In the Case of Boutros v Economical Insurance Company, 2023 CanLII 98418 (ON LAT), the applicant was involved in a motor vehicle accident on October 14, 2018, and applied to Economical for benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

A notable takeaway lies in Adjudicator Ulana Pahuta’s decision on the preliminary issue, that the applicant is statute-barred from proceeding with her claim for Non-Earner Benefits (“NEBs”). This decision is a reminder that being unaware of a benefit for a period of time is not a reasonable explanation for an insured’s delay in applying for the benefit.

Pursuant to sections 12(3)(a) and (c) of the Schedule, an insurer is not required to pay a NEB for any period more than 104 weeks after the accident. Furthermore, section 36(3) of the Schedule states that an insured person who fails to submit a completed OCF-3 is not entitled to a NEB for any period before the completed OCF-3 is submitted.

In this case, the applicant submitted an OCF-3 on December 23, 2020 – 114 weeks after the accident.

Adjudicator Pahuta agreed with Economical’s explanation for denying the applicant’s NEB’s, that since the OCF-3 was submitted after the 104 week period of entitlement to NEBs, pursuant to sections 12 and 36 of the Schedule, the applicant is barred from proceeding with her claim. The Adjudicator further agreed with the conclusions in Tribunal decision Valentine v. AIG, 2022 CanLII 75153 and Superior Court decision Volpe v. Co-operators Gen. Ins. Co. 2017 ONSC 261 (CanLII) that the language in section 36 is compulsory. Particularly,  that section 36 bars an insured person’s claim where the OCF-3 was submitted following the 104 week period of NEB eligibility provided by section 12 of the Schedule.

The applicant’s explanation for her late filing of the OCF-3 is that she was not aware of the NEB entitlement until advised by counsel, Economical did not inform her of the fact she could apply for this benefit, and that due to COVID, her doctor was not seeing patients or completing insurance forms.

Adjudicator Pahuta concluded that an applicant is deemed to know the applicable period for notifying an insurer of their intention to claim accident benefits and the fact the applicant was self-represented and unaware for a period of time is not a reasonable explanation. There was also no evidence that the applicant’s doctor would not complete insurance forms during COVID, or that Economical did not inform her of her right to apply for NEBs.

The Adjudicator found the applicant’s argument that she had an explanation for the delay to be irrelevant, as she failed to comply with the mandatory procedural requirements to make an NEB claim. As such, the applicant is statute-barred from proceeding with her NEB claim due to her failure to comply with section 36(2) and (3).

This decision is a strong reminder that section 36 of the Schedule does not provide any exception to the requirement that an insured person seeking NEBs must first submit a completed OCF-3, and that an insurer is not obligated to make any payment until the application is complete.

Adel Pippo is the author of this blog. If you have a question about the decision or a similar file, please contact Adel or Melinda Baxter who was the lawyer on the file.