Hussein Jakupovic v. Intact Insurance Company, 2023 CanLII 122890

22-014111/AABS-PI

Licence Appeal Tribunal File Number: 22-014111/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:

Hussein Jakupovic

Applicant

and

Intact Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Vanessa Liang, Paralegal

For the Respondent:

Kevin Motley, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Hussein Jakupovic, the applicant, was involved in an automobile accident on February 13, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided is whether the applicant is barred from proceeding with his claim for accident benefits under section 55 of the Schedule because he failed to notify the insurer and 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?

RESULT

3The applicant is barred from proceeding with his application.

ANALYSIS

Background

4The applicant was involved in an accident on February 13, 2019. The respondent was notified of the applicant sustained injuries in the accident on December 2, 2020 and received an OCF-1 on December 12, 2020.

The Law

5Pursuant 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.

6Once 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.

7I 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:

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 for “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.

Parties’ positions

8The respondent submits that the applicant failed to notify the insurer of his intention to bring a claim within the time prescribed under the Schedule. The respondent asserts that merely reporting a motor vehicle collision incident is not sufficient under the wording of section 32(1) of the Schedule. It is the respondent’s position that it had no obligation to provide any accident benefits package or forms if the applicant failed to first notify the respondent of his intention to apply for accident benefits under the Schedule.

9The applicant submits that the notice requirement is met. He asserts that he notified the respondent of the accident on February 14, 2019, only one day after the accident, when he reported “heavy damage” to the vehicle, which is documented in the adjuster’s log note. The applicant’s vehicle was not drivable and declared as a total loss. The applicant asserts that this alerted the respondent of the accident, and it should have made further inquiries about whether the applicant was injured and provided him with an accident benefits package to educate and inform him about accident benefits and the application process. The applicant submits the respondent failed to comply with its obligations under section 32(2) of the Schedule.

10Moreover, the applicant submits he notified the respondent as soon as practicable after the accident of his intention to apply for accident benefits. Since the respondent did not deliver the accident benefits package to the applicant promptly, the applicant discovered accident benefits and the application process when he consulted a paralegal. Only after this consultation he was able to notify the respondent of his intention to apply for accident benefits. He submits that he had no other way to obtain the form or the knowledge of how to apply for accident benefits.

11I do not find the applicant’s explanations credible or worthy of belief. 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 February 14, 2019, the applicant contacted Regina Baker, adjuster, to report that he was in an accident. There is no mention made of any injuries sustained by the applicant in the adjuster’s log notes. Nor did the applicant convey that he sustained any injuries to the adjuster. It was not until December 2, 2020, when an employee by the name of Pavinder from Gustan Legal Services informed the respondent that the applicant had sustained injuries as a result of the accident. The applicant sent an OCF-1 on December 12, 2023. The respondent provided the applicant with the accident benefits package on December 16, 2020. On December 30, 2020, the applicant provided the documents without the OCF-3.

12While 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 December 2, 2020. Based on the adjuster’s log notes, the applicant did not report any injuries from the accident, nor did he advise the respondent that he was seeking accident benefits. In fact, the applicant had multiple communications with the respondent following the accident and no mention was made of any injuries from the accident or his intention to seek accident benefits. Rather, the communications were in relation to a property damage claim.

13I am not persuaded by the applicant’s position that the respondent has a duty to take reasonable steps to contact the applicant in order to ascertain whether they are seeking accident benefits. 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.

14I am not persuaded by the applicant’s argument regarding the respondent not providing him with information and forms. The respondent could not have sent the appropriate forms and provided information to the applicant where the applicant did not notify it of any accident-related injuries and where it was not made aware of his intention to seek accident benefits. I find that the respondent did not become aware of his purported injuries or of his intention to seek accident benefits until it was contacted by the applicant’s representative on December 2, 2020. Once it became aware of the applicant’s intention, it provided the forms.

15I am not persuaded by his explanation regarding not knowing that he could apply for accident benefits. He knew enough to contact the respondent regarding the damage to his vehicle. Moreover, it does not explain how he was not aware that his policy covered accident benefits given that the policy does set this out.

16Without 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. As such, I am not persuaded that that he provided a reasonable explanation for the delay in notifying the respondent.

COSTS

17The applicant has requested costs. I find that the applicant has not met the test set out in Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017, as amended. In the absence of reasons and particulars, I am unable to award costs to him. In any event, I find the actions of the respondent are not sufficient to award costs. Rule 19.1 stipulates that behaviour that may attract costs must be unreasonable, frivolous, vexatious or in bad faith. The test to find behaviour that is in bad faith, unreasonable, frivolous, or vexatious is very high. There is no evidence that the respondent’s behaviour has met this threshold.

ORDER

18The 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. His explanations were not credible or worthy of belief. As such, he is not entitled to pursue his application for accident benefits.

19The applicant is not entitled to costs.

20The application is dismissed.