Canada: A Valid Application Is Required To Claim Entitlement To A Benefit

Last Updated: April 18 2016
Article by Leanne A. Zawadzki

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 Arbitration.1

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 benefits. 

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 circumstances exist:

  1. 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 benefit.

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 made.

The Arbitrator agreed with the Insurer's position and the claims for attendant care and non-earner benefits were dismissed.

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 non-earner benefits:

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 Arbitration?

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.


[1] FSCO A13-014277 (March 18, 2016).

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Leanne A. Zawadzki
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