Citation: Clements v. The Co-operators Group Limited, 2021 ONLAT 19-009258/AABS

Released: February 23, 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:

Jason Clements

Applicant

and

The Co-operators Group Limited

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Jason Clements, Applicant

Alysia Christiaen, Counsel

For the Respondent:

The Co-operators Group Limited, Representative

Daniel Himelfarb, Counsel

HEARD:

By way of written submissions

1Jason Clements witnessed the aftermath of an accident on October 11, 2016, involving his brother, partner and his three children. As a result, Jason Clements sought benefits from Co-operators, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ This preliminary issue hearing arises out of Co-operators claim that Jason Clements is barred from proceeding with his application pursuant to s. 32 and 34 of the Schedule.

2Co-operators submits that it was not notified of Jason Clements’s intention to claim accident benefits until an Application for Accident Benefits (OCF-1) was submitted on October 11, 2018, two years after the accident and beyond the timeline set out in s. 32. Co-operator’s argues that the onus is on Jason Clements to provide a reasonable explanation under s. 34 for failing to notify Co-operators of his intention to apply for benefits within the prescribed time period. Co-operators’ position is that as a result of Jason Clements’s failure to a) notify Co-operators of his intention to apply for benefits, and b) provide a reasonable explanation for failing to notify Co-operators within the prescribed timelines, Jason Clements is not entitled to claim accident benefits.

PRELIMINARY ISSUE

3The following preliminary issue was raised by Co-operators:

a. Is Jason Clements barred from proceeding with his application as being too late and without reasonable explanation pursuant to s. 32(5) and s. 34 of the Schedule?

FINDING

4I find that Jason Clements is statute-barred from proceeding with his claim for accident benefits as he failed to commence his application within seven days, and no reasonable explanation was given for the failure to comply with the time limit.

BACKGROUND

5On October 11, 2016, Jason Clements witnessed the aftermath of an accident involving his brother, partner and children. Jason Clements was not physically involved in the accident, he arrived on scene shortly after the accident occurred.

6Due to the significance of the injuries sustained by his family members, Jason Clements alleges that he suffered psychological impairments as a result of the accident. Jason Clements submitted an OCF-1 to Co-operators on October 11, 2018.

7On November 22, 2018, Co-operators notified Jason Clements that he was not eligible to receive accident benefits on the basis that he failed to provide a reasonable explanation for the two-year delay in submitting an OCF-1.

8On November 12, 2018 and April 13, 2020, Jason Clements was examined under oath. By way of letter Jason Clements submitted to Co-Operators dated April 30, 2019 and in his testimony at the examinations under oath (EUOs), Jason Clements’s “reasonable explanation” under s. 34 was that he did not know he could apply for accident benefits and did not know how to commence the application himself.

9At the April 13, 2020 EUO, Jason Clements provided two reasons that he did not apply for accident benefits sooner: a) because he did not know that he could apply for accident benefits himself; and, b) because once he learned that he could, he did not know how to do it.

10Co-operators submits that Jason Clements has now changed his argument to be: a) that he was never advised by Co-operators of his right to claim accident benefits; and, b) that he is sufficiently unsophisticated and was too involved in caring for his family post-accident that he did not consider looking into a claim for accident benefits for himself.

LAW

Duty to apply for accident benefits

11Under s. 32(1), an insured is required to notify an insurer of their intention to apply for accident benefits within seven days of the accident, or as soon as practicable after that day.

12Section 34 states that a person’s failure to comply with the time limit set out in this Part of the Schedule does not disentitle a person to a benefit if the person has a “reasonable explanation” for the failure.

13While I am not bound by it, I am persuaded by the Financial Services Commission of Ontario case Horvath and Allstate Insurance Company of Canada, (FSCO A02-000482), which I find instructive in this matter, as it identified the principles concerning the interpretation of a “reasonable explanation” for delay under s. 34. I will discuss the criteria later on.

Did Jason Clements have sufficient knowledge that he could claim accident benefits?

14I find the evidence supports that Jason Clements had sufficient knowledge very early on after the accident, in order to notify Co-operators of his intention to apply for accident benefits.

15At the November 20, 2018 EUO, Jason Clements testified that he first learned in 2017 that he could claim accident benefits for himself following a meeting with a lawyer from Diamond and Diamond. Jason Clements also testified that in the summer of 2017, he knew what a Disability Certificate was, as the lawyers at Diamond and Diamond explained the form to him. Jason Clements testified that when he spoke with the lawyers from Diamond and Diamond in 2017, he asked them to figure things out for his family and that “we need to get me going now”. The inference is that this was an indication of an intention of seeking a claim for himself.

