, 2022 to December 8, 2023, as well as an updated OCF-3.

22On October 30, 2024, the Applicant re-sent the OCF-2 completed by the department store. No other information was provided.

23On November 20, 2024, the Respondent requested the Applicant’s tax returns, clarification on her income from self-employment, an OCF-2 completed by the Casino, as well as paystubs.

24On December 9, 2024, the Applicant advised the Respondent that she was unable to get paystubs from the department store because of the postal strike. In return, the Respondent asked if tax returns could be provided as they are available online.

25On January 7, 2025, the Applicant wrote to the Respondent, stating that enough information has been provided to calculate IRBs and that the situation is urgent as the Applicant has been forced to stay in a shelter for people experiencing homelessness. The Applicant’s precarious housing situation is ongoing and appears to remain the case to-date.

26On January 8, 2025, the Respondent wrote the Applicant and confirmed that they were advised of her self-employment at the time of the accident. It reiterated requests for an OCF-2 from the casino.

27On January 14, 2025, the Respondent wrote to the Applicant and confirmed the receipt of the following:

i. OCF-2 from the department store, completed July 22, 2024 and received July 24, 2024;

ii. An OCF-2 from the casino, dated February 7, 2024 and received January 8, 2025 (although this document was previously emailed to the Respondent on April 9, 2024); and

iii. An OCF-3 dated January 8, 2024, received January 18, 2024.

28Also in the January 14, 2025 letter, the Respondent advised that it calculated the Applicant’s IRBs to be $153.71 per week. It advised that a lump sum payment of $7,333.50 will be made, plus interest for the period from February 1 to November 20, 2024, in the amount of $306.01. The Respondent advised that no IRBs are payable for the period from December 5, 2024, to January 8, 2025, based on the Applicant’s non-compliance with the requests for information. The letter also confirms that their calculation of the IRBs payable does not include any income from the Applicant’s self-employment because she had provided no evidence of income from it for the last completed taxation year.

29In a separate letter, dated January 14, 2025, the Respondent requested that the Applicant provide information from 13 sources. The request for information includes, but were not limited to, clinical notes and records (“CNRs”) from healthcare providers, prescription summaries, and income information from her self-employment.

30On February 28, 2025, the Respondent wrote to the Applicant and advised that it never received the information requested on January 14, 2025, and that her IRBs would cease effective March 3, 2025, due to a failure to provide information.

31In response, the Applicant wrote to the Respondent on March 21, 2025 and asked that it stop the requests for income information and stated that the Respondent has sufficient information to calculate IRBs.

32In a separate email on March 21, 2025, the Applicant disclosed documents from five sources. In the same email, the Applicant also disclosed request letters for six other businesses that have yet to be answered by those businesses.

33In a responding letter, dated March 28, 2025, the Respondent maintained that it requires the CNRs and other information from the remaining six sources. The request was reiterated in another letter, dated July 15, 2025.

34In response, and following an examination under oath, the Applicant provided banking information to the Respondent on July 18, 2025.

ANALYSIS

The Law

35Pursuant to section 36(2), an application for a specified benefit, such as IRBs, shall include a completed disability certificate. Pursuant to section 36(3) of the Schedule, the Respondent is not required to pay an IRB for any period before a disability certificate is submitted.

36Section 36(4) of the Schedule provides three options for insurers when responding to the application for a specified benefit: it can pay IRBs, it can deny payment of IRBs with notice explaining the medical and any other reasons for the decision, or it can request additional information reasonably required to assist the Respondent in determining the entitlement to the benefit, or a statutory declaration, pursuant to section 33(1) of the Schedule.

37Section 33(1)1 permits the Respondent to seek any information reasonably required to assist it in determining the Applicant’s entitlement to a benefit. Subsection 33(6) provides that an insurer is not liable to pay a benefit in respect of a period which the insured person fails to comply with the request.

38Section 33(8) of the Schedule provides that if an insured person who failed to comply with section 33(1) or 33(2) subsequently complies, the insurer shall (a) resume payment of the benefit if it was being paid, and (b) shall pay all amounts that were withheld during the period of non-compliance, if the insured person provides a reasonable explanation for the delay in complying.

