Kevin Canavan v. Unifund Assurance Company, 2021 CanLII 18912

19-011366/AABS

Released Date: 02/25/2021

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:

Kevin Canavan

Applicant

and

Unifund Assurance Company

Respondent

PRELIMINARY ISSUES DECISION AND ORDER

ADJUDICATOR: Monica Chakravarti

APPEARANCES:

For the Applicant: Ian Drong, Counsel

For the Respondent: Hyla Korn, Counsel

HEARD: Via Written Submissions

OVERVIEW

1The applicant. was involved in motor vehicle accident on January 27, 2014. The applicant states that as a result of this accident he sustained serious physical and psychological injuries.

2The applicant did not submit his application for accident benefits (OCF-1) to the respondent, Unifund, until more than 2 years had passed. The parties have differing views on the exact date of the submission of the OCF-1 however, both parties agree that it was more than 2 years following the accident.

3There is no dispute between the parties that the applicant submitted his OCF-1 outside of the prescribed timelines in section 32 of the Schedule¹. Instead, the preliminary issue before the Tribunal is whether he has a reasonable explanation for that delay that would permit him to proceed with his application for accident benefits.

4The parties also identified the issue of whether the applicant is statute barred under section 56 of the Schedule (the two-year limitation) because he failed to dispute his denial of his entitlement to accident benefits within two years of the denial.

5Unifund in its submission raised the issue of the Tribunal’s jurisdiction to make a determination on this preliminary issue hearing. Unifund submits that the appeal of the minor injury guidelines (MIG) cannot be a stand-alone issue for a determination before the Tribunal. Unifund further submits that the appeal pursuant to section 280(2) Insurance Act before this Tribunal has no underlying disputes relating to entitlement to a benefit and the only issue for appeal is the MIG. As there are no proper substantive issues in dispute in the appeal, the Tribunal therefore does not have jurisdiction to hear this preliminary issue and it has not jurisdiction to bar the appeal.

6The applicant submits that the issues in dispute for the preliminary hearing were agreed to at the case conference of March 19, 2020 and an Order on consent of the parties was then issued. Unifund never sought to vary the issues in dispute and did not raise the issue of jurisdiction at the case conference. The applicant submits that it is improper for Unifund to raise it now but nevertheless the applicant has provided submissions on the issue of jurisdiction of the Tribunal to hear this preliminary issue.

7I am guided by the case conference Order as amended that stipulates the issues that are in dispute in this preliminary hearing. Unifund could have included the issue of jurisdiction as a preliminary issue but did not do so. The time to vary the issues in dispute at the preliminary issue is not at the hearing but prior to the hearing so that both parties understand the case that has to be met and prepare accordingly. Therefore, the issues to be decided are as per the Amended Order of the Tribunal dated April 22, 2020.

ISSUES TO DECIDED

8The issues to be decided are:

a) Is the applicant statue barred means of section 32(5) and 55(1) of the Schedule and if so has the applicant provided a reasonable explanation of delay pursuant to section 34 of the Schedule, such that he ought to be entitled to proceed with his claim for accident benefits?

b) Is the applicant statue barred from bringing an application for entitlement to accident benefits because he failed to dispute it within two years from the date of denial pursuant to S. 56 of the Schedule?

RESULT

9The applicant is statute-barred from proceeding with his application to the Tribunal pursuant to section 55(1) of the Schedule because he did not comply with the time limits prescribed in s. 32 and he has not provided a reasonable excuse for the delay under s. 34 of the Schedule.

10A further finding of whether the applicant brought his dispute within two years from the date of the denial pursuant to section 56 of Schedule is not necessary because regardless of the outcome of the two year-limitation issue the applicant remains statute barred under section 55(1).

ANALYSIS

A) Section 32(5), and 34: Reasonable Explanation

11Section 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.

12The onus is on Unifund to show that the applicant did not provide the required documents within the timelines prescribed in the Schedule.

