Martin v. Definity Insurance Company, 2026 CanLII 59502

Licence Appeal Tribunal

Citation: Martin v. Definity Insurance Company, 2026 ONLAT 25-001515/AABS Licence Appeal Tribunal File Number: 25-001515/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:

Rommelson Martin Applicant

and

Definity Insurance Company Respondent

DECISION

ADJUDICATOR: Nadia Mauro

APPEARANCES:

For the Applicant: Michael Ferrante, Paralegal

For the Respondent: Jonathan White, Counsel

HEARD: By way of written submissions

OVERVIEW

1Rommelson Martin, the applicant, was involved in an automobile accident on December 4, 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, Definity 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 an income replacement benefit (“IRB”) in the amount of $119.08 per week from December 11, 2022, to July 26, 2024?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

3The applicant confirmed in his submissions that he withdrew issue 2 as listed in the Case Conference Report and Order, dated May 22, 2025, (“CCRO”).

RESULT

4The respondent was non-compliant with s. 36(4) of the Schedule, therefore, IRBs are payable pursuant to s. 36(6) of the Schedule for the period of February 22, 2023 to January 26, 2024.

5The applicant has not established entitlement to an IRB from December 11, 2022 to February 21, 2023, and from January 27, 2024 to July 26, 2024.

ANALYSIS

Background

6At the time of the accident, the applicant was the driver of a ride sharing vehicle.

7The applicant initially submitted two Applications for Accident Benefits (“OCF-1”) – one to the insurer of his employer, the respondent (Definity), and one to the applicant’s personal insurer, Certas.

The respondent was non-compliant with s. 36(4) of the Schedule

8I find the applicant has established, on a balance of probabilities, that he is entitled to an IRB pursuant to s. 36 of the Schedule for the period of February 22, 2023 to January 26, 2024.

9Section 36 governs the application or claim for IRBs. Pursuant to s. 36, an application for IRBs is complete when the applicant provides an OCF-1 and a completed disability certificate (OCF-3) to the respondent.

10Section 36(3) states that an applicant who fails to submit an OCF-3 is not entitled to the IRB for a period before the OCF-3 is submitted.

11Section 36(4) of the Schedule states:

(4) 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).

12Section 36(6) states that if the insurer fails to comply with s. 36(4) within the applicable time period, the insurer shall pay for the IRB for the period starting on the day the insurer receives the application and OCF-3 and ending, if the insurer subsequently gives a notice described in s. 36(4)(b), the day the insurer gave the notice.

13It is the applicant’s position that the respondent did not respond to his OCF-3 that was submitted on December 29, 2022 in accordance with s. 36(4) of the Schedule, and as such, must pay the benefit as required under s. 36(6) of the Schedule. The applicant submits that the OCF-3 was submitted by Hands on Health via facsimile (fax) to Certas, the applicant’s personal insurer. The applicant submits that the respondent, Definity (the insurer of his employer) assumed priority of the claim “no later than April 24, 2023”. The applicant submits that the respondent, in its letter correspondence dated January 19, 2023, acknowledged receipt of the applicant’s OCF-1 but stated that no OCF-3 had been submitted. It is the applicant’s position that the respondent should have seen that the OCF-3 was faxed to Certas on December 29, 2022, given that it assumed priority of the claim after this date. The applicant further submits that he resubmitted the OCF-3 on January 24, 2024, however, he argues that the respondent’s letter reply on January 26, 2024 is also non-compliant with s. 36(4) of the Schedule.

14The respondent submits that on January 19, 2023, it acknowledged receipt of the applicant’s OCF-1 submitted on December 22, 2022, and advised the applicant that he had not completed and submitted an OCF-3 with the initial package. The respondent submits that it required same to assess the applicant’s entitlement to IRBs.

15The respondent further submits that on February 22, 2023, Certas issued a Notice of Priority Dispute. It argues that on page 4 of the Notice, it is indicated that Certas received an OCF-1 application on January 19, 2023, and the applicant’s employer had confirmed to Certas that there was an open claim with the respondent. It is the respondent’s position that the applicant breached the clear instructions on the OCF-1 to only submit the application to one insurer. Despite the applicant’s submissions, to the respondent it would appear that it got the first application and dealt with it from the outset. It is the respondent’s position that the subsequent application to Certas was of no ultimate consequence because the respondent accepted the claim before Certas received an OCF-1.

16I have reviewed the evidence tendered by both parties and I find that the respondent was non-compliant with s. 36(4) of the Schedule for the following reasons.

17First, the applicant has the onus to ensure that he has submitted a completed OCF-3. I agree with the applicant that the myfax confirmation supports the OCF-3 was submitted to Certas by Hands on Health via fax on December 29, 2022. I acknowledge that the OCF-3 is not attached to the myfax confirmation page, however, the transmission message states “Re: R. Martin OCF-3” and the destination fax number is a Certas fax number, as it is the same fax number on Certas correspondence evidence relied on by both parties. I therefore find that this supports, on a balance of probabilities, that the OCF-3 was submitted to Certas.