The Respondent’s response to the application for IRBs is compliant with the Schedule

39I find that the Applicant applied for a specified benefit on January 18, 2024, when she submitted a disability certificate to the Respondent. I further find that the Respondent replied to the application for IRBs on January 26, 2024. In that letter, the Respondent confirmed receipt of the disability certificate and requested a completed OCF-2 because the first OCF-2 was not completed by the Applicant’s employers.

40The Respondent was within its right to ask for the completed OCF-2, as outlined in section 36(4) of the Schedule. The Respondent opted not to pay the benefit, and not to send the Applicant to an IE, but instead exercised the third option and requested information reasonably required to calculate the Applicant’s IRBs.

41I find that the Respondent’s request of January 26, 2024, seeking OCF-2s completed by the applicant’s employers, as well as pay stubs, to be information reasonably required to assist it in determining the Applicant’s entitlement to IRBs. This is because the documents provided at this time were inconsistent and there was no third-party confirmation of the Applicant’s pre-accident employment, as required to complete an OCF-2.

Improper suspension of benefits during the period from December 5, 2024 to January 8, 2025

42I find that the Applicant has a reasonable explanation for the purported non-compliance during the period from December 5, 2024 to January 8, 2025. Thus, she is entitled to IRBs for this period.

43The Respondent’s letter, dated January 14, 2025, confirms receipt of the Applicant’s OCF-3, on January 18, 2024, and two OCF-2 documents. One OCF-2 is noted to be received on July 24, 2024, and the other is incorrectly noted to have been received on January 8, 2025. The evidence demonstrates that the document was emailed to the Respondent as early as April 8, 2024.

44The January 14, 2025 letter also states that the Applicant was not compliant with providing information requested by way of section 33 of the Schedule. Thus, the Respondent advised the Applicant that it was not paying IRBs for the period from December 5, 2024 to January 8, 2025 due to the perceived non-compliance. Yet, the January 14, 2025 letter does not refer to the documents requested that were never provided, nor does the letter state when the initial request was made. Simply put, the Respondent did not provide the reasons for determining there was a period of non-compliance in the letter.

45The evidence demonstrates that the Applicant provided the requested documents prior to December 5, 2024. As noted in the background section above setting out the chronology of this dispute, the Applicant submitted an OCF-3 by January 18, 2024, the OCF-2 from the casino on April 8, 2024, and the OCF-2 from the department store on July 24, 2024. If anything, it appears that the Respondent misplaced the OCF-2 received via email on April 8, 2024, and needed it to be resent on January 8, 2025, and is incorrectly trying to place the blame on the Applicant.

46Additionally, the Applicant has a reasonable explanation for a delay in providing documents during the period from December 5, 2024, to January 8, 2025. As noted by her counsel in the correspondence, dated December 9, 2024, the Applicant had difficulty getting additional pay stubs due to the postal strike. Then, as noted in the January 7, 2025 correspondence, the Applicant’s housing situation became precarious and she was facing homelessness, and the prospect of living in a shelter for people experiencing homelessness. I accept that such circumstances make it difficult for the Applicant to obtain the documents requested by the Respondent.

47Accordingly, I find that the Respondent incorrectly suspended benefits during this period and the Applicant is entitled to IRBs at the rate of $153.71 per week, for the period from December 5, 2024 to January 8, 2025.

The Applicant complied with, or made reasonable efforts to produce the information requested in the letter, dated January 14, 2025

48On January 14, 2025, the Respondent requested that the Applicant provide the following within two weeks:

i. Clinical notes and records (“CNRs”) of Niagara Falls Health Centre, for the period from June 11, 2024 to-date;

ii. Updated OHIP summary for the period from February 5, 2024, to-date;

iii. CNRs of Active Life Rehab for the period from December 10, 2023 to-date;

iv. CNRs of Niagara Health & Rehab Centre, for the period from December 10, 2023, to-date;

v. CNRs from Hydroactive Therapy for the period from December 10, 2023, to-date;

vi. CNRs from Mississauga Hospital, for the period from February 14, 2024, to-date;

