Diana Abu Alassal v. Co-Operators General Insurance Company, 2021 CanLII 13204

Citation: Alassal vs. Co-Operators General Insurance Company, 2021 ONLAT 20-004648/AABS

Released Date: 01/18/2021

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:

Diana Abu Alassal

Applicant

and

Co-Operators General Insurance company

Respondent

DECISION

ADJUDICATOR: Robert Watt

APPEARANCES:

For the Applicant: Mark Stoiko, Counsel

For the Respondent: Bruce Keay, Counsel

HEARD: Via written submissions

OVERVIEW

1The applicant was injured in an accident on May 21, 2018, and sought various benefits from the respondent, Co-operators General Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Respondent denied the benefits in dispute on the basis that the applicant was barred from proceeding pursuant to s. 32 of the Schedule. The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUE IN DISPUTE

2The following issue are in dispute:

1. Is the applicant barred from proceeding with her application because she failed to comply with section 32 of the Schedule?

RESULT

3The applicant is barred from proceeding with her application.

BACKGROUND

4The applicant was involved in a motor vehicle accident on May 21, 2018. The respondent’s adjuster met with the applicant on June 14, 2018, providing her with the accident benefit package. The respondent explained the forms and benefits to her. The respondent asked the applicant to complete and submit her OCF-1 and OCF-3.

5The respondent’s adjuster then called the applicant on August 16, 2018 and left a message inquiring where the applicant’s OCF-1 was and to call her. There was no response by the applicant to the phone message at any time.

6The applicant eventually submitted her application on April 5, 2019, which was received by the insurer on April 9, 2019.

7An examination under oath was held on August 1, 2019, where the applicant admitted that she had a meeting with the respondent’s adjuster who explained the forms. She also acknowledged that she had been asked to call the adjuster. Her reason for filing late was “I take my time doing things, I’m kinda person, I do my thing, I take my time, I know I piss people off, I don’t care, but this is me.”²

ANALYSIS

8I find on the evidence that that the applicant is statute-barred from proceeding with her application.

9Section 32 of the Schedule requires an insured to notify the insurer within seven days of the accident, and to submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms.³

10Section 34 provides that a person’s failure to comply with the time limit set out in this part does not disentitle the person to a benefit if the person has a reasonable explanation.⁴

11Section 55 provides that an insured shall not apply to the Licence Appeal Tribunal, if the insured has not submitted an application for the benefit, within the times prescribed by this Regulation.⁵

12In Horvath v. Allstate⁶ the arbitrator ruled that the following legal principles must be considered when determining whether the applicant has a reasonable explanation for a lengthy delay in providing an application to the insurer:

1. An explanation must be found to be credible or worthy of belief, before its reasonableness can be assessed;
2. The Applicant has the onus of establishing that the explanation is reasonable;
3. Ignorance of the law is, not in itself, a reasonable explanation;
4. The test of reasonableness is both a subjective and objective test, that takes into account both personal characteristics and the reasonable person standard;
5. Lack of prejudice to the insurer does not make an explanation automatically reasonable.

13In Carruthers v Royal & Sun Alliance Insurance Company,⁷ the arbitrator stated that an insurer suffers prejudice, even though the insurer has no specific evidence of prejudice.

14The applicant’s position is that the insurer did not act in good faith because the insurer did not warn the applicant about the deadline to file the OCF-1 and the harsh consequences of not filing on time.

15The respondent’s position is that the purpose of the limitation period is to allow the insurer to gather information at an early stage to allow the insurer to fairly and quickly evaluate and process the applicant’s claim.

16The respondent could be prejudiced when a significant passage of time takes place and the applicant has not provided any reasonable explanation for her failure to submit an application. Both the Horvath and Carruthers cases quoted above support the respondent’s position. I endorse the statements in both the Horvath and Carruthers cases.

17I agree with the respondent’s position. No reasonable explanation has been provided by the applicant for failing to get her application submitted within the time frame required under the Schedule. The applicant ignored both the request at the meeting in June 2018 and the follow up phone call in August 2018 for her to get the application in. The applicant’s explanation at the examination under oath as to why she delayed submitting her application clearly shows a deliberate disregard to follow the time frame required to submit an application. In my view, the applicant has not provided an objective or subjectively reasonable explanation for the delay under s. 34 of the Schedule. Accordingly, her application is statute-barred under s. 55 for failure to comply with s. 32.

ORDER

18For the reasons given above, the application is dismissed.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2Examination Under Oath, p. 114.
3. 3O. Reg. 34/10, section 32.
4. 4Ibid., section 34.
5. 5Ibid., section 55(1).
6. 6Horvath v. Allstate, 2003 Carswell ONT 5651, FSCO A02-000482.
7. 7Carruthers v. Royal & Sun Alliance Insurance Company, 2002 Carswell ONT 5259, FSCO A-990-000923