Ilangeswaran v. Sonnet Insurance Company, 2021 CanLII 55200

Citation: Ilangeswaran v. Sonnet Insurance Company, 2021 ONLAT 19-013643/AABS

Release date: 06/24/2021

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:

Pavitha Ilangeswaran

Applicant

and

Sonnet Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Tania Lanteigne, Paralegal

For the Respondent:

Monika Bolejszo, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Pavitha Ilangeswaran, ("the Applicant"), claimed involvement in an accident on August 30, 2017 and sought benefits from the Respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the "Schedule").

2Sonnet Insurance Company, ("the Respondent"), submits that the Applicant failed to apply for accident benefits within the times prescribed by the Schedule. As a result, it refused to accept the Applicant's claim for benefits. The Applicant disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of this dispute.

ISSUE

3Is the Applicant barred from proceeding with her claim for accident benefits under section 55 of the Schedule because she failed to apply for benefits within the times prescribed by section 32 of the Schedule and failed to provide a reasonable explanation for the delay under section 34 of the Schedule?

4If the Applicant is successful on the first issue, I must determine the following issues:

1. Are the Applicant's injuries predominantly minor injuries as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (the "MIG") and the $3,500.00 limit in section18(1) of the Schedule?

2. Is the Applicant entitled to $3,264.65 for physiotherapy services at Whitby Wellness Centre recommended by Branko Milen, chiropractor, in a treatment plan (OCF-18) dated July 19, 2019, submitted August 3, 2019, denied by the Respondent on August 19, 2019?

3. Is the Applicant entitled to $3,126.84 for physiotherapy services at Whitby Wellness Centre recommended by Branko Milen in a treatment plan (OCF-18) dated November 22, 2019?

4. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

5Pursuant to section 55(1)1 of the Schedule, the Applicant is barred from proceeding with her claim for accident benefits as she failed to comply with the timelines prescribed by section 32 of the Schedule.

BACKGROUND

6The Applicant claims that she was rear-ended while waiting at a traffic light in downtown Toronto. She sought no medical attention at the scene of the accident and no accident report was filed. She contacted the Respondent two days later, on September 1, 2017, and reported the accident. Call log notes from that day indicate that the Applicant was unsure of the date of the accident. That call was disconnected for an unknown reason, before the parties could clarify any further details of the incident.

7Another call between the Applicant and Respondent occurred about two weeks later, on September 14, 2017. The Applicant reported only minor injuries at that time and an accident benefit file was opened. The Respondent sent the Applicant an accident benefits package the following day, on September 15, 2017. Critical to this hearing, the cover letter for the accident benefits package stated, "In order to apply for Accident Benefits, the Application (OCF-1) must be fully completed, signed and returned to me by October 16, 2017. If you don't return the Application package by October 16, 2017 it may delay or jeopardize your benefits."

8The Applicant returned the completed Accident Benefit Application on July 11, 2019. Two weeks later, Whitby Wellness Centre Ltd. submitted a treatment and assessment plan on her behalf, dated July 15, 2019. In response, on August 21, 2019, the Respondent requested that the Applicant participate in an insurer's examination to determine whether she sustained a minor injury. On September 11, 2019, the Respondent wrote to the Applicant again, this time it advised that upon further review, it was unclear whether the injuries sustained were as a result of the accident and whether an accident occurred. It requested additional information be submitted by September 30, 2019, pursuant to section 33 of the Schedule, and advised that an examination under oath ("EUO") would be scheduled. The insurer's examination was cancelled in favour of the EUO.

9The Applicant participated in the EUO on November 11, 2019. Following the EUO, the Respondent determined that the Applicant provided no reasonable excuse as to why her Application was submitted late, that there was no documentation to substantiate that an accident occurred on August 20, 2017, and that she misrepresented her address when she applied for her auto policy. The Respondent relayed this to the Applicant by letter dated December 2, 2019.

ANALYSIS

10Pursuant to section 32(1) of the Schedule, an insured who intends to apply for statutory accident benefits, shall notify the Respondent no later than the seventh day following, or as soon as practicable after.

Notice of an Accident

11I find that the Applicant notified the Respondent of her accident within seven days. The call logged by the Respondent on September 1, 2017 confirms that the Applicant satisfied section 32(1). Although it was disconnected, the Respondent was made aware of an accident as a result of that call. However, the Respondent had not collected the information required to initiate a claim on behalf of the Applicant. The Respondent collected the required information on the following call, two weeks later, and sent the Applicant an accident benefits package the day after, on September 15, 2017. Although best practices dictate that the Respondent ought to have called the Applicant back immediately after the first call was disconnected, the Schedule provides no obligation for the Respondent to do so.

Response to Notice of an Accident

12In the responding accident benefit package, the Respondent is required to give the Applicant the following, pursuant to section 32(2) of the Schedule:

1. The appropriate application forms;

2. A written explanation of the benefits available;

3. Information to assist the Applicant in applying for benefits; and

4. Information on the election of a specified benefit.

13The Applicant submits that the Respondent failed to provide her with the details of her accident benefit coverage and timelines, contrary to section 32(2) of the Schedule. The Respondent disagrees and submits that the Applicant was made aware of the consequences of a delay. I agree with the Respondent.

