Citation: Iqbal vs. Gore Mutual Insurance Company, 2021 ONLAT 20-005901/AABS

Released Date: January 29, 2021

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Khalid Muhammad Iqbal

Applicant

and

Gore Mutual Insurance Company

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Meleni David, Counsel

For the Respondent:

David Raposo, Counsel

HEARD

By way of written submissions

OVERVIEW

1Khalid Muhammad Iqbal, the applicant (“Mr. Iqbal”), was involved in an automobile accident on April 28, 2016. At the time of the accident, Mr. Iqbal was operating a tractor trailer on highway 401 in Chatham Kent. Mr. Iqbal was travelling from Ajax on route to Texas when he lost control of the vehicle and flipped the tractor trailer onto its side.¹

2After the single motor vehicle accident, Mr. Iqbal attended the Chatham Kent Health Alliance Hospital where he was diagnosed with a left distal humerus open supracondylar comminuted fracture with dislocation and olecranon fracture, multiple lacerations and multiple undisplaced fractures of the hips and pelvis.² Mr. Iqbal was subsequently transferred to Victoria Hospital Emergency department in London due to the nature and severity of his injuries. Mr. Iqbal’s left elbow required surgical intervention and this injury has since been described as permanent by his treating physician.³ Dr. M.A. Rahman, Mr. Iqbal’s family doctor, has also diagnosed Mr. Iqbal with chronic pain and psychological conditions since the accident including anxiety, depression and a sleep disorder.⁴

3Mr. Iqbal applied for and received disability benefits from RBC Life Insurance Company (“RBC”) which were available to him through his employment. Mr. Iqbal settled his claim with RBC and received payment of settlement funds on July 17, 2019.

4The first notice of the accident that Mr. Iqbal provided to Gore Mutual Insurance Company (“Gore”) was on June 27, 2019, when Mr. Iqbal submitted his Application for Accident Benefits (“OCF-1”) to Gore, some three years and two months post-accident. On July 10, 2019, Mr. Iqbal also forwarded two Applications for Determination of Catastrophic Impairment (“OCF-19s”) to Gore⁵ because he alleged that he sustained a catastrophic (“CAT”) impairment as a result of the accident.

5There is no dispute between the parties that Mr. Iqbal provided notice of the accident to Gore and submitted his OCF-1 well outside of the prescribed seven-and 30-day timelines in s. 32 of the Statutory Accident Benefits Schedule – Effective September 1, 2010.⁶ Instead, the preliminary issue before me is whether Mr. Iqbal has a reasonable explanation for that delay that would permit him to proceed with his application to Gore for accident benefits.

6A case conference was held on September 29, 2020 and the matter proceeded to a written preliminary issue hearing.

PRELIMINARY ISSUE

7The following preliminary issue is to be decided:⁷

(i) Is Mr. Iqbal disentitled to accident benefits because he does not have a reasonable explanation for providing Gore with notice of the accident and/or failing to apply for benefits within the time limits imposed by s. 32(1) of the Schedule?

RESULT

8I find that Mr. Iqbal has failed to prove that he has a reasonable explanation for his significant delay in notifying Gore of the accident and submitting his OCF-1. Therefore, Mr. Iqbal is not entitled to accident benefits from Gore and he is barred from proceeding with his application to the Tribunal.

ANALYSIS

9Section 32(1) of the Schedule requires an insured person to inform an insurer of an accident within seven days, at which point the insurer will provide the insured with an OCF-1 along with various other documents. Section 32(5) then requires an insured person to complete and deliver these forms back to the insurer within 30 days.

10As noted, the parties agree that neither of the timelines in s. 32(1) and s. 32(5) of the Schedule were met by Mr. Iqbal. Accordingly, Mr. Iqbal raises the exception in s. 34 which allows an insured person to proceed with a late application for accident benefits if the person has a “reasonable explanation” for the delay.

11For the reasons that follow, I find that Mr. Iqbal has failed to meet his onus of proving that he had a reasonable explanation for his failure to comply with the time requirements prescribed in s. 32 of the Schedule and, as a result, Mr. Iqbal is not entitled to accident benefits from Gore.