18While the evidence supports that the applicant initiated an accident benefits claim with both the respondent and Certas, it is not clear from the applicant’s submissions why the OCF-3 was only sent to Certas. In any event, the evidence supports the respondent received an OCF-1 on December 22, 2022. The evidence also supports that the applicant submitted an OCF-3 to Certas on December 29, 2022 and then submitted an OCF-1 to Certas on January 19, 2023.

19On February 22, 2023, Certas issued a Notice of Priority Dispute, indicating it had received an OCF-1 on January 19, 2023. Therefore, I find that the applicant complied with s. 36(2) of the Schedule, in that he submitted a completed OCF-3 to an insurer with which he initiated an application for accident benefits and who the respondent was aware of because of the Notice of Priority Dispute.

20Second, the applicant in his reply submissions submits that the adjuster, when accepting priority between insurers, should ensure they have received copies of all documents from the other insurer in the dispute. The applicant submits that a “prudent adjuster” would have inquired with Certas as to whether they had received a completed OCF-3. The respondent maintains that it continued to adjust the file from the outset despite the applicant also sending an OCF-1 to Certas. In my view, that means the respondent accepts that an OCF-1 was sent to Certas. The respondent has not pointed me to any authority that, as a result of a priority dispute, the applicant must resend documentation to the priority insurer.

21More to this point, while s. 36(2) of the Schedule states that the applicant shall submit a completed OCF-3, the Schedule does not stipulate that the OCF-3 must be submitted to every insurer when faced with a priority dispute. Priority disputes in Ontario are governed by s. 268 of the Insurance Act, R.S.O. 1990, c. I.8. (Act) and Ontario Regulation 283/95 (Regulation). The Regulation provides that the first insurer who receives an application for statutory accident benefits must pay “benefits to an insured person pending the resolution of any in dispute as to which insurer is required to pay benefits under s. 268 of the Act”.

22The statutory accident benefits scheme is designed to ensure insured persons receive statutorily mandated benefits promptly. Insured persons are not to be prejudiced by a priority dispute (see: Kingsway General Insurance Company v. Ontario, 2007 ONCA 62, 84 O.R. (3d) 507).

23I find that the respondent’s letter inquiring about the completion of an OCF-3 further supports that it should have taken steps to ascertain whether Certas had received a completed OCF-3. This is because after reviewing the applicant’s OCF-1, it acknowledged that the applicant may be entitled to IRBs.

24Next, I accept that the evidence supports the applicant initiated a claim with the respondent first, however, in my view, the respondent has an obligation to continue adjusting the claim. In this way, I disagree with the respondent that the subsequent application to Certas was of “no ultimate consequence”. In the present case, indeed it was. Given the nature of a ride sharing employer-employee relationship, I accept the applicant’s position that it did not know who to submit the application to at the outset – his personal insurer, Certas, or employer insurer, the respondent.

25As indicated above, the respondent was notified by Certas that it had received an application from the applicant on February 22, 2023. Despite this, the evidence and submission are devoid of explanation as to the subsequent steps the respondent took after being contacted by Certas. Therefore, it is not clear whether the respondent made requests or received any documents obtained by Certas.

26The consequence of this is that, although submitted in accordance with s. 36(2) of the Schedule, the applicant’s OCF-3 was not ‘received’ by the respondent – despite the respondent having the opportunity to make reasonable inquiries to Certas for same. To the respondent, this means that the applicant should be disentitled to IRBs for the period in which it was not ‘submitted’ pursuant to s. 36(3) of the Schedule. In my view, this would be contrary with the consumer protection mandate of the Schedule. The applicant met the requirement to submit the OCF-3. The respondent should have requested the accident benefits file from Certas. From my perspective, the respondent’s lack of submissions or evidence with respect to its response, if any, to Certas’ Notice of Priority Dispute is fatal to any assertion that the respondent did not ‘receive’ an OCF-3. This is because, contrarily, it supports an overt disregard for a potential application for a specified benefit.

27Lastly, I am unpersuaded by the respondent’s position that it made multiple requests to the applicant for the OCF-3. The evidence indicates that the respondent sent letter correspondence in response to the applicant’s application on January 19, 2023 that indicates the applicant was not entitled to an IRB because he did not submit an OCF-3, and invites him to submit an OCF-3 if he would like to apply for this benefit. The evidence also indicates that the respondent sent letter correspondence on September 26, 2023, after receipt of the IRB Report of Great Oak, dated August 16, 2023. The initial letter on January 19, 2023, was during the period in which the priority dispute existed and an OCF-3 had already been submitted to Certas. The next letter dated September 26, 2023, states, in part:

“We’re unable to pay this invoice. Further to our letter on 1/19/2023, it was our determination that you were not entitled to the Income Replacement Benefit as we have not received an OCF-3 Disability Certificate in relation to your claim. As there is no entitlement to the Income Replacement Benefit, this invoice is not payable”

28The letter also states that “No action is required on your part at this time”. Given that neither letter is a “request” for an OCF-3, I am unpersuaded that these two letters indicate that the applicant failed to submit the OCF-3 after the respondent made multiple attempts to obtain same, as asserted in its submissions.

