In Lubin v. Allstate Insurance Company of Canada, 2023 CanLII 116488 (ON LAT), Adjudicator Ulana Pahuta addressed the issue of when an Election of Benefits form (“OCF-10”) is required to be submitted by an applicant pursuant to s.35(1) of the Schedule.

The applicant was involved in a motor vehicle accident on December 16, 2022. She applied to the LAT disputing her alleged entitlement to income replacement benefits (“IRBs”), and she also claimed a special award due to the insurer’s allegedly unjustified request for an OCF-10  among other things.

Allstate raised a preliminary issue, taking the position that the applicant should be barred from proceeding with her claim for IRBs, interest and an award, due to her failure to submit an OCF-10.

The applicant had submitted an Employer’s Confirmation of Income (“OCF-2”) which confirmed that she had been employed at the time of the accident. Despite this, she had also submitted an Application for Accident Benefits (“OCF-1”) and a Disability Certificate (“OCF-3”) which indicated that she met the tests to be eligible for both NEBs and IRBs. As such, Allstate delivered notice to the applicant requesting that she complete and submit an OCF-10 within 30 days, pursuant to s. 35 of the Schedule.

In her submissions, the applicant argued that she was not required to submit an OCF-10 as section 35(1) of the Schedule had not been engaged.  She argued that it was clear from the documents provided to Allstate (OCF-1, OCF-2 and OCF-3) that she did not qualify for a non-earner benefit (“NEB”) as she was working at the time of the accident. Accordingly, the applicant argued that there was no ambiguity as to which specified benefit she qualified for.

Allstate submitted that an OCF-10 was requested because there was ambiguity in the applicant’s OCF-1 and OCF-3, where the applicant had indicated that she met the tests for both NEBs and IRBs.

Ultimately, Adjudicator Pahuta agreed with Allstate that the applicant was required to submit an OCF-10, and given her refusal to do so, she was barred from proceeding with her claim for IRBs on the basis that the language of section 35(1), which requires an applicant to elect a benefit within 30 days of receiving notice from the insurer, is “mandatory and unambiguous”. A failure on the part of an insured to complete this step renders the application incomplete. Adjudicator Pahuta therefore disagreed with the applicant that there was no ambiguity in her application, and disagreed that her OCF-1, OCF-2 and OCF-3 cumulatively unequivocally indicated to the insurer that she only would qualify for payment of an IRB, not NEBs.

Adjudicator Pahuta noted (and the Tribunal has previously accepted) that an insurer is within its rights to make a determination of eligibility for a specified benefit without requiring an OCF-10, even where an OCF-3 may indicate that both tests are met. However, where the insurer has decided that there is sufficient ambiguity to warrant a request for an OCF-10, the insured must comply with same.

The big takeaway from this decision is that providing employment details in an OCF-1, and even completing an OCF-2 confirming employment , does not automatically eliminate ambiguity. Where the OCF-3 specifies that both specified benefits tests are met, the insurer may request an election, and compliance with such a request then becomes mandatory for insured to return the OCF-10 with their election to receive either IRB, NEB, or caregiver benefits.

Lauren Kolarek is the author of this blog and the lawyer on this file. If you have a question about this decision or a similar file, please contact Lauren at 416-777-5244.