Citation: Basuric v. Dominion of Canada General Insurance Company (Travelers), 2021 ONLAT 20-007187/AABS-PI

Release date: 06/11/2021

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:

Sladana Basuric

Applicant

and

Dominion of Canada General Insurance Company (Travelers)

Respondent

ADJUDICATOR:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Yu Jiang, Paralegal

For the Respondent:

Jane Cvijan, Counsel

HEARD:

By way of written submissions

1On January 3, 2015, the daughter of the applicant Sladana Basuric sustained catastrophic injuries in an automobile accident. For a little over three years after the accident, the applicant provided daily attendant care to her daughter. On April 25, 2018, more than three years after the accident, the applicant sought benefits on her own behalf from the respondent, Dominion of Canada General Insurance Company (Travelers), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the "Schedule"). A dispute arose over the applicant's claims and she applied to the Licence Appeal Tribunal (the "Tribunal") for resolution of the dispute.

2The respondent raises a preliminary issue that would dispose of the application in its entirety.

PRELIMINARY ISSUE

3The preliminary issue to be decided is this:

a. Is the applicant's claim for accident benefits barred pursuant to s. 55(1)1 of the Schedule because she failed to notify the insurer of the circumstances giving rise to a claim for a benefit within the timelines prescribed by the Schedule?

RESULT

4The applicant's explanation for failing to apply for accident benefits within the timelines prescribed by the Schedule is unreasonable. Her application is barred from proceeding under s. 55(1)1 of the Schedule and is accordingly dismissed.

ANALYSIS

Agreed facts and law

5The parties agree that under 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 accident, or as soon as practicable after that day.

6There is no dispute between the parties that the applicant failed to give notice of her intention to apply for accident benefits from the respondent until April 25, 2018: three years, three months, and 23 days after the accident in which her daughter was catastrophically injured.

7The 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. The dispute centres on whether the applicant's explanation for her delay in applying for benefits is a reasonable one.

The applicant has not established a reasonable explanation for the delay

8In a sworn statement dated May 23, 2018, the applicant explained her delay in applying for benefits as follows:

"A claim by me specifically wasn't put in more recently than now because at the time I didn't know I was eligible for any sort of benefits as a result of all this. It wasn't until my daughter's injuries were considered catastrophic that I found out I may be eligible for benefits as well. This is why my claim is so late."

9In submissions, the applicant advanced two additional reasons for the delay:

a. she was her daughter's main caregiver until March 2018 and was unable to consider whether she was eligible for benefits during this time; and

b. she believed her psychological impairments would improve, but they got worse, and it was only then she discovered their severity.

10The respondent submits that it is improper for the applicant to raise new explanations for the delay in submissions. It submits the Tribunal should only consider the reason the applicant gave in her sworn statement, namely that she was ignorant of the extent of her coverage. Relying on this Tribunal's decision in J.V. v Unifund Assurance Company, the respondent submits that ignorance of the law alone is no excuse.²

11The distinction between submissions and evidence is not overly relevant in these circumstances because, in my view, none of the reasons the applicant has provided, either in her sworn statement or in her submissions, satisfy the test for a reasonable explanation. The applicant's sworn statement was given shortly after she applied for benefits and I attach weight to the reasons the applicant offers in it. The submissions the applicant now advances are not evidence. However, they do assist me in evaluating the evidence, and in determining whether the applicant has met her onus in establishing a reasonable explanation for the delay.

12Both parties refer me to the decision of the Financial Services Commission of Ontario in Horvath and Allstate Insurance Company of Canada, (FSCO A02-000482), 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:

An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.
The onus is on the insured person to establish a "reasonable explanation."
Ignorance of the law alone is not a "reasonable explanation."
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.
The lack of prejudice to the insurer does not make an explanation automatically reasonable.
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 Horvath, I find the applicant's evidence satisfies the relatively low threshold of being credible and worthy of belief. The onus rests with the applicant to show that her explanation is reasonable. The applicant's evidence is that she did not know she was eligible for benefits for the time period in question. Her submissions elaborate on this point, adding that she was unable to consider whether she might be eligible during this time because she was caring for her daughter. She also submits that she thought her psychological condition would improve on its own. To summarize, the explanation the applicant has provided is that she was ignorant of the extent of her coverage; unable to inquire about it; and did not think she needed treatment.

14The applicant's lack of awareness as to what was covered by her automobile insurance policy is not a reasonable explanation for her delay in seeking benefits. Her certificate of insurance cites the definition of an "insured person" set out in the Schedule and the specific provision extending coverage to:

a. a named insured;

b. specified driver;

c. spouse; or

d. dependent...