13The parties agreed that the applicant informed the insurer of the accident within seven days. The parties agree that timelines in s. 32(5) of the Schedule were not met by the applicant in that he did not complete and deliver the OCF-1 within the thirty days. Accordingly, the applicant raises the exception in section 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. The applicant has the onus to show the exception in section 34 should be granted.

14Both parties rely upon the following principals that were adopted by the Tribunal in K.H v Northbridge General Insurance Company² in interpreting what constitutes a “reasonable explanation” for the purposes of s. 34 of the Schedule:

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 for a “reasonable explanation” is both a subjective and objective test that should take account of 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 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.³

15Although I am not bound by other Tribunal adjudicators, I am persuaded by the principles enumerated in K.H v Northbridge and find this decision is of assistance in determining if the applicant has a reasonable explanation for his delay in applying for accident benefits.

16For the reasons that follow, I find that the applicant 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, the applicant is not entitled to accident benefits from Unifund.

i) The Position of the Parties

17The applicant submits that the delay in submitting the OCF-1 is reasonable in the circumstances. The explanation provided by the applicant is three-fold. First at the time of the accident he was under immense psychological and financial pressure because he was in an abusive relationship (he was being abused) and was the sole income earner for his family and therefore he chose to ignore his own well-being for the sacrifice of his family, ex-wife and relationship. Second the applicant was given the runaround by the insurance company and the lawyers he contacted thereby leaving him to navigate a complicated insurance system on his own when he was already in a fragile emotional state due to his relationship and due to the trauma and shock of the accident. The applicant in this state chose to hide (or as submitted by the applicant “shroud”) himself from the complicated insurance system. Third he did not know that he was severely injured until he attended physiotherapy. Once he attended physiotherapy and realized the extent of the damage, he then contacted a lawyer who finally agreed to assist him.

18Unifund submits that by the applicant’s own admission there was no issue and or injury that existed to prevent him from submitting his OCF-1 within the timelines prescribed under the Schedule. Unifund also submits that the applicant by his own admission prior to this hearing did not provide his emotional battered state as explanation for the delay because he was not in such a state at the time and/or following the Accident.

ii) OCF-1 and The Explanation of Delay

19On January 28, 2014 the applicant was sent an Application for Accident benefits⁴ by Unifund. On March 11, 2014 Unifund sent a letter to the applicant noting that an Application for Accident Benefits was sent on January 28, 2014 and still not sent back by the applicant. This letter also advised the applicant that the 30 days to submit the application had passed and that if he wishes to present a claims then he must provide the Application and if he does not then Unifund will assume that there is no claim.⁵ In this letter Unifund provided the applicant with a further 14 days to file the Application for Benefits.

20The applicant does not dispute that he received the application for Accident Benefits nor does he dispute that he received the letter of March 11, 2014.

21The applicant agrees that he did not provide the OCF-1 within the 30-day time limit prescribed by section 32(5). The applicant submits that the OCF-1 was provided to Unifund 2 ¼ years following the Accident on May 13, 2016. Unifund submits that the OCF-1 was provided on July 26, 2016. Without going into the merits of the actual date of receipt of the OCF-1 by Unifund, it is agreed that the OCF-1 was submitted two years beyond the statutory 30 days set out in the section 32(5).

22The applicant did not file an affidavit or provide viva voce evidence in this hearing. The applicant did provide a statement to Unifund on December 9, 2016⁶ (the “Statement”) and this is the evidence that the applicant is primarily relying upon. I am not persuaded that the statement of December 9, 2016 is the applicant’s best evidence. It is a statement taken by an adjusting company on behalf of Unifund and it is not a deep dive into the issues in dispute. It is however the only evidence directly from the applicant that is before the Tribunal.

23In the Statement, the applicant confirms that he spoke to his insurance company (Unifund) the day of or the day after the accident and reported that he had injuries from the accident. He also stated that he spoke with someone at Unifund the day after the accident about his injuries.