16At the April 13, 2020 EUO, Jason Clements testified that he learned he could claim accident benefits for himself from a meeting with a lawyer at Siskinds, who represented his brother, who was involved in the accident. It was Jason Clements’s evidence that at the meeting with the Siskinds lawyer, he learned about and discussed making an application for accident benefits for himself.

17Jason Clements submits that he was unaware of the availability of accident benefits for himself until he retained counsel on September 28, 2018. Jason Clements’s position is that he did not make an application for accident benefits subsequent to his meeting with the Siskinds lawyer because he did not know how to do so and sought legal assistance.

18Jason Clements appears to give contradictory evidence. In the November 2018 EUO, Jason Clements testified that at his 2017 meeting with lawyers from Diamond and Diamond, he was made aware of the option to claim accident benefits. However, at the April 2020 EUO, he states that he was not aware that the option to claim accident benefits was available to him until 2018.

19I find that the evidence shows that between his dealings with the claims processes of his family members involved in the accident, Jason Clements had sufficient knowledge to have availed himself of his option to commence his own claim for accident benefits. Further, on at least two separate occasions, Jason Clements met with counsel familiar with the accident benefits claims process. Jason Clements testified that counsel provided him with information about the claims process and the relevant forms. Lastly, Jason Clements was in contact with Co-operators and at no time had inquired as to whether the option to claim accident benefits was available to him.

Did Jason Clements have the ability to apply for accident benefits?

20At the November 2018 EUO, Jason Clements testified that he was aware of what accident benefits were, following a discussion with Co-operators on October 17, 2016, less than a week after the accident. Jason Clements’s statement was that he was able to familiarize himself with what accident benefits were and what benefits were available for various types of assistance. Jason Clements also testified that in general, he was familiar with some of the forms required to apply for accident benefits based on his brother’s claim and from corresponding with representatives from Co-operators. On review, the evidence supports that Jason Clements had the ability to apply for accident benefits. On the evidence, I am not persuaded that Jason Clements was unable to apply for accident benefits.

21Jason Clements was very much involved in assisting his family members with the claims that arose as a result of the accident, handling various aspects of his brother’s and his partner’s accident benefits claims. Jason Clements submits that following the accident, he became responsible for the care of his brother, his partner and seven children. Jason Clements submits that as a result, and due to his alleged lack of sophistication, he was only able to apply for accident benefits after being provided with the necessary forms and direction provided by his counsel in September 2018.

22I disagree. Jason Clements’s claim that he was unaware of his option to file a claim for accident benefits until September 2018 is contradicted by the previously discussed evidence of his meeting with different counsel who are well-versed, specifically, in the field of accident benefits. I find it telling that after admitting he learned in October 2016 after speaking with Co-operators and again in 2017 in speaking with lawyers at Diamond and Diamond of his option to file a claim, he failed to do so at either time. Evidence of such a significant failure is fatal to Jason Clements’s claim of entitlement to accident benefits two years post-accident.

23There is no evidence that Jason Clements notified Co-operators at any time that he suffered an injury as a result of the accident, or that he was contemplating making a claim for accident benefits. Consequently, Co-operators is under no obligation to advise Jason Clements of his right to claim benefits. Further, Co-operators is not obligated to provide Jason Clements with forms in order to commence a claim for accident benefits.

Did Jason Clements provide a reasonable explanation for the delay?

24Co-operators relies on the six criteria to determine whether an applicant provided a reasonable explanation for delay under s. 34. In Horvath and Allstate Insurance², the arbitrator summarized the criteria for a reasonable explanation, stating:

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

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

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

d. The test of “reasonable explanation” is both a subjective and objective test that should take into account both personal characteristics and a “reasonable person” standard;

e. The lack of prejudice to the insurer does not make an explanation automatically reasonable; and

f. An assessment of reasonable 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.

25There are several reasons that I find Jason Clements did not provide a reasonable explanation for the delay. First, although he did not retain counsel until September 2018, Jason Clements had met with counsel on different occasions to discuss the accident, as it related to himself and his family. Therefore, I find that Jason Clements received sufficient information through his meetings with counsel as early as 2017, and with his involvement with the claims of his family, that he could have filed a claim within the prescribed timeline. Second, the onus lies solely on an insured to pursue any and all available remedies in the interest of commencing a potential claim for accident benefits. Whether or not an insured is represented does not absolve an insured of maintaining a participatory role in their own matter. Third, the process for claiming accident benefits does not start until notice is received from an insured, and until such time that a proper and timely notice is received, the insurer is under no obligation to an insured to provide accident benefits. Upon receipt of the notice of a claim, the insurer’s obligations are thus set out in s. 32 of the Schedule.

