Stajduhar v. Unica Insurance Inc., 2021 CanLII 97098

Citation: Stajduhar v. Unica Insurance Inc., 2021 ONLAT 20-007338/AABS

Release date: 10/07/2021

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:

Nikola Stajduhar

Applicant

and

Unica Insurance Inc.

Respondent

DECISION

ADJUDICATOR:

Robert Watt

APPEARANCES:

For the Applicant:

Kimberley Orr, Counsel

For the Respondent:

Rebecca Brown Greer, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on December 11, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES IN DISPUTE

2Is the applicant barred from proceeding with his claim for accident benefits as he failed to submit an application for accident benefits within the times prescribed by the Schedule?

RESULT

3The applicant is barred from proceeding with his claim for accident benefits as he failed to submit an application for accident benefits within the times prescribed by the Schedule?

BACKGROUND

4The applicant telephoned the respondent on December 20, 2017 to discuss the accident benefits framework. He was advised to speak with his family doctor for treatment recommendations and then contact the respondent.¹ An accident benefits package was sent to the applicant by letter on December 20, 2017.² The letter indicated that the applicant had to submit his application within 30 days of receiving the package and outlined the penalties if the application was not sent in time.

5The respondent wrote the applicant again on January 26, 2018 requesting the completed OCF-1 and for the applicant to submit it within the next 10 days, otherwise the respondent would close its file. The applicant did not submit the forms and his file was closed.³

6The applicant submitted an OCF-1 and OCF-10 dated December 5, 2019, on December 9, 2019 to the respondent.⁴ The respondent wrote the applicant on December 17, 2019 requesting a written explanation by January 6, 2020 for the late filing of his application.⁵ The applicant failed to provide an answer, so the respondent sent a second letter to the applicant on January 7, 2020 requesting an examination under oath.⁶

7On January 23, 2020, the applicant attended an examination under oath and admitted the following:

a. He confirmed speaking to a respondent representative in December 2017;

b. He received the letters from the respondent but never opened them;

c. He saw a physiotherapist in 2018 who suggested he submit a claim;

d. He completed applications for the Ontario Disability Support Program and the Canada Pension Plan Disability on his own.

e. He submitted his OCF-1 in December 2019 after he was told by someone that he had two years to start a lawsuit;

f. He confirmed that he took no steps to clarify any questions he may have had about a claim and/or his responsibilities before December 2019.⁷

8In December 2017, the applicant was negotiating a settlement with the respondent’s adjuster on his property claim matter.

ANALYSIS

9I find that the applicant is statute-barred from proceeding with his claim for accident benefits as he failed to submit an application for accident benefits within the times prescribed by the Schedule and gave no reasonable explanation for the delay.

10Section 32(5) of the Schedule requires a completed and signed application for benefits to be submitted to the respondent within 30 days after receiving the application forms. Section 34 of the Schedule indicates that a person’s failure to comply with a time limit does not entitle the person to a benefit if the person has a reasonable explanation. Section 55(1)1 provides that an insured person shall not apply to the Tribunal if they have not submitted an application for benefits with the times prescribed.

11The test for interpreting whether the applicant has a reasonable explanation is as follows:

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

d. Ignorance of the law alone is not a reasonable explanation;

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

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.⁸

12The applicant’s position is that he has met all of the criteria required for a reasonable explanation. The applicant submits that he was having a difficult time with the adjuster who was administering his property damage file. The applicant claimed that, because of his property damage claim, he had a hostile relationship with the respondent which resulted in him not submitting his benefit claims on time. He also did not understand or was fully informed of what accident benefits were, or why he needed to apply for them. The applicant claims that he was not aware of a deadline for his application and expected that his doctors would figure out where the funding for treatment would come from. The applicant claims that the respondent is not prejudiced by the delay as all of his records are available.

13The respondent’s position is that there is no evidence that the applicant had a difficult time on his property claim settlement which was resolved within 48 hours of the first offer being made. At his examination for discovery, the applicant could not explain why the experience with the settlement of his property claim prevented him from commencing a claim for accident benefits.⁹ The respondent argues that any ordinary person would have processed both claims even if there was a problem with one claim, and therefore the respondent’s explanation is not reasonable.

14The respondent indicates that the applicant spoke to the adjuster on December 20, 2017 (during the 48 hours that he was negotiating the property damage settlement), and that the adjuster explained the forms and the medical and rehabilitation benefits available to the applicant. The applicant told the adjuster that he would call the adjuster back once he spoke to his family doctor. The applicant never called the adjuster back. The applicant admitted that he was told by his physiotherapist that he might have funding and should apply to his insurance company. The applicant admitted at his examination under oath that he ignored this advice.

15The respondent also relies on the fact that the adjuster explained to the applicant the necessity of getting the documentation back to the respondent. The letters sent to the applicant with the benefit package on December 20, 2018 set out the 30-day period. The letter sent to the applicant on January 26, 2019 also provided an opportunity for the applicant to get the benefit package back to the respondent within another time frame, which the applicant ignored. The respondent also argues that the applicant’s delay prevented the respondent from investigating and administering his claim contemporaneously when benefits may have been payable and, therefore, the respondent has been prejudiced.

16I accept the respondent’s position over the applicant’s position. The evidence is clear that the applicant ignored the advice of the adjuster and the physiotherapist and took no steps to investigate his rights and responsibilities in getting the documentation back to the respondent within the proper timeframe. The applicant admitted that he did not open the correspondence from the respondent. I do not find the applicant’s main reason for not proceeding with his claim, being his “traumatic experience” with the adjuster on his property claim, to be credible. That claim was settled within two days and would not in any event prevent him from opening his mail and sending in the requisite documentation for his claim.

17The onus is on the applicant to pursue all remedies in commencing an accident benefit claim.¹⁰ The applicant’s OCF-1 was submitted 1 year and 11 months after he was deemed to have received the package. This Tribunal has held that delays in the accident benefits process have consequences, as an insurer will be unable to respond to a claim in a timely manner where there is a later application.¹¹

18I find that the applicant has not provided a reasonable explanation under s. 34 as to why he failed to comply with the time limits for submitting his application for accident benefits under s. 32. Accordingly, he is statute-barred from proceeding with his claim under s. 55(1)1 of the Schedule.

CONCLUSION

19For the reasons set out above, I find that the applicant is statue-barred under s. 55 from proceeding with his application.

Footnotes

1. 1Adjuster Log note Tab 2 p36-39
2. 2Letter from the Respondent dated December 17, 2019 Tab 3
3. 3Letter from the Respondent to Applicant dated January 26, 2018 Tab 4
4. 4Letter from Applicant to dated December 9, 2019 Tab 5
5. 5Letter from the Respondent dated December 17, 2019 Tab 6
6. 6Letter from Respondent dated January 7, 2020 Tab 7
7. 7Transcript of the Applicant’s Examination under Oath dated January 23, 2020, Questions 133-17-,138-142
8. 8Horvath v. Allstate Insurance Company of Canada [2003] O.F.S.C.I. D. No. 92; J.V. v. Unifund Assurance Company, 2019 Carswell Ont. 22174 (ON LAT).
9. 9Examination Under Oath questions 64-70, 132
10. 10Clements v. The Co-operators Group Limited (LAT) 19-009258/AABS February 23, 2021
11. 11Ibid 10 p30-32