24The applicant states that he was getting the run around from the insurance companies and that he called up local lawyers and none of them wanted to help so he decided to go back to work. The applicant confirms in his Statement that he went back to work one week following the accident. The applicant now submits that he was getting the “run around” and this is a reason for the delay in submitting the OCF-1. I do not find that the explanation of the run around from the insurance companies to be a reasonable explanation for the 2 plus years of delay in the submitting of the OCF-1 as it is not supported by the evidence. The applicant in his Statement confirms that this period of run around lasted one week. He does not provide any information or evidence of further conversations with any insurance companies or lawyers. He confirms that he spoke with his insurance company (and presumably the third-party insurers) on multiple occasions within a one-week time and then decided to go back to work. Further, despite receiving a reminder letter of March 11, 2014 from Unifund the applicant provides no information or evidence as to any contact with Unifund or other insurance companies or lawyers other than the week of the accident.

25The applicant further submits that he was in an emotional distressed state such that he could not submit his OCF-1. The applicant provides little to no evidence of this other than to say he was in an abusive relationship. He does not provide any information or evidence as to how or why this prevented him from filling out the OCF-1 provided to him by Unifund on or about January 28, 2014 and submitting the same to Unifund. The applicant submits that in the case of Kuronen v Allstate Insurance Company of Canada⁷ the arbitrator allowed the applicant’s claim for accident benefits because the applicant was dealing with a number of issues including a separation from his wife.

26In Kuronen the arbitrator spent a considerable amount of time distilling the evidence regarding Mr. Kuronen’s state at the time and following the accident. This including noting that Mr. Kuronen was abusing alcohol and street drugs, he refused to follow doctor’s orders following major surgery (that included an open reduction and internal fixations) of his fractures, he was jailed and arrested for assault and then he lived on the street for a period of time. The separation of Mr. Kuronen from his spouse was a minor reason in that decision.

27Further, the fact that there was a separation from his wife is not enough to be a reasonable explanation for the delay by the applicant. No further details or evidence of the applicant’s relationship between him and his ex-wife were provided to the Tribunal and no information or evidence of how this relationship prevented him from submitting his OCF-1 in a timely manner was provided.

28Further in Kuronen, Mr. Kuronen also had no knowledge of his entitlement to accident benefits. In the present situation the applicant knew he was entitled to accident benefits or at least was able to claim something because the applicant was told this by Unifund in the letter of March 11, 2014. The applicant had the OCF-1 and did not file same.

29The applicant submits that he was under intense financial pressure as he was the sole earner in his household. I do not doubt the veracity of this statement, but I do not see how this provides an explanation for the delay as no further reason is provided. The applicant simply states that he was under intense pressure to return to work and as noted above he did return to work one week following the accident. The applicant submits that he continued working until April 2016 despite being in pain. I do not find that this explanation is reasonable to explain why the OCF-1 that was in the applicant’s possession was not provided in a timely manner.

30Even looking at the totality of the situation that the applicant submits he was in following the accident it is hard to reconcile the significant delay and inaction for over 2 years from receipt of the OCF-1 by the applicant to the submitting of same. The applicant has not provided any evidence to connect how his emotional and financial situation prevented him from submitting the OCF-1 that was provided to him right after the accident. The explanation that he chose to hide away from a complicated insurance system for over 2 years due to his emotional distress is hard to reconcile when the applicant was able to file a claim for insurance benefits through WSIB and was able to complete and file his claim for Short Term Disability (STD) that included a member statement completed by the applicant. The applicant filed the WSIB claim with that board and submitted his application for STD to his STD insurer during the same period of delay in submitting the OCF-1.

31Based on the reasons above and the evidence filed the applicant has not met his onus of providing a reasonable explanation for the delay in submitting his OCF-1.

iii) Balancing Prejudice and Hardship

32An 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.⁸

33The applicant submits that prejudice to the insurer, if any, is minimal for the following reasons:

a) Unifund was alerted immediately that the applicant was involved in a motor vehicle accident;

b) Unifund was provided a detailed in person statement answering all of the Unifund’s questions, early on after submitting the OCF-1;

c) Unifund has been diligently provided with updated medical information throughout the claims process since submitting the OCF-1; and

d) The applicant is not seeking any retroactive benefits for the period prior to submission of the OCF-1

34Unifund submits that it was prejudiced by the delay in that it was not afforded the opportunity to request contemporaneous medical examinations and records. Unifund further submits that it was denied the opportunity to know the effects of this accident on the applicant. This is particularly so, when the applicant sustained similar, if not identical, injuries at his workplace, approximately six months prior to submitting his Application for Accident Benefits.