14The Respondent's letter dated September 15, 2017 satisfies the requirements in section 32(2) of the Schedule. It provides a clear deadline of October 15, 2017 to return the Application and advises that the Applicant's benefits would be delayed or jeopardized if she fails to meet the deadline. The Respondent further advises the Applicant that her file will be closed should she not return the Application within 30 days. The letter includes the Application and associated forms and provides an explanation of the different benefits available. The letter also advises the Applicant that a disability certificate is required if she intends to apply for a specified benefit and of the need to elect only one specified benefit if she qualifies for more than one of them. In addition, and amongst other things, the letter advises the Applicant about the registration requirements for health care providers and the process for seeking reimbursement for treatment from unlicensed providers. Despite her allegations, the Applicant provides no explanation as to what information is excluded from the letter which would render it non-compliant with section 32(2) of the Schedule.

Application for Accident Benefits

15Pursuant to section 32(5), the Applicant shall submit the signed Application to the Respondent within 30 days of receipt of the forms. If the Application is incomplete, the Respondent must notify the Applicant within 10 business days.

16The Applicant failed to comply with section 32(5) of the Schedule. It is uncontested that the Applicant received the Application and returned them more than a year and a half later.

Reasonable Explanation

17Pursuant to section 34 of the Schedule, the Applicant may not be disentitled for failing to comply with section 32 if she provides a reasonable explanation for the delay. The interpretation of "reasonable explanation" is guided by Horvath and Allstate Insurance Company of Canada¹, more recently reiterated in K.H. vs Northbridge.² The guiding principles are:

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 of "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.

18The Applicant submits that her injuries were latent and developed as time passed following the accident. The Respondent submits that the Applicant has offered no evidence to explain the delay. It submits that it has been prejudiced by its inability to request contemporaneous medical documentation and to investigate and assess the Applicant's claim. It further submits that the Applicant was made aware of the consequences of a delay in applying for benefits and was made aware that it sought a reasonable explanation for the delay.

19I agree with the Respondent and find that the Applicant has failed to provide a reasonable explanation for her untimely application for accident benefits.

20The Applicant's explanation is contradicted by her answers at the EUO dated November 11, 2019. For the purpose of this hearing, the Applicant claims that her injuries developed over time. However, during the EUO she answered that she experienced "a little" back pain immediately after the accident and again a few months later and neglected it. She further characterized the pain as "extreme" by December 2018. Yet, she never applied for accident benefits until more than six months later, in July 2019.

21The Applicant's explanation does not exempt her from the timelines outlined in the Schedule. The Applicant received the accident benefit package and was made aware of her obligation to comply with the timelines provided by the Schedule. The Applicant is not exempt from the timelines provided by section 32 due to the latent onset of injuries, which is contracted by the Applicant's EUO remarks. Further, the Applicant provided no reasonable explanation as to why she waited more than six months to apply for benefits after experiencing "extreme" back pain.

22The Applicant's case is distinguishable from 17-004690 v. Unifund Assurance Company ("Unifund").³ The cases are distinguishable because in Unifund, the Respondent never advised the Applicant of the timeliness issue prior to the Tribunal process. In the case before me, the Tribunal process was started following the Respondent's decision to deny benefits due to delay.

23To me, this matter is more analogous with Canavan v. Unifund Assurance Company,⁴ as submitted by the Respondent. There, the Applicant received the accident benefit package but failed to submit the Application, claiming that an abusive personal relationship, miscommunication with his insurer, and the delayed onset of injuries prevented him from making an application. There, it was found that despite the reported issues, the Applicant provided no evidence to connect how his situation prevented him from making an application. When evaluating the balance of prejudice to the Respondent and the hardship of the Applicant, it was determined that the Applicant had not provided evidence of hardship to the level that would allow for relief from the forfeiture of benefits. It was determined that the delay of more than two years was significant and prejudiced the Respondent by not allowing it to have an opportunity to investigate, administer, and assess the claims contemporaneously when the benefits may have been payable. In the Applicant's case before me, she waited more than a year and a half to return the Application and is unable to explain why the latent development of her injuries, which is not supported by the evidence, prevented her from returning her Application within the prescribed timelines.

24Pursuant to section 55(1)2 of the Schedule, the Applicant shall not apply to the Tribunal as a result of her failure to adhere to the timelines provided by the Schedule. Considering my analysis above, I find no compelling reason to evoke section 55(2) of the Schedule and use my discretion and permit the Applicant to file her Appeal.

SUBSTANTIVE ISSUES

25The Applicant is not entitled to accident benefits because she failed to comply with the timelines to apply for statutory accident benefits and did not provide a reasonable explanation under section 34 of the Schedule. She is barred from appealing to the Tribunal pursuant to section 55(1)2 and provides no compelling reason why I should use my discretionary power to permit her Appeal pursuant to section 55(2). Thus, an analysis of the characterization of the Applicant's injuries and her entitlement to the disputed treatment and assessment plans is unnecessary.

CONCLUSION AND ORDER

26The Applicant failed to submit her Application for accident benefits in accordance with the timelines outlined in the Schedule. She provides no reasonable excuse for her delayed Application.

27Pursuant to section 55(1)1 of the Schedule, the Applicant shall not apply to the Tribunal because she failed to submit her Application within the times prescribed by section 32(5) of the Schedule.

28The Appeal is dismissed.

Date of Issue: June 24, 2021

_______________________

Brian Norris, Adjudicator

Footnotes

1. 1FSCO A02-000482, June 9, 2003)
2. 22019 CanLII 101613 (ON LAT)
3. 32018 CanLII 81916 (ON LAT)
4. 42021 CanLII 18912 (ONLAT)