26Ignorance of the law is not a reasonable explanation given Jason Clements’s involvement with handling of the aspects of his family’s accident benefits claims. At minimum, this ability requires a higher level of sophistication than what Jason Clements claims to have regarding filing his own claim for accident benefits. Further, as the evidence from the EUOs’ demonstrates, Jason Clements knew as early as 2017 that he had the option of pursuing accident benefits, despite his contradictory claim that it was not until 2018 that he was aware that he could claim accident benefits for himself.

27I find that Jason Clements has not provided a reasonable explanation for the delay, given the fact that he could have and in fact did contact different lawyers in the two years post-accident about whether he could claim accident benefits. Also, given his involvement with the claims of his family members, Jason Clements could have contacted Co-operators and expressed an intention to apply for accident benefits, but failed to do so. Lastly, despite having discussed the accident benefits claims process with different lawyers, Jason Clements continued to delay commencing his own claim for several more months even after being told that he could apply for accident benefits himself.

Was Co-operators prejudiced by Jason Clements’s failure to notify it of his intention to apply for accident benefits?

28Co-operators submits that it has been prejudiced by Jason Clements’s delay. Its position is that the delay has prevented it from requesting relevant medical records and other information regarding any impact the accident had on Jason Clements Jason Clements submits that Co-operators’ denial of his claim and refusal to relieve him from the time limit amounts to hardship being brought on him. I agree with Co-operators that the prejudice against the insurer in this instance is greater than any alleged hardship suffered by Jason Clements

29Jason Clements claims that as a result of Co-operators denial of his claim, he has suffered a deterioration in his mental health. Jason Clements relies on the April 1, 2019 report of psychologist Dr. Iezzi to support his claim of psychological impairment. Dr. Iezzi notes that Jason Clements has not returned to work and is at high risk of never returning to work based on his psychological presentation. Dr. Iezzi noted that Jason Clements developed significant psychological consequences as a result of being at the scene of the accident. Dr. Iezzi opined that Jason Clements was completely disabled from engaging in his pre-accident employment or any employment consistent with his training, education or experience. Dr. Iezzi expressed concern regarding Jason Clements’s delusional thinking and substance use. Dr. Iezzi diagnosed Jason Clements with major depressive disorder, post-traumatic stress disorder, substance use and abuse disorder and early signs of paranoid delusions. Dr. Iezzi recommended treatment from a psychiatrist and ongoing psychological treatment.

30On the evidence, there are several reasons that support Co-Operators’ position that the extended period of delay caused significant prejudice to it. First, Jason Clements’s delay prevented Co-operators from having him assessed in a timely manner to determine entitlement to any benefits claimed, in the two years post-accident. Second, by the time Jason Clements applied for accident benefits, the possibility of determining the psychological impact of the accident versus impairments arising from subsequent events was nearly impossible. Lastly, the prejudice towards Co-operators outweighs any detriment to Jason Clements based on the length of the delay before Jason Clements provided his notice of a claim.

31Given the importance that timing plays in the determination of the cause, extent or exacerbation of accident-related impairments, any delay in making those determinations is prejudicial. Had Jason Clements applied within the prescribed seven days, Co-operators would be obligated to commence assessments and determinations regarding his claim, and possibly providing him with funding for approved treatment. As discussed earlier, the accident benefits claim process is initiated by an insured who intends to apply for benefits.

32It is not incumbent on Co-operators, without the benefit of a reasonable explanation, to accept a notice of intention to apply for accident benefits that is late. The timelines set out in the legislation are intended to provide the parties with parameters so that an insured can initiate their claims process in a timely manner, and the insurer can undertake to provide its determinations in a timely manner. Delays in the accident benefits claims process have consequences. Jason Clements’s delay, and failure to provide a reasonable explanation for the delay under s. 34, have resulted in his claim being denied.

Section 55

33Section 55(1)1 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.

34For the reasons above, I find that Jason Clements did not notify Co-operators of his intention to apply for benefits within the timelines prescribed by the Schedule and has not provided a reasonable excuse for the significant delay of two years. Accordingly, I find that he is statute-barred from proceeding with his application to the Tribunal.

CONCLUSION

35Based on my finding that Jason Clements failed to notify the insurer of his intention to apply for accident benefits within the prescribed timeline set out in the Schedule, and that there is no reasonable explanation given for the delay in notifying Co-operators under s. 34, Jason Clements is statute-barred by s. 55(1)1 and may not proceed with his claim for accident benefits.

Date of Issue: February 23, 2021