Volume. 9 Issue. 22 – July 9, 2025
OCF10 Election Not Required Given IRB Eligibility
This week the Tribunal considers whether the Respondent was obliged to provide the Applicant with an OCF10 Election form when the OCF3 supported eligibility for both IRB and NEB.
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Election Not Required – The Applicant Vahed, injured in an April 2018 MVA, submitted an application to Co-operators that confirmed he had been employed at the time of the accident and that his accident-related injuries prevented him from returning to work. Subsequently the Disability Certificate (“OCF-3”) confirmed that he was working at the time of the accident, he suffered a substantial inability to perform the essential tasks of his employment and that he could not return to work on modified duties. The OCF-3 also stated that Vahed suffered a complete inability to carry on a normal life. At issue, in 24-011398 v Co-operators, was whether Vahed was barred from proceeding to a hearing for a non-earner benefit (NEB) of $185.00 per week from May 10, 2018 to ongoing, having failed to dispute the NEB denial within the two-year limitation period?
By way of a letter dated May 11, 2018, Co-operators confirmed that it had determined that Vahed was eligible for an income replacement benefit (“IRB”) and requested an OCF-2 in order to calculate the amount of the benefit. The letter also stated that the applicant was not entitled to a non-earner benefit (“NEB”), since he was eligible for an IRB. Following a series of s. 44 assessments, Co-operators sent a letter dated January 10, 2019, stating that its assessors had determined that he did not suffer a substantial inability to complete the essential tasks of his employment and denied the IRB claim. On September 12, 2024, Vahed filed his application with the Tribunal disputing the NEB denial, interest and an award.
It was the position of Co-operators that it provided a clear and unequivocal denial of the applicant’s NEB claim on May 11, 2018 and that Vahed did not dispute the denial until September 12, 2024, almost four years after the expiration of the two-year limitation period set out in s. 56 of the Schedule. Co-operators relied upon a number of Tribunal decisions confirming that denying an NEB claim on the basis that a claimant is entitled to IRBs, is a valid denial and compliant with s. 36(4)(b) of the Schedule. It further argues that an OCF-10 election of benefits form was not required in the present circumstances, since Vahed submitted an application indicating that he was entitled to IRBs and had been found to be entitled to IRBs by Co-operators.
In contrast, it was the position of Vahed that the s. 56 limitation period was not triggered, since the denial letters did not comply with the procedural requirements of s. 32(2)(d), s. 35 and s. 36 of the Schedule. He contended that as the OCF-3 established that he was qualified for both IRBs and NEBs, Co-operators was required to offer him an OCF-10 form to allow him to elect which benefit he wished to receive. Further, given the failure to comply with s. 35(1), Co – operators NEB denial was not clear and unequivocal, and the limitation period in s. 56 did not start to run.
The Tribunal found that the denial of the NEB claim was valid and triggered the s. 56 two year limitation period, as a clear reason for the denial was given, being that Vahed was not entitled to NEBs, because he was entitled to IRBs instead. The letter provided information on the right to dispute the denial, including the two-year limitation period, and provided information on the dispute resolution process. The Tribunal was not persuaded by the argument that the denial was non-compliant with 32(2)(d), s. 35 and s. 36 of the Schedule, as no OCF-10 had been provided by Co-operators. The Tribunal referenced earlier Tribunal decisions, all standing for the proposition that a denial stating that a claimant is not entitled to NEBs because they were eligible for IRBs, is a valid denial. There had been no case law cited by Vahed in support of his position that an OCF-10 was required in the circumstances.
Finally, the Tribunal noted even were it to accept the argument that an OCF-10 election was required in this case, the Court of Appeal in Sietzema v. Economical Mutual confirmed that that a clear and unequivocal denial is sufficient to trigger a limitation period, even if legally incorrect reasons were provided. Therefore, the May 11, 2018 denial letter triggered the two year limitation period.
The Tribunal then went on to consider whether the matter warranted exercising the statutory discretion to extend the two year limitation period, pursuant to s. 7 of the LAT Act. Vahed submitted that the doctrine of discoverability as set out in Tomec v. Economical Mutual was applicable. He argued that given Co-operators’ non-compliance with s. 35 and s. 36, he was not aware that the limitation period had been triggered. An extension pursuant to s. 7 was found not to be warranted, as the only arguments raised related to Co-operators’ purported non compliance that was not accepted by the Tribunal, and the doctrine of discoverability set out in Tomec is not applicable.
Concluding, “In terms of the four factors set out in Manuel v. Registrar to determine if the justice of the case requires the extension, the applicant has not led evidence of a bona fide intention to appeal within the limitation period, or the merits of his NEB claim. The delay in the present matter is substantial, being almost four years after the expiration of the s. 56 limitation period. With respect to prejudice to the other party, I agree with the respondent that permitting such a late claim would cause it prejudice, as the respondent was prevented from making enquiries in respect to the applicant’s medical condition or from further assessing the applicant.”
Accordingly, Vahed was barred pursuant to s. 56 of the Schedule from proceeding with his application, and there was no basis for the Tribunal to exercise its discretion to extend the limitation period. Therefore, the application was dismissed and the substantive hearing vacated.
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