Reasonable Explanation

12Gore relies upon the following principals that were adopted by the Tribunal in J.V. v. Unifund Assurance Company⁸ in interpreting what constitutes a “reasonable explanation” for the purposes of s. 34 of the Schedule:

(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 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; and

(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.⁹

13Although I am not bound by other Tribunal adjudicators, I am persuaded by the principles enumerated in J.V. v. Unifund and find this decision of assistance in determining if Mr. Iqbal has a reasonable explanation for his delay in notifying Gore of the accident and filing his OCF-1.

14Mr. Iqbal offers the following “reasonable explanations” for his delay:

(i) He was not in a frame of mind after the accident to decide which service provider, Gore or RBC, would be beneficial to him;

(ii) He naively followed the advice of his employer that RBC “would take care him;”

(iii) He was not advised about his coverage under his automobile insurance policy with Gore by his legal representatives at Alam Law Office;

(iv) His long-term disability benefits through RBC “started immediately” without giving him time to explore other options or to obtain legal advice;

(v) He was ignorant and naïve about his automobile policy benefits with Gore because he had never been in any previous accidents, he had complicated fractures, he was in an unknown city, he was not in his own vehicle at the time of the accident and he had been focused on recovery; and

(vi) He is not a qualified person to understand complicated insurance systems or laws.

15Gore’s position is that none of these reasons for Mr. Iqbal’s late reporting of the accident and seeking accident benefits from Gore constitute a “reasonable explanation” when measured against the principles set out in J.V. v. Unifund. I agree.

16For the following reasons, I find that Mr. Iqbal has failed to prove that he had a reasonable explanation for failing to notify Gore of the accident and failing to submit his OCF-1 to Gore until three years and two months post-accident:

(i) While Mr. Iqbal’s submissions are unclear as to what is meant by “frame of mind,” there is no evidence before me that Mr. Iqbal suffered any cognitive or neurological conditions that would have impeded him from deciding which insurance avenue to pursue or from deciding to simultaneously pursue benefits from both Gore and RBC

(ii) Mr. Iqbal’s “frame of mind” after the accident did not preclude him from retaining Alam Law Office. Mr. Muhammad Alam was retained to represent Mr. Iqbal regarding his disability insurance claim with RBC at least as of December 1, 2016, which was within eight months of the accident, given Mr. Iqbal’s signed Authorization and Direction to RBC of the same date directing RBC to release any and all information from Mr. Iqbal’s file to Alam Law Office.¹⁰ Mr. Alam also sent correspondence to RBC on December 9, 2016 confirming its retainer by Mr. Iqbal;¹¹

(iii) While Mr. Iqbal reported to Dr. G. Khan, a treating general physician specializing in psychiatry, that his memory was low, his concentration was diminished and that he forgot day-to-day things due to pain and fatigue,¹² there is no explanation as to how these complaints prohibited Mr. Iqbal from notifying Gore of his accident and filing his OCF-1 in a more timely manner especially given that Mr. Iqbal had been represented by counsel since December 2016;

(iv) There is no evidence before me to support Mr. Iqbal’s submissions that he was following his employer’s advice and that he was not advised about his accident benefits coverage with Gore by his legal representatives at Alam Law Office, such as a sworn affidavit or the transcripts from Mr. Iqbal’s examination under oath,¹³ and these submissions are not evidence;

(v) I disagree with Mr. Iqbal that his insurance coverage with RBC “started immediately” such that he was not afforded time to explore other coverage options or to obtain legal advice. The RBC file notes that Mr. Iqbal’s claim was reported on May 3, 2016,¹⁴ but as of June 10, 2016 it appears as though certain documentation was outstanding and that Mr. Iqbal was only advised on July 7, 2016 that his claim was approved.¹⁵ There is no evidence before me that supports Mr. Iqbal’s submission that he did not have sufficient time to consider other insurance coverage between the date of the accident and July 7, 2016;

(vi) Mr. Iqbal’s proposed explanations that he was naïve, ignorant and not sophisticated enough to understand or be aware of his automobile policy benefits with Gore do not constitute reasonable excuses, as ignorance of the law is not a “reasonable explanation;” and

(vii) In analyzing both the subjective and objective nature of the test for a reasonable explanation, it may have been reasonable for some delay in Mr. Iqbal reporting the accident to Gore and filing his OCF-1 as there is no dispute that Mr. Iqbal suffered significant injuries as a result of the accident. However, there is no information before me as to how Mr. Iqbal’s injuries prevented him from complying with s. 32 of the Schedule for three years and two months after the accident while having legal representation for the majority of this time period.

