Citation: Rios v. Chieftain Insurance, 2021 ONLAT 20-009779/AABS - PI

Licence Appeal Tribunal File Number: 20-009779/AABS

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:

Gerson Rios

Applicant

and

Chieftain Insurance

Respondent

PRELIMINARY ISSUE DECISION AND ORDER

ADJUDICATOR:

Cezary Paluch

APPEARANCES:

For the Applicant:

Gerson Rios, Applicant

Alexander Makaronets, Counsel

For the Respondent:

Daniel Strigberger and Stas Bodrov, Counsel

Interpreter

Susana (Spanish Language)

Court Reporter:

Clearly Spoken Inc.

Heard by Videoconference:

September 23 and 24, 2021 and by written submissions

BACKGROUND

1The applicant was involved in an automobile accident on May 7, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'')¹. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2A case conference was conducted on February 10, 2021, and a preliminary issue hearing was scheduled related to whether the applicant is disentitled to benefits for failing to apply within the timelines.

3Four witnesses testified at the preliminary issue hearing; the applicant, applicant’s uncle, S.H.R. (owner of the car involved in accident), G.M. (insurance agent and owner of the brokerage), and K.S. (adjuster).

PRELIMINARY ISSUES

4The issues to be addressed are set out in the case conference order dated March 5, 2021 as follows:

i. Is the applicant disentitled to accident benefits because he does not have a reasonable explanation for failing to comply with the procedures for claiming accident benefits within the time limit imposed by section 32(1) of the Schedule?

ii. Is the applicant barred by section 55(1)1 of the Schedule from commencing his application to the Tribunal because he has not notified the respondent of the circumstances giving rise to a claim for a benefit or he has not submitted an application for the benefit within the times prescribed in the Schedule?

RESULT

5The applicant’s explanation for failing to apply for accident benefits within the timelines prescribed by the Schedule is unreasonable. His application is barred from proceeding under s. 55(1)1 of the Schedule and is accordingly dismissed.

ANALYSIS

6Pursuant to s. 32(1) of the Schedule, the timeline to give notice of intention to apply for accident benefits is no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit.

7The Application for Accident Benefits (OCF-1) is dated April 8, 2020. There is no dispute between the parties that the applicant failed to give notice of his intention to apply for accident benefits from the respondent until April 8, 2020:² about 11 months after the accident.

8The parties agree that under s. 34 of the Schedule, a person who fails to comply with a time limit set out in the Schedule may still seek a benefit if they provide a reasonable explanation for the delay. This preliminary issue dispute centres on whether the applicant’s explanation for his delay in applying for benefits is a reasonable one.

The applicant has not established a reasonable explanation for the delay

9The applicant testified at the hearing and explained that the vehicle that he was driving during the accident was owned by his uncle S.H.R., and accordingly he contacted his uncle after the accident because he thought that his uncle would contact his insurance company and take care of the matter. In other words, as I understand, the applicant was unaware that he had to contact his own insurer to apply for accident benefits.

10The applicant also testified that S.H.R. and his wife both contacted their insurance agent many times, including a few days after the accident, to notify their agent of the accident, and the agent’s account representative, M.R. apparently refused to open a claim, or at least advise S.H.R. or his wife that the applicant himself as the driver of the vehicle should open a claim for accident benefits with his own insurance company, or notify them of any additional steps that needed to be taken.

11The applicant’s Affidavit dated December 17, 2020, states that he sustained injuries to his right elbow, back, neck, shoulders, including headaches, dizziness, fatigue, depression and anxiety and that his injuries worsened after the accident. I note that the Disability Certificate (OCF-3) form dated June 11, 2020 specifies that the anticipated duration of the disability was 9-12 weeks.

12The respondent refers me to the decision of the Financial Services Commission of Ontario in Horvath and Allstate Insurance Company of Canada, (FSCO A02-000482), (Horvath), a decision that has been routinely followed by this Tribunal in similar proceedings.³ Horvath sets out a list of six factors that may be considered in deciding whether an explanation for delay is “reasonable” under s. 34 of the Schedule:

1. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.

2. The onus is on the insured person to establish a “reasonable explanation.”

3. Ignorance of the law alone is not a “reasonable explanation.”

4. 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.

5. The lack of prejudice to the insurer does not make an explanation automatically reasonable.

6. 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.

