In the recent decision of Kashefi and TD Home &
Auto, the Applicant's claims for non-earner and attendant
care benefits were dismissed as Arbitrator Mongeon found that no
valid application for non-earner benefits or attendant care
benefits was ever made prior to submitting an Application for
This case concerned an accident which took place on December 2,
2010. The Application for Arbitration was submitted on
November 14, 2013. In the response to the Application for
Arbitration, the Insurer raised the applicability of Section 55 of
the Statutory Accident Benefits Schedule relating to the
Applicant's claims for non-earner and attendant care
Section 55(1) of the Schedule provides that:
An insured person shall not commence a mediation proceeding
under section 280 of the Act if any of the following
The insured person has not notified
the insurer of the circumstances giving rise to a claim for a
benefit or has not submitted an application for the benefit within
the times prescribed by this Regulation.
The Insurer alleged that although two Disability Certificates
(OCF-3s) were filed prior to the Application for Arbitration,
neither indicated that the Applicant qualified for the non-earner
benefit. Specifically, the first Disability Certificate, dated May
6, 2011 and the second Disability Certificate, dated March 14,
2012, both indicated that the Applicant did not qualify for the
It was not until July 2, 2015 (after the first Pre-Hearing) that
a Disability Certificate was finally provided which suggested
entitlement to non-earner benefits.
Additionally, the Insurer alleged that no Form 1 –
Assessment of Attendant Care Needs - was ever submitted to the
Insurer relating to the accident.
Given same, the Insurer's position was that there had been
no application for the benefits sought, therefore, there could be
no Mediation and, in turn, no Arbitration of the issues. As noted
above, Section 55 of the Schedule makes it clear that no
Mediation can take place until an application for a benefit is
The Arbitrator agreed with the Insurer's position and the
claims for attendant care and non-earner benefits were
With respect to non-earner benefits, the Arbitrator reviewed the
two Disability Certificates submitted before the Application for
Arbitration was made. The Arbitrator noted that each
Disability Certificate answered the questions in Part 6 relating to
a complete inability to carry on a normal life (the test for
non-earner benefits) in the negative. The Arbitrator
noted that if these questions were answered by the Applicant's
own health professionals in the negative, it was difficult to
understand how the Applicant would think that she was entitled to
Neither of the two OCF-3 forms suggest an entitlement to
non-earner benefits; how can it be said that a claim for such
benefits has even been made by the Applicant? If no such claim has
ever been made, how can there be a Mediation or, subsequently, an
I noted above that there was a late-filed OCF-3 (July 2, 2015).
This form did indicate the Applicant suffered a complete inability
to carry on a normal life as of June 26, 2015. But as the Insurer
has suggested in its factum (at paragraph 75), even if this
were so, the Applicant would not be able to show that her
disability has been continuous from the time of the accident, as
required by Section 3(7) (a) of the Schedule—the
Applicant's first two OCF-3s would be evidence to disprove the
continuous nature of a disability.
Furthermore, with respect to attendant care benefits, the
Arbitrator noted that Section 19(2) of the Schedule makes
it clear that to make such a claim, a Form 1 – Assessment of
Attendant Care Needs, is required. After all, without a Form 1,
there is no way of determining what the correct quantum of the
benefit should be. No Form 1 had ever been filed in this case and
therefore, it was held that no valid application for an attendant
care benefit had ever been made.
Insurers should be careful in stringently following this
decision going forward, as it appears to muddy the distinction
between what is a technical breach (section 55) with
consideration of entitlement to a benefit on the merits.
Under B.C.'s former and current Limitation Act, the limitation period for a Plaintiff's claim can be extended on the basis of a Defendant having acknowledged in writing some liability for the cause of action.
Automobile drivers, like fine wine, tend to get better with age. Older drivers can draw on a wealth of experience from their years on the road to assist them when faced by a variety of dangerous conditions.
The insurance industry will be interested in Ledcor Construction Ltd v. Northbridge Indemnity Insurance Co because of principles the Supreme Court of Canada applied to the "faulty workmanship" exclusion in a Builders' Risk policy.
For the first time in BC, a Court has decided that an insured is entitled to special costs, rather than the lower tariff costs, solely because they were successful in a coverage action against their insurer.
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