...who is not involved in an accident who suffers a psychological or mental injury from an accident that results in a physical injury to their child. The applicant, a named insured whose child was injured in an accident, meets this definition.

15To be clear, I accept the applicant's statement that she was unaware of her eligibility for benefits as credible and worthy of belief. But a reasonable explanation must be assessed on a subjective-objective standard that considers an individual's self-reported circumstances against what a reasonable person would do if faced with those circumstances. The applicant's explanation is sincere, but it fails the test for reasonableness.

16I appreciate the applicant's submissions as to the stress she experienced in caring for her daughter. However, applying the subjective-objective standard called for in Horvath, I do not accept that this stress would account for a more than three-year delay in inquiring about the applicant's own accident benefit coverage.

17In her statement, the applicant described having to manage all aspects of housework and meal preparation in addition to providing several hours of attendant care to her daughter each day. She discusses managing her daughter's prescriptions as one of her significant tasks. The daily responsibilities described by the applicant demonstrate a level of functioning that is simply incompatible with a failure to inquire with the respondent about possible coverage as soon as was practicable after the accident.

18The applicant also coordinated two extended vacations to Bosnia for her and her daughter during this period. International travel with a vulnerable dependant is an activity requiring a level of function that is simply inconsistent with the complete incapacity to inquire about insurance coverage asserted by the applicant.

19The third reason given by the applicant, that she did not think she needed benefits as her psychological condition would improve on its own, conflicts with the notion that she was simply unaware of her eligibility for benefits. This submission suggests that the applicant recognized she had psychological impairments but decided not to act in pursuing treatment, believing they would get better on their own. Deciding not to pursue benefits is different from simply being unaware that they exist.

20For the purposes of this analysis, it is not necessary for me to consider the whether the applicant's claims of psychological impairment are supported by the medical evidence. Even assuming the applicant had worsening psychological impairments, it does not stand to reason that she was less able to inquire about the extent of her coverage early in the post-accident period when her impairments were reportedly less severe.

21I find that the applicant's delay in applying for benefits has resulted in prejudice to the respondent. The respondent submits that the purpose of the timeline set out in s. 32(1) of the Schedule is to allow the insurer to conduct contemporaneous assessments, gather medical records, and conduct surveillance if necessary. In this case, the respondent submits, potentially relevant records exist in Canada and Bosnia, and the respondent faces hurdles in attempting to gain access to those records years after they were generated. I agree.

22In the final analysis, the applicant's explanation for the delay is unreasonable. Because the respondent's ability to gather contemporaneous medical records and assessments has been substantially interfered with, the respondent faces considerable prejudice in responding to the claims against it. The applicant has not established hardship capable of outweighing that prejudice. She has not shown that the Tribunal should relieve against the consequences of her failure to act.

The doctrine of estoppel does not apply

23The applicant submits that the Tribunal should invoke the equitable doctrine of estoppel to bar the respondent from raising a s. 55 defence because it took steps to adjust her file before raising this preliminary issue in this proceeding. The respondent submits the Tribunal lacks jurisdiction to grant equitable relief, relying on the Court of Appeal for Alberta's ruling in Alberta v. McGeady and this Tribunal's decision in Y.D. v. Aviva Insurance Canada.⁴

24The respondent is correct. This Tribunal derives its remedial authority from statute. I see no authority in the Insurance Act, nor has the applicant directed me to any other statutory authority, granting the Tribunal the power to bar the respondent from raising this defence. On the contrary, s. 55 of the Schedule clearly precludes an applicant from proceeding before the Tribunal in circumstances such as these. The language of the provision is mandatory and unambiguous. An insurer's good faith adjustment of a claim does not detract from its ability to raise a defence under the section at this stage of a proceeding. The provisions of the Schedule, specifically s. 34, provide for fair consideration of explanations for delay. Absolute adherence to timelines is not required under the Schedule, but reasonable conduct on the part of the insured is. Fairness to all parties and the need for certainty and finality of outcomes hang in the balance.

25The applicant has not met her onus under s. 34 of the Schedule, and as such, her application cannot proceed.

CONCLUSION

26The applicant has not provided a reasonable explanation for failing to apply for accident benefits within the time limits prescribed by the Schedule. Her application is barred by s. 55(1)1 of the Schedule and is accordingly dismissed.

Date of Issue: June 11, 2021

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