Citation: Raveendran v. Coseco Insurance Company, 2023 ONLAT 21-004205/AABS-PI -A
Licence Appeal Tribunal File Number: 21-004205/AABS
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:
Karthigan Raveendran
Applicant
and
Coseco Insurance Company
Respondent
AMENDED PRELIMINARY DECISION AND ORDER
VICE-CHAIR ADJUDICATOR:
Beverly Brooks Tavlin Kaur
APPEARANCES:
For the Applicant:
Mike Pryce, Paralegal
For the Respondent:
Melanie Malach, Counsel
Held by Teleconference:
HEARD:
October 18, 2023
By way of written submissions
OVERVIEW
[ 1 ] Karthigan Raveendran, the applicant, was involved in an automobile accident on September 21, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Coseco Insurance Company, and applied to the Licence Appeal Tribunal-Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
[ 2 ] The preliminary issue to be decided is whether the applicant is precluded from proceeding with this dispute before the Tribunal as a reasonable explanation for the delay in reporting any injuries has not been received in accordance with s. 34 of the Schedule?
RESULT
[ 3 ] The applicant is barred from proceeding with his application.
ANALYSIS
Background
[ 4 ] The applicant was involved in an accident on September 21, 2018. He first notified the respondent of his intention to seek accident benefits by submitting an OCF-1 on March 1, 2019.
Parties’ positions
[ 5 ] The respondent submits that the applicant has not provided a reasonable explanation for his failure to adhere with the timeline prescribed in section 32(1) and 32(5) of the Schedule. Specifically, he has not provided a reasonable explanation for failing to notify the respondent that he suffered any injuries in the subject accident or that he intended to apply for accident benefits. Further, he submitted his OCF-1 to the respondent more than five months after the accident.
[ 6 ] The applicant did not provide submissions or evidence regarding the preliminary issue. Rather, his submissions were in relation to the substantive issues such as the Minor Injury Guideline and entitlement to the treatment plans for physiotherapy.
The Law
[ 7 ] Pursuant to section 32(1) of the Schedule, a person who intends to apply for statutory accident benefits shall notify the insurer of their intention no later than the seventh day after the circumstances that give rise to the entitlement to the benefit, or as soon as practicable after.
[ 8 ] Once an insurer receives notice of an applicant’s intention to apply for statutory accident benefits, the insurer must provide the applicant with the appropriate OCF-1 forms, a written explanation of the benefits available, information to assist the person in applying for benefits, and information on the election relating to the specified benefits, as required by section 32(2). Pursuant to section 32(5) of the Schedule, the applicant must then submit a completed and signed application for benefits to the respondent within 30 days after receiving the forms.
[ 9 ] I note that section 34 of the Schedule states that “a person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.” The onus is on the applicant to establish a reasonable explanation for the delay. The interpretation of “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada, FSCO A02-000482, June 9, 2003, and was more recently reiterated in K.H. vs Northbridge, 2019 CanLII 101613 (ON LAT). The guiding principles are summarized as follows:
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 “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.
Did the applicant fail to notify the insurer of his intention no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable?
[ 10 ] Based on the evidence before me, it is clear that the applicant did not notify the respondent of his intention to apply for one or more benefits within the timeframe set out in section 32(1) of the Schedule. On September 25, 2018, the applicant contacted Darryl Maharaj, adjuster to report that he was in an accident. However, it was reported that there were no injuries. On March 1, 2019, the respondent was notified of the applicant’s intention to apply for accident benefits when they received an OCF-1. On March 12, 2019, the respondent wrote to the applicant and explained that they require an explanation for the failure to comply with the time limit to notify them about his intention to apply for accident benefits.
[ 11 ] On April 12, 2019, Mohammed Ali, accident benefits clerk at Grillo Barristers, wrote to the respondent. The letter states that, “the client stated that he was under the assumption that the second accident was already reported. He advised that the second claim was opened because the insurance company was already informed of his injuries from the first date of loss.” On April 25, 2019, the respondent advised the applicant that they did not believe that they have been provided with a reasonable explanation as to why the injuries sustained in the September 21, 2018 were not reported. As such, the applicant is disentitled to the benefits.
[ 12 ] I do not find the explanation provided by Grillo Barristers worthy of belief. While I acknowledge that the applicant reported the accident within seven days, he did not advise the respondent of his intention to seek accident benefits until March 1, 2019. Based on the adjuster’s log notes, the applicant did not report any injuries, and nor did he did advise the respondent that he was seeking accident benefits. In fact, the applicant had multiple communications with the respondent following the second accident and no mention was made of any injuries or his intention to seek accident benefits. Rather, the communications were in relation to a property damage claim. Moreover, the applicant was involved in an accident two weeks before and immediately applied for benefits. In my view, he was familiar with the process.
[ 13 ] Without an explanation that is credible or worthy of belief there is no need to assess the reasonableness of the explanation. In other words, the first principle is a threshold that must be met in order to engage the other principles. The onus is on the applicant to establish a reasonable explanation. As the applicant has failed to file submissions and evidence, I am not persuaded that that there is a reasonable explanation for the delay in notifying the respondent.
CONCLUSION AND ORDER
[ 14 ] The applicant failed to notify the respondent of his intention to apply for benefits no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day. He has not provided a reasonable explanation for the delay.
[ 15 ] The application is dismissed.
Released: November 17, 2023
Tavlin Kaur
Adjudicator