13Applying the six factors in Horvath, I find the applicant’s evidence satisfies the relatively low threshold of being credible and worthy of belief. However, the onus rests with the applicant to show that his explanation is reasonable.

14The applicant relies on three main reasons for the delay being reasonable, each which I address below.

A. His injuries would resolve

15The applicant submits that he thought that his injuries would resolve in the near future and accepted the notion that there was no option for him to open a clam for medical and rehabilitation benefits. After several months, the applicant realized that his injuries would not resolve and opted to look at his options at which point the timelines associated with s. 32(1) and 34 of the Schedule had expired.

16In this case, the applicant did not have a delayed onset of symptoms. The applicant testified that he was taken to the hospital by the paramedics on the day of the accident and immediately after the accident felt pain in his back and shoulders. He went to see his family doctor shortly afterwards. During cross examination, he conceded that since the day of the accident, pretty much, he has had pain on the right side including his back and neck.⁴

17Similarly, in his Examination Under Oath (EUO) dated July 9, 2020, he stated that he was experiencing a lot of pain after the accident including in May/summer 2019 time period and he was taking pain medication prescribed by his family doctor.⁵ He further stated that he was in pain from summer to Christmas time and he aggravated his injury in December [2019].⁶

18Yet, the applicant never applied for accident benefits until more than 11 months later, in April 2020. The applicant is not exempt from the timelines provided by section 32 due to that he thought his injuries would resolve.

B. He did not know he could apply for benefits from the respondent

19This is the crux of the applicant’s argument – that he was confused, and did not know he had to contact his own insurance company to start an application for accident benefits because his car was never involved, rather it was his uncle’s car and his uncle’s insurance policy had nothing to do with it.

20The applicant testified that he knew at the time of the accident he was insured with the respondent and was using a broker, FSB Insurance Limited, since about 2006. The applicant also testified that he did receive the insurance contract including the “pink slip” and chose not to read it, including the specific and clear language on the back of the pink slip that instructed him to report full details promptly of any accident to broker or the nearest claim service.⁷ He conceded on cross examination that he understood that language and also that his Certificate of Insurance, which he also received, listed the different coverages that the policy provided for including medical, rehabilitation and attendant care, and that he paid the extra premium of $5.00 for enhanced coverage under his policy .⁸ Further, when he was asked if thought to call his broker after the accident, the applicant explained that he is not the kind of person to be calling and bothering people.⁹ When he was asked that the policy documents did not specify that he had to be driving his own vehicle to be entitled to benefits, he agreed but again reiterated that it was his understanding that his policy only applied to the car listed on the policy.¹⁰ He again stated that he did not read the documents but the broker explained it to him.¹¹ He also conceded during cross examination that, between the date of the accident and April 8, 2020, neither he nor anyone on his behalf contacted his broker or the respondent.¹²

21The applicant’s proposed explanations that he was confused and did not know to understand, or be aware of his automobile policy benefits do not constitute reasonable excuses, as ignorance of the law is not a “reasonable explanation”.

22In analyzing both the subjective and objective nature of the test for a reasonable explanation, it may have been reasonable for some delay in the applicant reporting the accident to the respondent and filing his OCF-1 as it appears that he has suffered ongoing pain as a result of the accident. However, there is no information before me as to how his injuries prevented him from complying with s. 32 of the Schedule for almost a year while having so much experience dealing with insurance brokers in the past.

C. The explanation that the insurance agent was negligent in her duties

23The applicant submits that S.H.R. did contact his agent’s account representative, M.R. to report the accident and that she failed to fulfill her duties. He further submits that M.R. told him that since the applicant was not a listed driver on his uncle’s policy, he should fix the property damage at his own expense. Furthermore, he submits that M.R. was “uneager” to connect S.H.R. to his insurance company “most likely as she attempted to prevent the accident being reported” as his policy was set to renew on May 10, 2019 and somehow the agency had a financial incentive not to report this accident.

24I simply cannot accept the applicant’s explanation without any corroborating proof that M.R., or the insurance broker, was negligent or had financial interest that prevented them from assisting their client in reporting the accident, and this is the reason they did not help S.H.R. and this ultimately somehow prevented him from calling his own broker and reporting the accident.

