Citation: Taiwo v. Unifund Assurance Company, 2026 ONLAT 24-009742/AABS

Licence Appeal Tribunal File Number: 24-009742/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:

Adedoyin Taiwo

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR:

Amar Mohammed

APPEARANCES:

For the Applicant:

Tony Lafazanis, Counsel

For the Respondent:

Erica Lewin, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Adedoyin Taiwo, the applicant, was involved in an automobile accident on September 15, 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, Unifund Assurance 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 October 7, 2022, to date and 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?

3The applicant withdrew the following issue through submissions:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

RESULT

4The applicant is not entitled to a NEB or to interest. The respondent is not liable to pay an award. The application is dismissed.

ANALYSIS

The applicant is not entitled to a non-earner benefit

5I find that the applicant is not entitled to a non-earner benefit.

6Section 12(1) provides that an insurer shall pay a 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. Under s. 36(2), to apply for a NEB, the applicant must submit a completed disability certificate (“OCF-3”).

7The applicant does not make any substantive submissions regarding entitlement to a NEB under s. 12 of the Schedule. Rather, the applicant’s submissions allege that out of two OCF-3s, I should find the second OCF-3 null and void, which would entitle the applicant to a NEB. The applicant argues that the respondent did not provide a notice of denial that is compliant with the Schedule. The respondent’s position is that the applicant did not submit an application for a NEB.

8I understand that the following facts are not in dispute. There are two OCF-3s provided by the same health practitioner, Ronggang Shao, physiotherapist. The sole difference between the two OCF-3s is that Ronggang Shao has endorsed contradicting statements regarding whether the applicant suffers a complete inability to carry on a normal life. After receipt of the first OCF-3, which endorsed a complete inability to carry on a normal life but did not endorse a substantial inability to perform the essential tasks of her employment, the adjuster called the clinic to inquire about this contrasting endorsement. Ronggang Shao had a conversation with the adjuster and stated there had been an error in the first OCF-3 and an amended version would follow. The second OCF-3 delivered to the respondent states that the applicant does not suffer a complete inability to carry on a normal life.

9As noted earlier, the applicant makes no substantive submissions and does not refer me to any evidence to establish that she suffered a complete inability to carry on a normal life as a result of the accident. The parties dispute whether the adjuster reaching out directly to the clinic was proper. Further, the applicant challenges the credibility of the author of both OCF-3s. The applicant submits that the decision to amend the OCF-3 by the clinic is as a result of its preferred status with the insurer and as a result of financial benefits to its business for maintaining that position.

10The applicant also disputes whether entitlement to a NEB was ever properly denied. Whereas the respondent argues the applicant did not submit an application for a NEB. Since the applicant’s submissions refer to a denial notice that included a denial of a NEB, I have reviewed the dispute in the context of whether the applicant has met her onus to establish that the denial was not in accordance with the Schedule. In this context, I am focused on the applicant’s perspective and argument since it is her application that is before me.

11Section 36(4) of the Schedule states that within ten business days after an insurer receives an application and a completed OCF-3 for NEBs, 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 s. 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or

c) Send a request to the applicant under s. 33(1) or s. 33(2).

12In support of its argument that the first OCF-3 is valid and should be accepted, the applicant alleges it was improper for the respondent to reach out to the physiotherapist, because this is not an option the insurer has upon receiving an OCF-3 under s. 36(4) of the Schedule. The respondent refers me to s. 46.2(1) which states it may request from a provider any information required to assist it to determine its liability for a payment, which includes NEB payments. Further, the OCF-3 authorizes the provider to disclose to the insurer information reasonably required to determine the applicant’s eligibility for benefits.

13The first OCF-3 endorsed a complete inability to carry on a normal life while also endorsing that the applicant did not suffer a substantial inability to perform the essential tasks of her employment. In my view, it was reasonably required that the insurer clarify the first OCF-3 to determine the applicant’s eligibility for payment.

14Accordingly, the insurer made inquiries on October 7, 2022, the inquiries were answered by the author of the OCF-3 stating there had been an error and an amended OCF-3 would follow. Subsequently, after receipt of the second OCF-3 on the same day, the insurer provided a denial letter. Further, as to the applicant’s submission that there is bad faith dealing between the provider and the insurer to the detriment of the applicant, there is no evidence to support this speculative claim.

15I am alive to the fact that the respondent’s position is that the applicant did not apply for a NEB, which seems to contradict the applicant’s position that a denial letter was provided addressing the NEB.

16Both parties agree that a denial letter was sent on October 7, 2022, however I was not provided a copy of this letter in either of their evidence briefs. The applicant’s submissions state the letter refers to and denies both an IRB and NEB. In any case, without having a copy of the denial notice and without specific submissions as to the particulars of the deficiencies the applicant is alleging in the notice, the applicant has not met her onus in establishing the denial notice was not compliant with the Schedule.

17Further, as to the applicant’s submissions that the second OCF-3 should be declared null and void, I do not have any medical evidence to suggest that the first OCF-3 was correct and that the second OCF-3 is incorrect. As the respondent argues, nor is there any medical evidence suggesting the applicant did in fact suffer a complete inability to carry on a normal life. As of the date of submissions, the respondent confirms that only $792.68 out of the $3,500.00 MIG limit had been incurred. Based on the record before me, the author of the OCF-3 opines that the first one should be discarded and only the second, amended version, should be reviewed. As to the arguments made in support of entitlement to a NEB with respect to denial letters that are not before me, it is unnecessary to make a finding on the substantive entitlement to a NEB or the status of the OCF-3s.

18I find, for the reasons set out above, that the applicant is not entitled to an NEB due to a breach of the notice requirements in s. 36 of the Schedule.

Interest

19The applicant is not entitled to interest as it applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

Award

20The 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.

21The applicant alleges, quoted, as follows:

1. Vaughan Physio is a “preferred” treatment clinic. There are obvious significant financial benefits to its business for being in that position. It is important to maintain that.

2. section 36(4) of the SABS is very specific as to the options for the adjuster, upon receipt of an OCF-3 in support of a “specified benefit”. Calling the author and questioning their NEB answer is not one of the options

3. when calling the author, the adjuster makes no mention of the inconsistent answers relating to IRB on the OCF-3, and in their decision letter only refers to the answer that can possibly support a denial of IRB

4. in the October 7 denial letter there is no mention of the original OCF-3, and conversation that occurred with the author -why hide that? -transparency was required.

22Accordingly, considering my findings above, since there are no benefits on this application to which the applicant is entitled that were unreasonably withheld or delayed, no award is payable.

ORDER

23For the reasons above, I make the following orders:

i. The applicant is not entitled to a NEB or to interest.

ii. The respondent is not liable to pay an award.

iii. The application is dismissed.