Licence Appeal Tribunal File Number: 22-013894/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:
Abdullkadir Mohamoud
Applicant
and
TD General Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Ilan Liebner, Counsel
For the Respondent:
Sean Cheskes, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Abdullkadir Mohamoud, the applicant, was involved in an automobile accident on October 22, 2019, 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, TD General Insurance Company (“TD”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES IN DISPUTE
2The preliminary issues in dispute are as follows:
Is the applicant’s claim for accident benefits barred pursuant to section 55(1) of the Schedule because he failed to notify the insurer of the circumstances giving rise to a claim for benefits within the timelines prescribe by section 32(1) of the Schedule with no reasonable explanation?
Is the applicant barred from proceeding with their claim for benefits as they failed to submit the application for benefits (OCF-1) within the time prescribed in the Schedule?
RESULT
3The respondent’s motion is granted.
4The applicant is not statute-barred from proceeding with his application.
ANALYSIS
Notice of Motion
5The parties filed their submissions with the Tribunal regarding the preliminary issue. Upon review of the submissions, it appeared that both parties made submissions regarding section 32(1) of the Schedule. The Tribunal sought clarification from the parties regarding whether a determination was required on this point. The respondent confirmed that a determination was required. However, the applicant disagreed. The parties were advised that in order to add the additional preliminary issue in dispute to the written hearing, they would need to file a motion.
6On October 16, 2023, the respondent filed a motion with the Tribunal to add the following issue in dispute:
Is the applicant’s claim for accident benefits barred pursuant to section 55(1) of the Schedule because he failed to notify the insurer of the circumstances giving rise to a claim for benefits within the timelines prescribe by section 32(1) of the Schedule with no reasonable explanation?
Parties’ positions
7The respondent submits that it requires a determination on section 32(1). The respondent asserts that both parties anticipated that section 32(1) of the Schedule played a role in the preliminary issue hearing as evidenced by the fact that both parties made submissions with respect to same in their preliminary issue hearing submissions. By not allowing a determination on section 32(1), the Tribunal will be ignoring a fundamentally important question that needs to be answered in this case. It was only through inadvertence that a determination on section 32(1) was not added as a preliminary issue in dispute. The respondent always required and intended to discuss section 32(1) and its application to the case as can be seen through its submissions.
8The applicant submits that he does not consent to add the preliminary issue. The applicant’s position is that the only preliminary issue to be decided is set out in the Case Conference Report and Order dated August 15, 2023. The applicant submits that it would be unfair to allow the respondent to add this issue because it would procedurally and substantively prejudice his right to a fair and open process. As such, the applicant submits that the respondent’s motion should not be granted. The applicant relies on Pereira vs. Aviva General Insurance Company, 2020 CanLII 94782 (ON LAT) and Campbell v. Security National Insurance Company, 2022 CanLII 98045 (ON LAT) in support of his position.
9In my view, the applicant would not be prejudiced by the addition of this issue in dispute. I have reviewed the parties’ submissions and note that both parties have made submissions in relation to section 32(1). It is clear that the respondent took the position that this was an issue in dispute and the applicant responded accordingly. While the respondent should have filed a motion immediately to add this as an issue in dispute, the applicant should have also brought a motion to strike the submissions regarding section 32(1) if he was of the view that this issue was not properly raised or agreed to. The applicant did not raise any concerns until the parties were asked for clarification regarding this issue.
10I am not persuaded by the case law that the applicant is relying on because I find that each is distinguishable from the facts before me. In Pereira, the applicant added a number of new issues in its initial submissions and then filed a Notice of Motion seeking to add 15 additional issues and amendments to the written hearing. In Campbell, the respondent became aware of the additional issue when the applicant’s written hearing submissions were served. In both cases, the Tribunal did not allow the addition of the issues. I agree with the reasoning of the Tribunal in both decisions. However, in the facts before me, the applicant was aware that section 32(1) was an issue being raised unlike the respondents in Campbell and Pereira.
11In the facts before me, the applicant notified the respondent of his intention by submitting an OCF-1 that he obtained a copy of from his counsel. In order to make a determination on whether the applicant failed to submit his application within the time prescribed in the Schedule, the Tribunal needs to first determine whether the applicant notified the respondent in accordance with the timeframe in section 32(1) before it can proceed to the next step in its analysis.
12This is not a case where the applicant notified the respondent about his intention to seek accident benefits and then the respondent provided the applicant with the OCF-1. Based on my review of the submissions, it appears that both parties have conflated sections 32(1) and 32(5). Therefore, in order to properly adjudicate this matter, the Tribunal needs to determine whether the applicant notified the respondent of his intention to seek accident benefits.
13As such, the motion is granted. The second preliminary issue shall be added as an issue in dispute.
Preliminary issue #1
Background
14The applicant was involved in an accident on October 22, 2019. He was a cyclist who was struck by a car. He was diagnosed with a left orbital wall fracture and left maxillary sinus fracture with a concussion. He retained counsel on or about July 8, 2021. He first notified the respondent of his intention to seek accident benefits by submitting an OCF-1 on October 1, 2021.
The Law
15Pursuant 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.
16Once 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.
17I 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, 2003 ONFSCDRS 92, and was more recently reiterated in K.H. vs Northbridge, 2019 CanLII 101613 (ON LAT). The guiding principles are summarized 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. Ignorance of the law alone is not a “reasonable explanation.
d. 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.
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.