35On the evidence I find it would not be equitable to relieve the applicant from the consequences of failing to comply with s. 32 of the Schedule for the reasons noted below.

36The applicant has not provided evidence of hardship to the level that would allow for relief from the forfeiture of benefits. The applicant by his own submission states that he is not seeking retroactive benefits and therefore it is implied he is seeking benefits from mid 2016 onwards. The applicant has provided no evidence of hardship from 2016 onwards that is related to this accident other than his Statement. The Statement is not persuasive as noted above because it provides only cursory information and is far from a deep dive into the merits of the applicant’s claim.

37Further the delay in this matter is not a minor one. The applicant submits that the delay in the present case of 2 ¼ years is well within the range of acceptable delays that have been found reasonable, particularly when factoring in the subjective issues faced by the present applicant. The applicant provides decisions from FSCO⁹ however none of them are analogous to the fact pattern in this matter and specifically none of them deal with the fact that the applicant was provided with the OCF-1 and did not fill it out and submit it until over two years had passed. I find that the delay in this matter is not a minor one of weeks or months but rather of years.

38Based on the delay in submitting the OCF-1 Unifund is prejudiced in that it did not have an opportunity to investigate, administer and assess the applicant’s claim contemporaneously when benefits may have been payable. This prejudice is amplified as a result of the claim to WSIB for a workplace accident that took place two years after the accident. This WSIB claim was denied and then in April of 2016 an application for STD citing the reason for inability to work is the subject motor vehicle accident. Unifund is now prejudiced due to its inability to assess the claim and injuries prior to these intervening events of the WSIB matter and the application for STD.

iv. Conclusion

39Under section 55(1) of the Schedule the applicant cannot apply to the Tribunal to resolve a dispute if he has not submitted his application or benefits within the times prescribed by the Schedule.

40For all of the reasons set out above, I find that the applicant is statute-barred from proceeding with his application to the Tribunal pursuant to section 55 of the Schedule because he did not comply with the time limits prescribed in s. 32 and he has not provided a reasonable excuse for the delay under s. 34 of the Schedule.

B) Submission Date of the OCF-1 and Limitation Period

41The parties disagree on the actual date that the OCF-1 was provided to Unifund by the applicant. The applicant submits that he provided the OCF-1 on May 13, 2016 Unifund submits the OCF-1 was provided on July 26, 2016.

42Given my decision that the applicant is barred from proceeding with his application, a finding on the date of the submission of the OCF-1 to Unifund is not necessary as it would not change the analysis above.

43Similarly, as the applicant is already barred from proceeding with his application to the Tribunal under section 55(1) there is no need for me to determine if the applicant is also barred under section 56 (two-year limitation period).

CONCLUSION AND ORDER

44I find the applicant is statute-barred from proceeding with his application at the Tribunal pursuant to s. 55 of the Schedule because he did not comply with the time limits to apply for accident benefits prescribed in s. 32 and, further, he has not provided a reasonable excuse for the delay under s. 34.

Released: February 25, 2021

__________________________

Monica Chakravarti

Adjudicator

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010, O.Reg 34/10.
2. 22019 CanLII 101613 (ON LAT) (“K.H. v Northbridge”).
3. 3Ibid. at para. 9.
4. 4Tab 1 Respondent’s Brief, Letter from Unifund dated March 11, 2014
5. 5Ibid.
6. 6Tab 2 of the Applicant’s Brief
7. 7Kuronen v Allstate Insurance Company of Canada, (OIC A-951897, December 29, 1995) (“Kuronen”)
8. 8K.H. v Northbridge
9. 9Deol v Liberty Mutual Insurance Company, (FSCO A99-000292, July 28, 2000) and Kuronen