Licence Appeal Tribunal File Number: 21-003861/AABS
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Leila Abdi
Applicant
and
Travelers Canada
Respondent
MOTION DECISION
ADJUDICATOR: Ian Maedel, Vice Chair
APPEARANCES:
For the Applicant: Mark Rybnik, Paralegal
For the Respondent: Tim McLean, Adjuster Deanna R. Miller, Counsel
Motion heard by Teleconference on: November 10, 2021
BACKGROUND
1The applicant was injured in an automobile accident on December 1, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (the “Schedule”).
2The applicant was denied certain benefits and on March 31, 2021 submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
3A case conference has been scheduled for January 28, 2022. The issues in dispute are whether the applicant’s injuries fall within the Minor Injury Guideline and treatment plans for chiropractic and psychological services.
MOTION
4On October 8, 2021, the respondent filed a Notice of Motion requesting that the Tribunal:
i. Issue an order dismissing the application in its entirety because the applicant failed to apply for accident benefits in the time period prescribed by s. 32(1) of the Schedule.
PARTIES’ POSITIONS
5The respondent submits that, while the date of loss was December 1, 2018, the applicant did not apply for benefits until more than a year later on December 5, 2019. The respondent submits the applicant has failed to comply with ss. 32(1) and 34 of the Schedule, because she failed to notify the insurer of her intention to apply for benefits within seven days, and then failed to provide a “reasonable explanation” for this failure. The respondent further submits the applicant is prohibited from applying to the Tribunal, pursuant to s. 55(1), as she has failed to notify the insurer of circumstances giving rise to the claim, nor has she submitted an application within the timeline prescribed by the Schedule. As a result of the applicant’s failure to provide timely notice, there is actual and presumptive prejudice to the respondent, and this application should be dismissed.
6The applicant submits she reported the accident to the police in December 2018, both over the phone and in person at a collision reporting center. The applicant reported it to a physician at a walk-in clinic, as well as to her insurance broker in April 2019. She then later reported back pain to her family physician in September 2019. The applicant submits the issue of delayed notice, pursuant to s. 32(1), was not raised by the respondent until twenty-two months after her initial Application for Accident Benefits (“OCF-1”) was filed. This was despite her attendance at an Examination Under Oath (“EUO”) in February 2020, and the adjustment of her claim by three separate adjusters—none of whom advised her the claim was statute-barred, pursuant to s. 32(1). The applicant was also a self-represented individual until December 2019, and so she was unfamiliar with the legal procedures surrounding her claim. The applicant further relies on s. 4 of the Limitations Act1, stating that it should take precedence over the applicable limitation period in s. 32 of the Schedule.
7In reply, the respondent submits the applicant has not provided a “reasonable explanation” for the delay. For instance, she made multiple visits to her family physician following the accident, yet never made any mention of it. Also, the initial walk-in clinic records have not been produced. The respondent further submits that thinking her accident-related injuries would improve is not a reasonable excuse, nor is her lack of knowledge of her duties as an insured person under the Schedule. The delay in reporting this accident has deprived the insurer of obtaining contemporaneous information regarding the applicant’s injuries, especially given she sustained injuries in a subsequent fall. Further, the respondent’s adjustment of her claim is not an acceptance of the applicant’s alleged injuries.
RESULT
Relevant Legislation
8The relevant sections of the Schedule are as follows:
9Section 32(1)
A person who intends to apply for one or more benefits described in this Regulation shall notify the insurer of his or her intention no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day. (My emphasis)
Section 32(5)
The applicant shall submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms. (My emphasis)
Section 34
A person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation. (My emphasis)
Section 55(1)
Subject to subsection (2), an insured person shall not apply to the Licence Appeal Tribunal under subsection 280(2) of the Act if any of the following circumstances exist:
- 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 benefits within the times prescribed by this Regulation.
Reasonable Explanation
10This accident occurred on December 1, 2018. There is no dispute that the applicant did not file an OCF-1 until December 5, 2019, more than a year later. As such, neither party disputes the applicant failed to notify the insurer within seven days of the accident pursuant to s. 32(1), nor that she failed to file an application for accident benefits within thirty days as per s. 32(5).
11Pursuant to s. 34 of the Schedule, this case, therefore, turns on whether the applicant provided a “reasonable explanation” for the delay in notifying the respondent of her intention to apply for benefits.
12While not binding on this Tribunal, the Financial Services Commission of Ontario case in Horvath and Allstate Insurance Company of Canada2, is instructive in this matter, as it identified the following principles concerning the interpretation of a “reasonable explanation”:
i. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.
ii. The onus is on the insured person to establish a “reasonable explanation”.
iii. Ignorance of the law alone is not a “reasonable explanation”.
iv. The test for a “reasonable explanation” is both a subjective and objective test that should take into account of both personal characteristics and a “reasonable person” standard.
v. The lack of prejudice to the insurer does not make an explanation automatically reasonable.
vi. An assessment of reasonableness includes a balancing of prejudice to the insurer, hardship to the claimant and whether it is equitable to relieve against the consequences of the failure to comply with the time limit.
