In Alkhatlan v. Aviva Insurance Company of Canada, 2024 ONLAT 23-010231/AABS-PI, the applicant was involved in an accident on January 31, 2023 and sought payment of accident benefits from her insurer pursuant to the Statutory Accident Benefits Schedule (“SABS”).

On November 7, 2023 the applicant submitted an OCF-6 to her insurer seeking reimbursement for $455,530.06 in medical costs.  By letter dated November 9, 2023, the insurer approved payment of the remaining $48,607.24 non-catastrophic policy limits for medical and rehabilitation benefits. The balance ($407,022.82) was denied on the basis that she was not catastrophically impaired, and she had exhausted the non-catastrophic policy limits to which she is entitled.

A preliminary issue hearing was heard on the issue of whether the applicant is barred from appealing the denial of the balance of the OCF-6 in this application because she had reached the limit of non-catastrophic injury category of payment, and no catastrophic injury application (OCF-19) was filed.

Adjudicator Grieves agreed with the insurer and found that the applicant was barred from proceeding with the appeal of denied benefits.  

The Tribunal followed its decision in Tlapale v. Wawanesa Insurance2023 CanLII 72625 (ON LAT), relied on by the respondent in its submissions. In Tlapale, Adjudicator Bonnie Oakes Charron concluded that the applicant was not entitled to disputed treatment plans because she had consumed the funds available to her within the policy limits and had not been deemed catastrophically impaired. Adjudicator Charron noted that the fact that “the applicant’s policy limit had been reached prefaces any other consideration in this matter”.

In the case at hand, the applicant had consumed the funds available to her within the non-catastrophic policy limits for accident benefits, and she could not apply for a catastrophic determination until two years post-accident pursuant to s. 3(1) of the SABS. She was not subject to the Minor Injury Guideline (“MIG”), and she had not been determined to be catastrophically impaired. Accordingly, a hearing was not necessary to make any findings about her entitlement to the disputed benefits, nor interest. Adjudicator Grieves noted that if the applicant’s approach were to be followed, an absurdity could result whereby applicants confined to the MIG who do not dispute the applicability of the MIG, could bring applications regarding entitlement to hypothetical post-MIG benefits. However, the adjudicator did permit the applicant to proceed with a standalone claim for an award under O. Reg. 644.

This decision from the LAT reaffirms that applicants cannot bring premature applications for entitlement to catastrophic benefits that are not (yet) available to them if they have not yet submitted an OCF-19 and other documentation supporting an application for a catastrophic determination. Before the Tribunal can find that an applicant is entitled to the disputed benefits above non-catastrophic policy limits, the applicant must be deemed or determined to be catastrophically impaired because of an accident.

Juny Kim is the author of this blog and a lawyer at the firm. The decision was argued by partner, Sonya Katrycz. If you have a question about this decision or a similar file, please contact Juny at 416-777-2811 ex 5304.