A procedural misstep cost an insurer the right to challenge a benefits application that was filed eleven days after the claimant died.
In Sarkar v. Certas Direct Insurance Company, 2026 ONLAT 24-002551/AABS, released April 9, 2026, Ontario's Licence Appeal Tribunal delivered a pointed reminder to claims teams across the province: identify problems early, or risk losing the chance to raise them at all.
The case traces back to an April 25, 2019 automobile accident involving Hujefa Sarkar, who applied for statutory accident benefits from Certas Direct Insurance Company. At issue were a $1,753.00 psychological assessment and two dental claims totalling $53,259.00 submitted under s. 38(4) of the Schedule.
But it was the circumstances around the filing that drew attention.
Sarkar passed away on February 17, 2024, from causes unrelated to the accident. The application to the Tribunal was filed on February 28, 2024 - eleven days after his death and well before a litigation guardian was appointed on July 8, 2024. Certas argued in its written submissions that the application was an "irremediable nullity," filed at a time when no one had legal authority to act on behalf of the deceased.
It was a potentially decisive argument. But it came too late.
The parties had attended a Case Conference on June 19, 2024, where they agreed on the issues in dispute. The resulting Case Conference Report and Order, dated June 27, 2024, contained no mention of the application's validity as a preliminary issue. Certas did not move to add it afterward, did not file a motion, and did not notify the other side - even after receiving a copy of the death certificate on February 18, 2025, months before filing its submissions.
Adjudicator Kathleen Wells shut the door. Allowing the argument at that stage, she found, would be "highly prejudicial" to the applicant, who had no notice and no opportunity to prepare. She called it procedurally unfair and declined to hear it.
On the merits, Certas fared better. The Tribunal denied the psychological assessment, finding no contemporaneous evidence that the applicant's symptoms had worsened since a previous 2021 assessment. The two dental claims were also denied after the Tribunal found the insurer's November 16, 2023 denial letter compliant with the notice requirements under s. 38(8) of the Schedule. That letter cited the findings of Dr. Earl Madger's s. 44 report, stated the claims were "not reasonable and necessary, of a medical nature and essential for your treatment as a result of the subject accident," and informed the applicant of the right to dispute.
A request for an award for unreasonable withholding of benefits was similarly denied. The Tribunal found no evidence the insurer's conduct met the threshold of behaviour that is "excessive, imprudent, stubborn, inflexible, unyielding or immoderate." The application was dismissed in its entirety.
The lesson for the industry is straightforward. When a potential defect in an application surfaces - especially one as fundamental as the legal standing of a deceased claimant - it needs to be flagged through proper channels without delay. A case conference is the time. A motion is the mechanism. Written submissions, months later, are not.