13While I find portions of applicant’s explanation credible, I do not find she acted with due diligence in making her application pursuant to ss. 32(1) and 32(5) of the Schedule.
Applicant’s Version of Events
14To start, the applicant submits she acted reasonably in the period following the accident. That is, she immediately reported the accident to the Toronto Police Service by telephone, and she then attended a collision reporting center.
15The applicant submits she did not seek medical attention until she attended a walk-in clinic on February 9, 2019, approximately ten-weeks post-accident. The applicant was unable to provide any clinical notes and records related to this medical visit.
16The applicant visited her Family Physician, Dr. Ghadrian, four times between March and September 2019. However, it was not until September 2019 that she reported lower back pain. The clinical notes and records do not reference the accident until December 2, 2019 when she reported this lower back pain, as well as pain in her left trapezius and her left knee.3
17The OCF-1 was submitted to the insurer on December 5, 2019, after applicant counsel was retained.
18When questioned about this delay in providing the application, the applicant provided several explanations.
19First, she thought she was ok, and was managing her stiffness, back pain, and knee pain. She further stated that she was managing her pain through over-the-counter medication and thought it would go away. She further stated that she was “stressed about insurance”.4 Otherwise, the applicant’s physician did not recommend any further investigation, such as imaging or referrals to specialists, for complaints attributed to the accident.
20The applicant submits she completed the OCF-1 only when she required further treatment for physiotherapy and chiropractic treatment.5 The applicant also made a claim for collateral benefits through her employer to Great West Life, and received partial funding for such treatment.6
21Secondly, the applicant relies on advice purportedly provided by her insurance broker. That is, according to the applicant, she called her broker on April 10, 2019, at which time she was advised she had up to one year to file a personal injury claim. The applicant submits she mistakenly relied upon this advice to her own detriment. The applicant was otherwise unable to provide any further evidence of this conversation, but offered to obtain the phone records (if required).
Analysis of the Applicant’s Explanation
22Given the evidence provided, I do find that the applicant took reasonable steps to inform the police in the immediate period following the accident. I also accept her evidence that she did not file an OCF-1 sooner because she hoped her condition would improve.
23Despite these findings though, I do not conclude that the applicant has met her onus (in accordance with Horvath) to establish a “reasonable explanation” for her delay.
24First, I do not have any medical evidence before me to suggest she reported any accident-related injuries to a medical professional prior to December 2019, i.e., more than year following the accident. This was despite seeking advice from her broker in April of 2019. Otherwise, I do not find it credible that the applicant would fail to report any accident-related symptoms to her family physician in the approximately one-year period following the accident. This was despite at least four separate visits to her physician, instead seeking advice regarding plastic surgery for a “tummy tuck” in March and July 2019 and referencing non-specific back pain in September 2019.
25Second, I do not find her reliance on the broker’s alleged advice is sufficient to meet this onus either. While I accept the applicant contacted her broker in April 2019, or approximately four months following the accident, I have little else to rely upon to establish the content of this conversation.
26While s. 15 of the Statutory Powers Procedure Act7 states the Tribunal may consider any evidence relevant to the subject matter of the proceeding, I do not have any evidence of this interaction, aside from the written submissions of the applicant’s paralegal. No affidavit evidence was provided in support of this motion, nor is there any reference to this call in the EUO transcript provided. Although the applicant stated she was prepared to provide phone records to illustrate a call was made to the broker, it was not provided as part of the motion record. Regardless, I also fail to see how phone records could otherwise verify any advice allegedly provided by the broker. Given the abject lack of evidence of this advice, I place little weight upon this submission.
27Otherwise, I have no evidentiary record to support what reasonable steps the applicant undertook to protect her rights in the intervening eight months between April and December 2019. While I accept that she did not have counsel during this period, she took no discernable steps to protect her rights to claim accident benefits, pursuant to s. 32(1). These reasonable steps go to the very heart of establishing a reasonable explanation for the delay.
28I do accept the applicant was under the belief that her injuries would subside on their own. However, I do not find it credible that she would fail to report any accident-related injuries to her family physician until December 2019, a year later. I also do not find her subjective belief about the nature of her injuries is a reasonable excuse for failing to report the accident to the insurer within the specified timelines.