29As such, I find that the respondent was non-compliant with s. 36(4) of the Schedule from February 22, 2023, when the priority dispute was initiated by Certas, until January 26, 2024, when the respondent sent letter correspondence to the applicant after receiving the OCF-3.

30I find that the respondent rectified its non-compliance with s. 36(4) of the Schedule following its letter correspondence dated January 26, 2024.

31The respondent, after confirming receipt of the OCF-3 on January 24, 2024, responded by way of letter correspondence on January 26, 2024, and requested more information pursuant to s. 33 of the Schedule, to be provided by February 16, 2024. In addition to medical records, the respondent requested a completed statutory declaration and the fax confirmation from Hands on Health to show that the OCF-3 was successfully faxed to its office on December 29, 2022. On February 22, 2024, the respondent sent letter correspondence to the applicant indicating that it had not received the requested documentation and determined that IRBs would be stopped as of March 1, 2024. It is not clear from the evidence and submissions whether any IRBs were paid to the applicant. In any event, I find the letter correspondence of the respondent dated January 26, 2024 is compliant with s. 36 of the Schedule, because it i) was sent to the applicant within 10 business days, pursuant to s. 36(4) of the Schedule, and ii) requested further information to determine eligibility to IRBs pursuant to s. 36(4)(c) of the Schedule.

32In light of the above, as I found that the respondent was non-compliant with s. 36(4) of the Schedule, by consequence of s. 36(6) it shall pay IRBs from February 22, 2023 to January 26, 2024.

33For the sake of completeness, the applicant has not tendered medical evidence nor made submissions with respect to a substantial inability to perform the essential tasks of his employment. The applicant has also not provided evidence or made submissions with respect to the essential tasks of his employment at the time of the accident. Therefore, I find that the applicant has not established entitlement to IRBs from December 11, 2022 to February 21, 2023, and from January 27, 2024 onwards.

Quantum of IRBs

34In his submissions, the applicant expands the scope of his claim for IRBs to $119.08 per week from January 2023 to June 2023; $163.20 per week for the month of July 2023; $177.01 per week for the month of August 2023; $189.67 per week for the month of September 2023; $156.80 for the month of October 2023; $165.50 for the month of November 2023; $159.75 for the month of December 2023; and $61.93 for the month of January 2024. The applicant relies on the IRB Accounting Report conducted by Great Oak, dated August 16, 2023.

35The Case Conference Report and Order, dated May 22, 2025 (“CCRO”), identified the amount of IRBs in dispute as being $119.08 per week. The onus rests with the applicant to prove the quantum. While the applicant relies on the IRB report of Great Oak, I find that Great Oak only calculated the quantum of IRBs up to July 31, 2023. I have not been pointed to any contradicting opinion from an accountant or other evidence that would negate the calculations made by Great Oak. Therefore, I accept that the applicant is entitled to IRBs in the amount of $119.08 from February 22, 2023 to July 31, 2023 because of the respondent’s non-compliance with s. 36(4) of the Schedule.

36However, I am not satisfied that the applicant has met his onus to establish IRBs thereafter in the amounts sought above. For the period between August 1, 2023 and January 26, 2024, the applicant relies on bank statements and Notice of Assessments (NOA) from 2021 to 2024 to establish his monthly IRB entitlement. It is not clear from the applicant’s submissions how he calculated the payments as indicated above. I also find that the bank statements and NOAs provided are not clear with respect to what deposits received were income related, or what post-accident income would be subject to a deduction under s. 7 of the Schedule.

37Nevertheless, as I have found the applicant is entitled to an IRB from February 22, 2023 to January 26, 2024 pursuant to s. 36(6) of the Schedule, rather than on the merits of s. 5(1) of the Schedule, I find that the applicant is restricted to the amount claimed within the CCRO.

38Given the foregoing, I find that the applicant has established on a balance of probabilities entitlement to an IRB for the period between February 22, 2023 and January 26, 2024 in the amount of $119.08 per week.

Interest

39The applicant is entitled to interest on any overdue benefits pursuant to s. 51 of the Schedule.

ORDER

40I find that:

i. The applicant is entitled to an IRB from February 22, 2023 to January 26, 2024, in the amount of $119.08 per week, plus interest pursuant to s. 51 of the Schedule; and

ii. The applicant has not established entitlement for IRBs from December 11, 2022 to February 21, 2023 and from January 27, 2024 to July 26, 2024.