In Tyulyakov v Allstate Insurance Company of Canada, Licence Appeal Tribunal Adjudicator Stephanie Kepman found that the Applicant was barred from proceeding with his application for an income replacement benefit because he failed to notify the respondent of the circumstances giving rise to the claim for said benefit pursuant to section 55(1) of the Statutory Accident Benefits Schedule (the “Schedule”).

The Applicant was involved in an automobile accident on August 7, 2017, and sought benefits pursuant to the Schedule (“August accident”). It is important to note that the Applicant had also been in a previous accident just two weeks earlier, on July 24, 2017 (“July accident”). The Applicant submitted an Application for Accident Benefits (“OCF-1”) to the respondent on approximately September 11, 2017, for the July accident. The Applicant reported being employed as a truck driver and indicated that his accident-related injuries prevented him from working from August 5, 2017, and ongoing. 

On September 8, 2017, the applicant provided the respondent with a disability certificate (“OCF-3”). The OCF-3 contained the claim number for the July accident. Consequently, the applicant received an Explanation of Benefits (“EOB”) dated September 27, 2017, where the insurer confirmed receipt of the applicant’s September 8, 2017 OCF-3. The applicant withdrew his September 8, 2017, OCF-3, on September 28, 2017, because it contained the claim number for the applicant’s July accident but listed the date for the Applicant’s August accident. He did not submit another OCF-3.

The Applicant submitted an Application to the LAT disputing entitlement to income replacement benefits. The Respondent argued that the applicant cannot proceed with his application since he has yet to file an OCF-3 in relation to the subject (August) accident. Section 55(1)1 of the Schedule states that an insured person shall not apply to the Tribunal under subsection 280(2) of the Insurance Act if the insured person has not notified the insurer of the circumstances giving rise to a claim for a benefit or has not applied for the benefit within the times prescribed by the Schedule.

The Applicant submitted an OCF-1 on January 31, 2018, for the August accident with a cover letter that stated “To follow is Disability Certificate (OCf-3).” However, no follow-up OCF-3 was provided. 

The Applicant argued that his OCF-3 was initially submitted in relation to both accidents.

Adjudicator Kepman was not convinced. She noted,

[20]        The applicant submitted that his position is confirmed in the Affidavit of Alexander Makaronet[8], the applicant’s previous counsel, which stated:

“On September 28, 2017, our office responded back advising the Respondent that the Applicant is not claiming the Income Replacement Benefit for the accident of July 24, 2017 as he returned to work on July 29, 2017. As a result, Barapp Law withdrew the OCF-3 Disability Certificate dated September 8, 2017, specifically for the accident dated July 24, 2017.”

[21]        Mr. Makaronet stated that the OCF-3 in dispute was filed in relation to both accidents and that the applicant advised the respondent he would not be seeking an IRB in relation to his first accident.  

{58]        In terms of Mr. Makaronet’s affidavit, the respondent submitted it should be afforded little weight because it is not supported by evidence and contains mostly opinions, arguments, and speculation. The respondent submitted the affidavit offered little information, as Mr. Makaronet is not the author of the letter from September 28, 2017, and therefore, he has no information with respect to the intention of the author’s meaning, nor that of the author of the OCF-3. 

In this case, the Applicant is disputing income replacement benefit in the amount of $400.00 per week from the second accident of August 7, 2021. Adjudicator Kepman decided that the Applicant is barred from proceeding with his application for an IRB because he failed to comply with section 55(1) of the Schedule. Adjudicator Kepman came to this determination because she found that the OCF-3 was unclear as to which accident it related to because it contained information related to both of the applicant’s accidents/claims. Additionally, the Applicant did not clarify or amend his OCF-3 but instead chose to withdraw his ambiguous OCF-3. He also did not submit a subsequent OCF-3 with respect to the subject accident. Therefore, Adjudicator Kepman found that because the applicant has not submitted a completed OCF-3, he may not proceed with his application for an IRB for the subject accident. She stated,

“However, I disagreed with the applicant’s argument that the respondent failed to notify him that his OCF-3 for the subject accident was outstanding.  Instead, I found that the applicant did not submit an OCF-3 in relation to the subject accident. I found the applicant’s cover letter from January 31, 2018, which accompanied his OCF-1 for the subject accident. specifically addressed the fact that not only had the applicant not filed an OCF-3 in relation to the subject accident, but that said OCF-3 was to follow, and never did.” 

This decision indicates the importance of notifying the insurer of the circumstances giving rise to a claim for benefit, and to the extent that there is more than one accident giving rise to a claim, there needs to be clarity surrounding the submission of claims to ensure that if the intention is to claim separately for two different accidents, that this is done properly, referencing each accident separately in the claim forms. 

It further reinforces that the onus under section 36(2) is “squarely” on the Applicant to ensure that the required OCF-3 is properly submitted an completed before entitlement to a specified benefit will begin.

Aylina Dhanji is an articling student and author of this blog. If you have questions about this decision or a related file, please contact Aylina at [email protected] or Eric Grossman at 416.777.5222