vii. CNRs from all treatment providers seen for the period from December 10, 2023, to November 20, 2024;

viii. CNRs of all medical doctors consulted in relation to the subject accident for the period from December 10, 2023, to-date;

ix. Prescription summaries for the period from three years prior to the accident, to-date;

x. Confirmation of the “other income” noted in the Applicant’s 2022 income tax return;

xi. Bank records for the period from December 10, 2023 to-date to address any income from self-employment;

xii. Confirmation in writing as to whether the Applicant has access to any collateral medical or income continuant benefits; and

xiii. Confirmation in writing of all post-accident employment, self-employment, and/or income.

49The Respondent reiterated its thirteen-item request on February 28, 2025 and advised that the Applicant’s benefits would stop, effect March 3, 2025, for failing to provide the requested information.

50I find that the Applicant produced the documents she has obtained from third parties and has made best efforts to obtain the remaining documents, also from third parties.

51The Applicant provided the Respondent with the following on February 28, 2015:

i. Confirmation from Trillium Health (Mississauga Hospital) that there are no CNRs; and

ii. Prescription summary for Shopper’s Drug Mart.

52The Applicant provided the Respondent with the following on March 3, 2025:

i. CNRs from Niagara Falls Community Health;

ii. CNRs from Hydro Health;

iii. CNRs from Niagara Life Rehab;

iv. CNRs from Active Life Rehab;

v. CNRs from D. Taylor;

vi. OHIP Summary for the period from February 5 2024, to January 13, 2025;

vii. Written confirmation that the Applicant does not have any collateral medical or income continuation benefits;

viii. Written confirmation that the Applicant is not employed; and

ix. A request for CNRs from Niagara Health and Wellness.

53I find that the Applicant has a reasonable explanation for any delay in producing the requested records. Recall that section 33(8)(b) provides that insurers shall pay all amounts that were withheld during a section 33 suspension if the Applicant provides a reasonable explanation for the delay in complying with the subsection. Here, most of the documents were in the possession of third parties and required the Applicant to request and sometimes pay for the records, prior to receiving and producing them to the Respondent. The evidence demonstrates that the Applicant either produced the records or made requests to the correct third party.

54I find that the Applicant has a reasonable explanation for the delayed production of her bank records and that the Respondent had sufficient information to calculate her IRBs payable and initiate payments. One issue raised by the Respondent is with respect to the Applicant’s bank records. It submits that she failed to produce the records for a period of time and, when she produced them, they were incomplete and inadequate because it is unknown if some of the deposits are from an income source related to self-employment. To me, the bank records are unnecessary to confirm the Applicant’s pre-accident income because she had previously provided OCF-2s, completed by third parties to substantiate her employment income. Moreover, the Applicant has never purported to have returned to work following the accident, distinguishing her case from Staszewski v. Intact Insurance Company, 2020 CanLII 80323 (ON LAT) (“Staszewski”), submitted by the Respondent. In Staszewski the insured reported to some assessors that he returned to work following the accident. Here, the Applicant has continuously maintained that she has not worked since the accident.

55I find that section 52 of the Schedule encourages the Respondent to issue payment of IRBs as soon as possible, because it permits it to seek a repayment if the IRBs paid to the Applicant were incorrect. To me, section 52 of the Schedule makes it clear that insurers are to pay specified benefits as soon as there is enough information to calculate the benefit and then correct any overpayments thereafter. The Applicant’s case is the exact type of scenario contemplated for section 52 of the Schedule in which an injured person is entitled to and requires IRBs because she is facing homelessness. If the good-faith calculation results in an overpayment, the Respondent has the legal authority to request a repayment of those amounts. Here, the Respondent failed to adjust the Applicant’s claim in good faith and calculate her IRBs according to the information received. The Respondent then compounded the issue by requesting many additional documents at a time when the Applicant was experiencing precarious housing and limited access to funds to procure the documents.

56Accordingly, I find that the Applicant provided the information reasonably required to assist the Respondent in determining her entitlement to IRBs. Further, I find that the Respondent’s ongoing suspension of the Applicant’s IRBs to be unreasonable in light of the information provided to-date.