Balancing Prejudice and Hardship

17In his submissions, Mr. Iqbal requested “justice” from the Tribunal based on his age and his physical and psychological injuries such that he should not be barred from claiming accident benefits from Gore. While this is not the test under s. 34 of the Schedule, the principles in J.V. v. Unifund require a balancing of prejudice to Gore with the hardship to Mr. Iqbal to determine if it would be equitable to relieve against the consequences of the failure to comply with the timelines under s. 32 of the Schedule.

18On the evidence, I find that it would not be equitable to relieve Mr. Iqbal from the consequences of failing to comply with s. 32 of the Schedule for several reasons.

19First, while there may be some hardship for Mr. Iqbal given that he has submitted two OCF-19s seeking a CAT determination, I find the OCF-19s were not supported by any assessments or calculations of whole person impairments despite both forms endorsing that Mr. Iqbal sustained an impairment, or a combination of impairments, that result in 55 percent or more impairment of the whole person. Therefore, it is unclear how the OCF-19s alone would support a CAT impairment determination which would allow access to greater amounts and different types of benefits under the Schedule.

20Second, although the total amounts paid were not particularized in the evidence, Mr. Iqbal did receive benefits from RBC which included a lump sum settlement of $70,000.00. These amounts would assist in offsetting any hardship from not having access to accident benefits under the Schedule.

21Third, I accept that the prejudice to Gore would be significant as I agree with Gore’s submissions that it did not have an opportunity to investigate, administer and assess Mr. Iqbal’s claim contemporaneously when benefits may have been payable. This prejudice is amplified as a result of the length of the delay in this matter, as I agree with Gore that the delay is not a minor one of weeks or months but rather of years.

ORDER

22For all of the reasons set out above, I find that Mr. Iqbal is statute-barred from proceeding with his application to the Tribunal pursuant to s. 55 of the Schedule because he did not comply with the time limits to notify Gore of the accident or to apply for accident benefits as prescribed in s. 32 and, further, he has not provided a reasonable excuse for the delay under s. 34 of the Schedule.

Footnotes

1. 1Clinical Notes and Records (“CNRs”) from Chatham Kent Health Alliance hospital, Written Hearing Brief of the Applicant, tab 1.
2. 2Ibid.
3. 3CNRs of Dr. Abdel-Rahman Lawendy, orthopaedic surgeon, clinic Report dated January 2, 2018, Written hearing Brief of the Applicant, tab 14.
4. 4CNRs of Dr. M.A. Rahman dated September 13, 2016, February 9, 2017, July 13, 2017 and July 12, 2018, Written hearing Brief of the Applicant, tab 15.
5. 5Reply Submissions of the Respondent, tab 2.
6. 6O. Reg. 34/10 (the “Schedule”).
7. 7Preliminary Issue 2 as set out in the Tribunal’s October 5, 2020 Order was withdrawn by Gore.
8. 82019 CanLII 30359 (ON LAT) (“J.V. v Unifund”).
9. 9Ibid. at para. 7.
10. 10Long-Term Disability Benefits file from RBC, Written Hearing Brief of the Applicant, tab 3, page 173.
11. 11Document Brief of the Respondent, tab 6.
12. 12CNRs of Dr. G. Khan dated January 11, 2019, August 23, 2019 and October 30, 2019, Written Hearing Brief of the Applicant, tab 16.
13. 13At paragraph 17 of Mr. Iqbal’s submissions, Mr. Iqbal references his testimony at the Examination Under Oath (“EUO”) but no further information is provided as to the date of the EUO.
14. 14Supra note 10 at page 374.
15. 15Ibid. at page 304.