29Ignorance of the law is not a reasonable explanation, pursuant to s. 34 of the Schedule. The applicant is deemed to know the applicable period for notifying the insurer of her intention to claim accident benefits or provide notice as soon as practicable. Given the other steps the applicant undertook during this period – contacting the police (including attending the collision reporting center and completing the requisite report); attending the walk-in clinic; visiting her family physician – and given no evidence of the alleged call with her broker has been established, I cannot conclude she acted reasonably in failing to notify the insurer with the prescribed timelines set out in s. 32. Nor can I conclude she has provided a reasonable explanation for this twelve-month delay pursuant to s. 34 of the Schedule.
Prejudice
30This is a motion to bar the applicant’s application to the Tribunal, pursuant to s. 55(1), for failing to notify the respondent of the circumstances giving rise to the claim. If I bar this application, the applicant will have no ability to seek any statutory accident benefits pursuant to the Schedule.
31Conversely, the respondent submits that given the passage of time, it has been deprived of any ability to contemporaneously investigate or assess the applicant’s injuries sustained in the accident. The applicant waited approximately one year before filing this application. It has now been more than three years since the accident and the applicant sustained injuries in a subsequent slip and fall in January 2020. Thus, there is an issue related to causation of the injuries sustained.
32The Schedule is consumer protection legislation. It is specifically designed to ensure that injured parties can seek timely access to accident benefits following an accident. In conferring the power to determine accident benefits matters upon the Tribunal, the legislature aimed to ensure these disputes were concluded in an efficient, fair, and accessible manner. Ensuring efficiency of this process is precisely why time limits were imposed.
33The time limits in s. 32 aim to ensure that insurers are provided timely notice of claims, so there is a level of certainty in the process. Timing is often critical in the investigation of claims, given that the nature of injuries sustained in automobile accidents often change over time. Time limits not only provide a level of certainty regarding the accident benefits process, but prevent applicants from sleeping on their rights, only to file claims years later when relevant evidence is no longer available. The time limits also permit the respondent to investigate and assess claims in order to approve claims for benefits, or permit the applicant to commence the dispute resolution process.
34This is not simply a technical breach of s. 32, as the applicant submits. Given the passage of time, including the intervening slip and fall, the respondent has been prejudiced as it has been unable to contemporaneously investigate and assess the applicant’s injuries.
35I am further unpersuaded by the applicant’s submission that the respondent accepted this claim because it adjusted the application for benefits. Given the consumer protection nature of the Schedule, insurers have a duty to adjust a file when any claim for benefits is made.
36Similarly, a defence pursuant to s. 32 can be raised at any time during the proceeding. This motion has been filed at the earliest opportunity in the application process, and a case conference has not yet been conducted.
37Sections 279 to 289 of the Insurance Act8 and the associated regulations are meant to be a complete code for dispute resolution of accident benefit matters. Had the legislature intended s. 4 of the Limitations Act9 to apply, it would have specifically made reference to this legislation within it. This bald assertion made by the applicant is not otherwise supported by any compelling evidence to establish that the time period specified in s. 32 of the Schedule is somehow superseded by s. 4. of the Limitations Act.
38When I consider the totality of the evidence and specifically weigh the prejudice to each party, I must conclude the scales tip in favour of the respondent. The prejudice wrought by the delay is real, as it has been unable to investigate or assess the applicant’s injuries due to the passage of time. More than three years have now elapsed since the accident.
39The applicant has not met her onus in establishing a reasonable excuse for the delay pursuant to s. 34 of the Schedule. Ignorance of the law or a subjective belief that injuries will improve is not an excuse for failing to notify the insurer of a claim for benefits with the applicable time period. The fact remains that the applicant waited for more than twelve months before notifying the insurer of her intention to seek applicant benefits. That delay not only contravened s. 32, but deprived respondent of obtaining necessary evidence to investigate this claim and frustrated the potential adjudication of this matter.
40For the reasons set out above, I find the applicant did not notify the insurer of the accident or apply for benefits within the timelines prescribed by the Schedule and has not provided a reasonable excuse for the significant delay of more than twelve months. Accordingly, I find she is statute-barred pursuant to s. 55(1) of the Schedule from proceeding with her application before the Tribunal.
ORDER
41This application is statute-barred pursuant to s. 55(1) of the Schedule.
42The case conference scheduled for January 28, 2022 shall be cancelled.
43The Tribunal file shall be closed.
Released: December 13, 2021
Ian Maedel, Vice Chair
Footnotes
- S.O. 2002, c. 24, Sched. B.
- FSCO A02-000482, Tab 7, Reply Submissions of the Moving Party.
- Clinical Notes and Records of Dr. Ghadrian. Tab 2, Reply Submissions of Moving Party.
- Ibid. pp. 21-22.
- Ibid. pg. 22.
- Transcript of the Examination Under Oath, February 25, 2020, pg. 42. Tab 1, Reply Submissions of the Moving Party.
- R.S.O. 1990, CHAPTER S.22.
- R.S.O. 1990 c. I.8.
- S.O. 2002, c. 24, Sched. B.