Interest

57Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found that the Applicant is entitled to overdue IRBs, it follows that she is also entitled to interest, pursuant to section 51 of the Schedule.

Award

58The Applicant sought an award of 50% of the amounts withheld pursuant to section 10 of Regulation 664. Under section 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.

59The Applicant claims entitlement to an award on the basis that the Respondent failed to properly adjust her file and breached its duty of good faith, and that the breach is severe because it caused her to experience homelessness.

60The Respondent submits that it is not held to a standard of perfection and is required to make its decisions based on the information available at that time. It submits that it required specific documents to calculate the Applicant’s IRBs and made multiple requests for the information. It submits that it issued payment once the information was provided and that the second stoppage occurred when the Applicant failed to provide additional information to calculate a possible deduction in benefits payable.

61I find an award is payable because the Respondent delayed payment of the Applicant’s IRBs. This occurred when the Respondent continued to request OCF-2s from the Applicant, despite them being provided on April 8 and July 24, 2024. As noted earlier, the Respondent had sufficient information to calculate the Applicant’s IRBs at the time her second OCF-2 was submitted. The Respondent continued to act unreasonably when it suspended the Applicant’s IRBs payable during the two occasions. This is because the Respondent maintained the suspension of benefits after the Applicant produced the documents and information requested or otherwise provided best efforts to produce the information. All this occurred when the Applicant was experiencing homelessness due to a lack of income caused by her inability to work due to accident-related injuries.

62I find that an award of 30% of the amounts withheld is appropriate in the circumstances. I find that the Respondent’s request for additional information is partly excused, in the circumstances, because the Applicant’s self-employment was unclear during the adjusting of her claim. Indeed, the Respondent had enough information to initiate payment of IRBs within a few months of the claim and should have issued payment once it received the OCF-2s from the Applicant, which were completed by her employers. However, the Applicant’s reference to self-employment, and the fact that her counsel maintained that she was both employed and self-employed at the time of the accident, caused the Respondent to seek additional information in the form of bank statements. While the request for additional information had some basis given that the Applicant reported that she was self-employed in addition to her employment, it was nevertheless unnecessary to make a good faith IRB calculation, and unnecessary considering the absence of any evidence indicating that the Applicant earned income from self-employment during her period of claim.

63Accordingly, I find that the Applicant is entitled to an award of 30% of the amounts of IRB withheld, plus applicable interest.

Costs

64I find no costs are payable.

65The Applicant sought costs in the amount of $1,000.00 pursuant to rule 19 of the Licence Appeal Tribunal Rules, 2023. She submits that it is reasonable and necessary to compensate her for the wasted time preparing submissions and to make a public statement that an insurer cannot suspend the payment of benefits for non-compliance with the insurer failed to properly adjust the file in a timely manner. The Respondent did not address the Applicant’s submissions for costs.

66The Applicant made a second request for costs in reply. She submits that the Respondent’s submissions include margins that are non-existent instead of the 1.5-inch margin provided by the case conference report and order.

67Pursuant to rule 19 of the Licence Appeal Tribunal Rules, costs may be requested where one party in a proceeding believes that another party in the proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.

68Here, there is no evidence indicating that the Respondent’s actions require an award for costs. The Applicant’s submissions focus on the Respondent’s behaviour outside of the Tribunal’s dispute resolution process. To me, the Applicant’s complaints fall within the scope of an award pursuant to section 10 of Regulation 664, which I have addressed. Additionally, there is no evidence to suggest that the small margins on the Respondent’s written submissions interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, or that the behaviour caused prejudice to the Applicant.

69Accordingly, no costs are payable.

CONCLUSION AND ORDER

70The Applicant is entitled to IRBs in the amount of $153.71 per week for the period from December 5, 2024, to January 8, 2025.

71The Applicant is entitled to IRBs in the amount of $153.71 per week, for the period from March 3, 2025, to-date and ongoing.

72Interest is payable pursuant to section 51 of the Schedule.

73The Applicant is entitled to an award of 30% of the amount of IRBs withheld for both periods, plus applicable interest.