Lloyd's Underwriters defeated a 27-year non-earner benefit claim even though it could not produce the applicant's original 1998 denial letter.
The applicant was nine years old when she was hurt in a car accident on March 2, 1998, and was automatically deemed catastrophically impaired after losing consciousness at the scene. Her Glasgow Coma Scale score was 3 out of 15 at the scene and 6 out of 15 on arrival at hospital, both below the threshold of 9 used for a catastrophic impairment designation.
A developmental pediatrician completed an OCF-3 on her behalf on March 25, 1998, which was submitted to Lloyd's Underwriters on April 16, 1998. The applicant turned 16, the age at which non-earner benefits become payable under the Statutory Accident Benefits Schedule, on June 18, 2004.
She sought a non-earner benefit of $185 per week from June 18, 2004, to June 18, 2006, and $320 per week from June 19, 2006, to April 24, 2024. She also sought funding for a $2,200 psychological assessment and an award under section 10 of Regulation 664 for unreasonably withheld or delayed payments.
Under the Heath test for non-earner benefit entitlement, the tribunal found the applicant had not shown a complete inability to carry on a normal life. Evidence showed she continued competitive figure skating after the accident, winning a bronze medal, and submitted invoices for skating lessons and equipment in 1999. She later completed a four-year program at a culinary institute in Prince Edward Island with an academic average in the 80th percentile, was employed in her family's business, and married and had children.
Lloyd's Underwriters could not locate the applicant's 1998 denial letter. It told the tribunal the file had passed through four or more insurance companies over 27 years and that many paper records were lost. The insurer instead relied on an April 1999 compliance audit by the Financial Services Commission of Ontario, which found it had provided required benefit information and explanations at the time, even though the sections specific to the non-earner benefit were marked not applicable. The tribunal accepted the audit record as evidence the insurer met its notification obligations despite the missing letter.
Claims log notes spanning more than a decade showed the applicant and her family repeatedly instructed the insurer not to contact them. One 2009 entry read: "We are not to contact the insured person and or her parents." The file went years at a time with no activity, and the applicant did not submit an updated OCF-3 when she turned 16. The tribunal found no evidence she or her representatives raised the non-earner benefit issue until 2017, when a case manager first inquired about it.
The tribunal also denied funding for the psychological assessment. It found the applicant had not shown the assessment was reasonable and necessary. It pointed to her own testimony that she was too busy with family responsibilities to pursue therapy, along with a section 44 assessor's opinion that she could lead a normal life. The tribunal found the insurer's conduct did not amount to unreasonable delay, declined to order a special award, and ruled interest was not payable.
The decision was released August 27, 2026.
