Dharam Paul v. Allstate Insurance Company of Canada, 1999 ONFSCDRS 95

Neutral Citation: 1999 ONFSCDRS 95

FSCO A98-001025

BETWEEN:

DHARAM PAUL

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Deena Baltman

Heard:

March 29, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Mr. Paul appeared on his own behalf

Stuart Aird for Allstate Insurance Company of Canada

The issue in this case is whether the Applicant, Dharam Paul, has a "reasonable excuse" for failing to apply for accident benefits within the 90-day time limit set out in the Schedule.¹

Mr. Paul does not have a "reasonable excuse" for failing to apply for benefits within the 90-day time limit set out in the Schedule. Consequently, his claim for benefits is dismissed.

Background:

Mr. Paul was injured in a car accident on September 19, 1994. Two days later, he reported the accident to Allstate Insurance Company of Canada ("Allstate"). On September 28, 1994, Allstate mailed an application form and covering letter to Mr. Paul.

Section 59 of the Schedule provides that a person making a claim "shall" submit a completed application to the insurer within 90 days from the date he gave notice. As Mr. Paul notified Allstate on September 21, 1994, the 90-day period expired on December 21, 1994.

Mr. Paul admits that he received the application form from Allstate shortly after September 28, 1994, but failed to submit it until October 17, 1995, over nine months after the expiry of the time period. However, he seeks relief under section 59(4), which provides that a failure to comply with the 90-day filing period "does not disentitle a person to benefits if the person has a reasonable excuse."

Mr. Paul's "excuse" is that he was never made aware of the 90-day notice period until after he submitted his application. For the reasons set out below, I reject that argument.

Submissions and Findings:

Mr. Paul states that although Allstate mailed various documents to him on September 28, 1994, none of them indicated that he was obliged to submit an application within 90 days. He states that the package contained a covering letter and three forms entitled "Application for Accident Benefits," "Employer's Confirmation of Income," and "Health Practitioner's Certificate."

None of these forms refers to the 90-day filing period. However, Allstate contends that the application package also included an explanation form that clearly set out the 90-day time period. In support of its position, Allstate called evidence from Janice Simpson, the claims representative who had carriage of Mr. Paul's file from the outset.

Ms. Simpson candidly acknowledged that she had no specific memory of this file but was relying on the computer diary she maintained. I accept her evidence that this diary includes any relevant activity on the file, including details of telephone conversations. Following her initial telephone conversation with Mr. Paul, she mailed him an application "package." She testified that the package is a pre-printed, standard booklet that insurers routinely mailed to applicants. The booklet contains several forms held together by perforated edges, so that an applicant can separate and complete the forms individually. The first page in the booklet contains an explanation of the forms, with instructions on how to apply. It states:

About this Application for Accident Benefits

Use this package to apply for benefits if you were injured in an automobile accident...

The Application for Accident Benefits form must be returned within 90 days or you may lose your right to benefits. If you are unable to return it within 90 days, submit it to your insurance company anyway and explain why you were not able to complete it within 90 days. Return the original form to the insurance company and make a copy for your records. [emphasis in original]

Mr. Paul states that his booklet did not include this form. He acknowledges that all the forms he received were held together by perforated edges, and therefore surmises that Ms. Simpson, or someone else at Allstate, must have ripped the explanation page out of the booklet. Mr. Paul suggested that because Ms. Simpson could not recall the colour of the booklet, she was obviously unfamiliar with it, proving that she did little, if anything, to insure that applicants received complete booklets.

I find Mr. Paul's theory implausible, for several reasons. The evidence suggests that Allstate responded promptly and professionally to Mr. Paul. Along with the application package, Ms. Simpson sent a covering letter that urged him to "make sure the application and authorization forms are returned soon, so we can begin payments." She invited Mr. Paul to submit any medical bills that were not covered by any other medical plan. She concluded by encouraging him to call her if he needed any help filling out the forms.

Against this background, I find it unlikely that Ms. Simpson or anyone at Allstate attempted to thwart Mr. Paul's claim by removing the explanation form from the front of the booklet.

Allstate suggested that the true reason Mr. Paul neglected to apply in time was because he sustained minimal, if any, losses in this accident. Certain evidence supports this contention. After reporting the incident to his family doctor on September 21, 1994, Mr. Paul never mentioned it again until June 1995, even though he saw his doctor 28 times in the interim for other matters. In his initial phone call to Allstate he reported only a laceration on his chin and forehead, and advised that he had not been employed in the three years preceding the accident. He required no therapies or referrals for medical treatment. He never attempted to call Allstate nor did he submit any medical bills after he received the application package.

I reject Mr. Paul's suggestion that he failed to apply for benefits because he was unaware of the time period. I find it more likely that he simply neglected or declined to apply, despite being properly advised of the time period.

I therefore conclude that Mr. Paul has not demonstrated a reasonable excuse for failing to apply for accident benefits. Given the wording of section 59(4), it follows that he is disentitled to any benefits as a result of this accident, and may not proceed to arbitration.

May 28, 1999

Deena Baltman Arbitrator

Date