18It is not disputed that the applicant did not notify the respondent within the timeframe set out in section 32(1) of the Schedule. I must now determine whether the applicant has a reasonable explanation for the delay.
Parties’ positions
19The applicant submits that he became aware in or about July 2021 when he retained counsel. At the time, he did not have the name of the owner/operator of the automobile that hit him. He received this information after he retained legal counsel who obtained a copy of the Motor Vehicle Collision Report, which identified the insurer. A copy of this report was obtained on October 01, 2021 and the applicant submitted the OCF-1 on the same date. He submits that he notified the insurer as soon as practicable after he obtained the identity of the insurer.
20Moreover, the applicant asserts that the respondent’s insured reported the subject motor vehicle accident to the respondent on or about October 24, 2019. The respondent was aware that this accident involved a car and a bicycle. The Motor Vehicle Collision Report identifies both the respondent’s insured and the applicant, and that an ambulance attended, and transportation was performed, indicating a strong possibility of an injured bicyclist.
21According to the adjuster’s log notes, one request for a social media search was made in December 2019. No further searches or inquiries were made by the respondent to contact the applicant. The respondent owed a duty to take reasonable steps to contact the applicant knowing that the bicyclist may not have motor vehicle insurance. The respondent, however, did not send an OCF-1 and make the applicant aware of accident benefits.
22Moreover, the applicant submits that he sustained a traumatic brain injury with memory loss and that he did not know his rights because of his life experience and serious injury. Furthermore, the COVID-19 pandemic is also a reason for the late submission. The applicant submits that his explanation for his late submission of his application for accident benefits is reasonable, credible and/or worthy of belief. It does not rest on ignorance of the law alone but has a medical basis due to a traumatic brain injury.
23The respondent submits that the applicant's explanation for his late submission of his application for accident benefits is not credible or worthy of belief. In his statement, the applicant claims that the reason his application was late was due to COVID-19 and he was scared to go out. The respondent submits that the applicant's clinical notes and records provide evidence to the contrary. The applicant should have made further inquiries regarding his ability to apply for accident benefits far earlier than when he met with his legal representatives. The respondent submits that considering the doctor’s visit in which the applicant was advised that he could potentially access motor vehicle benefits, it is not believable that he did not know until July 2021 when he met up with his legal representation.
24I am not persuaded by the applicant’s position that the respondent owed a duty to take reasonable steps to contact the applicant. There is no such duty set out in the Schedule and the applicant has not directed the Tribunal to any jurisprudence that suggests this. The Schedule is clear that the applicant must first notify the respondent of their intention to seek accident benefits no later than the seventh day after the circumstances arose that give rise to the entitlement or as soon as practicable after that day.
25Once the respondent is notified, then they must promptly provide the applicant with the application form, written explanation of benefits and the information regarding the benefits and the election of specified benefits. In the facts before me, the respondent could not have sent the forms and provided information to the applicant if it was not made aware of his intention to seek accident benefits. I find that the respondent did not become aware of his intention until the applicant submitted the application on October 1, 2021. At point, it would not have been necessary for the respondent to send the applicant the OCF-1 form as one had already been filled out and returned to the respondent.
26I am not persuaded that the pandemic was the reason for the delay in notifying the respondent of his intention to seek accident benefits and submitting the application. The pandemic was not an issue at the time of the accident. The accident occurred in 2019 and the pandemic started in 2020.
27I am not persuaded by the explanation that he did not know about accident benefits. I have reviewed the clinical notes and records from Sunnybrook Health Sciences Centre and find that the applicant was given information regarding accident benefits. In the Social Work Assessment Note dated October 24, 2019, Ms. Janna Di Pinto, social worker, noted that, “he has eligibility for accident benefits.” She noted that “he was receptive to resources re: accident benefits.” She provided him an insurance brochure and lawyer referral information. On January 24, 2020, Elke McLellan, occupational therapist, noted that the applicant may be able to access motor vehicle benefits for additional treatment. She gave him the “What you should know when you have been injured in a MVC” pamphlet.
28However, I find it credible and worthy of belief that he did not know about his rights because of his injury. The applicant suffered a brain injury with memory loss as a result of the accident. The medical evidence supports that he struggles with memory issues and that his condition has declined. It’s plausible that he does not remember receiving the information regarding the accident. I do not have any reason to disbelieve him.
29I recognize that the respondent has been prejudiced by the delay because they were not aware of the applicant’s intention to seek accident benefits and could not assess him. The delay has prevented the respondent from obtaining contemporaneous medical examinations and records. A significant amount of time has passed since the subject accident. But I also note that the applicant will face hardship as well if he is prevented from proceeding with his application.
30Without addressing the merits of the case, it appears that the applicant has sustained some significant injuries as a result of the accident. In my view, the hardship to the applicant if he is prevented from proceeding to a substantive issue hearing would be far greater than any prejudice faced by the respondent. On a balance, I find it would be fair to relieve against the consequences of the applicant’s failure to comply with section 32 because he has provided a reasonable explanation for the delay. I find that the applicant has met his onus and may proceed with his application.
31As I have determined that the applicant has provided a reasonable explanation for the delay in notifying the respondent regarding the circumstances that gave rise to the entitlement to the benefit, I find that it is unnecessary to consider whether he failed to submit an OCF-1 to the insurer within 30 days.
CONCLUSION AND ORDER
32The matter will proceed to the hearing scheduled for May 30, 2024.
33Except for the provisions listed in this order, all previous orders remain in full force and effect.
Released: December 6, 2023
Tavlin Kaur
Adjudicator