25To the contrary, the evidence from G.M. who testified (the insurance agent and owner) was that his agency does not make any determination as to coverage and that they would not refuse to transfer a client to the insurance company to report a claim.¹³ Further, the normal procedure was that if a client called and reported an accident they would make a note in the system but the official record would be when the claims department opens the claim. G.M. described in detail the protocol that M.R. would have followed when a claim was reported by a client including providing a claims phone number, or they would “warm transfer” or refer to the web portal. He testified that M.R. worked in his office at the time of the accident and left in February 2020 and he never had any issues with her not following protocols.

26As far as this matter, G.M. was asked when the first note after the May 7, 2019 accident was, and he testified that the applicant called on June 18th, 2019 to cancel the policy. However, July 17, 2020 was the first time that the accident was finally reported to them. Finally, G.M. also confirmed that he has never had any direct contact with the applicant’s uncle or the applicant involving this manner. M.R., who apparently did have contact with the uncle, never testified. In this respect, I saw no reason to depart from G.M.’s testimony and explanation how each claim was handled at his agency.

27Moreover, the applicant was insured pursuant to a contract of insurance with the respondent and no other insurer. His contract required him to notify the respondent within seven days of the accident. To the extent that the applicant was caught up in any related issues as to S.H.R.’s own insurance policy, that was between S.H.R. and his insurer and not the applicant. I simply do not see how whatever was happening with S.H.R. and his insurance prevented the applicant from reporting the accident to his own insurance company. His actions were objectively and patently unreasonable.

28For completion, the applicant’s submission referenced that the respondent had a duty to subpoena M.R. to discus the communication that she had with the applicant and his wife, and in the absence of her testimony, the applicant’s testimony and that of his uncle should be accepted at face value. In my view, there is no ownership in witnesses and parties are free to summons any relevant witnesses. In other words, I cannot put any weight on the allegation of one party that the other somehow provided an undertaking to subpoena a witness and they were prejudiced.

29As well, at the start of the hearing, I asked the parties to identify what witnesses would be called and applicant’s counsel advised that they have been unable to summons M.R. who apparently was privy to the conversation between the uncle regarding the accident benefits and property damage claims. As I understood, the explanation provided was that M.R. was not available because she was in a car accident and they were unable to serve her with a summons. The respondent’s counsel also submitted that the applicant did not have an opportunity to summons M.R. At that point I specifically inquired, several times, what relief the applicant was seeking because of a potential material witness being unavailable, or any difficulties with serving summons, and that applicant’s counsel indicated that he was not seeking at relief and was ready to proceed with the hearing.¹⁴ There was no request for an adjournment to allow additional time to serve any summons or for any other relief regarding difficulties with serving a summons. On that basis, we proceeded with the hearing and M.R. was never called by either party to testify, so I cannot speculate what evidence she would have provided.

Section 55

30Finally, s. 55 of the Schedule states that an insured person shall not apply to the Tribunal under subsection 280(2) of the Insurance Act if 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 the benefit within the times prescribed in s. 32.

31For the reasons above, I find that the applicant did not notify respondent of the accident or apply for benefits within the times prescribed by the Schedule and has not provided a reasonable excuse for the delay of nearly eleven months. Accordingly, I find that he is statute-barred from proceeding with his application before the Tribunal.

ORDER

32The applicant has not provided a reasonable explanation for failing to apply for accident benefits within the time limits prescribed by the Schedule. His application is barred by s. 55(1)1 of the Schedule and is accordingly dismissed.

Footnotes

1. 1O. Reg 34/10.
2. 2The applicant’s Affidavit at para. 11 states that he applied for accident benefits through his own insurance company on April 8, 2019 but this appears to be a typo and the correct year is 2020.
3. 3See, e.g., J.V. v Unifund Assurance Company, 2019 CanLII 130359 (ON LAT) at para. 7 and Basuric v. Dominion of Canada General Insurance Company (Travelers), 2021 CanLII 50781 (ON LAT) at para. 5.
4. 4Transcripts, September 23, 2021, page 89-90.
5. 5Joint Brief, EUO, page 92.
6. 6Joint Brief, EUO, page 94.
7. 7Transcripts, September 23, 2021, page 72.
8. 8Transcripts, September 23, 2021, pages 72-73 and 80.
9. 9Transcripts, September 23, 2021, page 80.
10. 10Transcripts, September 23, 2021, page 82.
11. 11Transcripts, September 23, 2021, page 83.
12. 12Transcripts, September 23, 2021, page 86-87.
13. 13Transcripts, September 24, 2021, pages 12-13,
14. 14Transcripts, September 23, 2021, pages 230-236.```