In accident benefits claims, insurers routinely request documentation to assess entitlement to accident benefits pursuant to section 33 of the Statutory Accident Benefits Schedule. In fact, section 33 is the only tool with which an insurer can request documentation or information from a claimant.

Where an insured does not comply with these requests, an insurer may be able to deny payment of benefits until there is compliance, pursuant to Section 33(6) of the Schedule. This is often a toothless denial, however, where claimants are usually forgiven for this non-compliance if they are able to provide a “reasonable” explanation. The range of “reasonable” can be stretched to be quite forgiving, in the name of consumer protection. However, Adjudicator Christopher Ferguson of the LAT has said, effectively, ‘ enough is enough’ and provided guidance as to when non-compliance is so egregious that it cannot be saved by a “reasonable” explanation.

In IY v Pembridge (2019 ONLAT 18-00624/AABS, July 17, 2019), the claimant applied for accident benefits from Pembridge. Over the next year, on seven occasions, Pembridge requested records from the family doctor, hospital, any clinic or health professional and pharmacy as well as OHIP summary, any application and files for WSIB, other accident benefits claims, ODSP, CCAC, CPP disability, and a copy of his driver’s license. In each of these letters, Pembridge also advised that his claim for accident benefits was denied due to non-compliance with section 33. The applicant did not provide any documentation for more than a year until he provided an authorization for the family doctor records. Instead of providing the remaining outstanding documentation, IY chose to apply to the LAT to dispute NEBs, the MIG, and other benefits.

Adjudicator Ferguson found that, in order to be “reasonable”, an explanation must be provided promptly after the reason for inability to provide information is known. IY did not provide any explanation for failing to comply with the section 33 requests nor did he suggest that the requests were in any way unclear. In fact, IY was still non-compliant with many of these requests at the time of the decision.

Both parties requested costs. Adjudicator Ferguson dismissed the applicant’s requests where he found no basis for IY’s cost claim. Pembridge was awarded $250 because IY’s conduct was unreasonable and “his submissions so strained credibility and credulity that they did not support any contention that they were reasonable, good faith contentions.” The proceeding was believed to have “wastefully consumed the Tribunal and Pembridge’s time and resources and such appeals should be discouraged.”

This decision can provide some guidance to insurers with respect to how to approach a non-compliant claimant in order to invoke real consequences for their non-compliance. Similarly, Adjudicator Ferguson’s words should be taken as a warning to those claimants who ignore their disclosure obligations and dare to come to the LAT, and create after the fact excuses for ignoring earlier section 33 requests.

Maia Abbas was the lawyer on this decision and member of the Licence Appeal Tribunal practice group. If you have a question about this decision or a similar file please contact Maia at 416-777-5205.