Citation: Asfaha v. RSA Insurance, 2023 ONLAT 21-003013/AABS - PI
Tribunal File Number: 21-003013/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:
Negasi Asfaha
Applicant
and
RSA Insurance
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Negasi Asfaha, Applicant
Andrew Franzke, Counsel
For the Respondent:
Lisa Dely, Claims Representative
Katherine Kolnhofer, Counsel
Heard by way of written submissions
OVERVIEW
1This proceeding concerns a dispute between an insured person (the applicant) and an insurer (the respondent) about automobile insurance benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) arising out of a motor vehicle accident on November 4, 2018. The respondent raised a preliminary issue, which is what this hearing will consider.
ISSUES IN DISPUTE
2The preliminary issues to be decided are:
Is the applicant’s claim for accident benefits barred pursuant to s. 55(1)1 of the Schedule because he failed to notify the insurer of the circumstances giving rise to a claim for a benefit within the timelines prescribed by the Schedule?
Are any of the parties entitled to a cost award pursuant to Rule 19.1 of the Common Rules of Practice and Procedure (the “Rules”) for this proceeding?
Parties’ positions
3The respondent submits that the applicant notified them about his intention to apply for accident benefits through the submission of a partially completed OCF-1 on January 12, 2021 via facsimile. The respondent is of the view that the applicant should be statute-barred from proceeding with his application because he has not provided a reasonable explanation for the delay. The applicant has not provided evidence regarding his son’s legal troubles or the timing of such. The records do not support the claim that he was stressed to any medically significant degree during the period that followed the accident.
4The applicant disagrees. He asserts that he notified the respondent of his intention to apply for accident benefits by sending an OCF-1 on December 18, 2020 via facsimile. He submits that he did not own the vehicle that was involved in the collision, had no insurance of his own, and no ability to meaningfully access the insurance documentation associated with the vehicle in the context of his relationship with the owners of the vehicle. The owners did not want their insurance premiums to go up.
5Moreover, the applicant was psychologically preoccupied by his son’s imprisonment and ongoing involvement with the criminal justice system, as well as struggling to pay for his legal representation. It was after the ordeal that he started to focus on himself. He did not know that he could claim accident benefits from the respondent insurance company.
LAW
6Pursuant to s. 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.
7Once 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 (s. 32(2)). Pursuant to s. 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.
8I note that s. 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 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).
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?
9It is not disputed that the applicant did not notify the respondent within the timeframe set out in section 32(1) of the Schedule. While the parties disagree about when the applicant notified the respondent, I accept the applicant’s evidence that he notified the respondent on December 18, 2020. The facsimile cover sheet shows that the OCF-1 was successfully sent on that day.
10In my view, there is a significant delay in notifying the respondent about the intention to seek accident benefits. I must determine whether the applicant had a reasonable explanation for the delay. While I accept that the applicant was preoccupied with his son’s criminal matter at the time of the accident, he has not provided any other evidence to substantiate this fact. The information at the Examination Under Oath (“EUO”) is vague and does not provide enough information to persuade me that he has a reasonable explanation for the delay. This is particularly important because he has the burden on a balance of probabilities to prove that the delay is reasonable. The sparseness of his evidence falls short of this burden. Certainly, it would have been open to him to recognize that and further provide evidence in support of his position. Given the public nature of such proceedings, the applicant could have provided evidence from his son’s criminal proceedings that would have assisted in substantiating his position.
11I do not accept his explanation about not having access to the insurance documentation as the owners of the vehicle would not provide it to him because they did not want their premiums to go up. The Motor Vehicle Collision Report completed by Officer Daniel Wacker notes the insurance company and the policy number. At the Examination Under Oath (“EUO”) on March 11, 2021, the applicant admitted that he had the information for the insurance policy. He provided it to the officer. I find that the applicant had this information in his possession and am not persuaded by his explanation.
12The applicant submits that, “It is credible and worthy of belief that a profound psychological disturbance like this could prevent a reasonable person in his circumstances from turning his mind to his own pain complaints and a potential application for accident benefits. That explanation is also consistent with his lack of attendances for medical treatment during that time.”
13While I accept that the applicant may have been psychologically struggling with his son’s situation, he has not provided any evidence, such as clinical notes and records or affidavits, to support his submissions that he had a psychological disturbance with the effect on him to the extent he claims. Nor do I accept that the COVID-19 pandemic limited his ability to access healthcare. He did not mention this as a reason at the EUO. Moreover, the pandemic was declared in early 2020. The accident was in late 2018. Even if the applicant’s assertion is true, there is no medical evidence submitted that suggests that he was struggling psychologically pre-pandemic. I also disagree with the applicant’s submission that a lack of corroborating medical evidence would be relevant to substantive entitlement, not the credibility of the applicant’s explanation. Medical evidence would have assisted in determining whether or not the applicant’s explanation for his delay was reasonable. Based on the scant evidence that is before me, I find that it was not.
14I find that the respondent would be prejudiced if this application were allowed to proceed. A significant amount of time has passed between the date of the accident and the date when the applicant notified the respondent of his intention. The respondent would not be able to assess the applicant’s conditions given that a significant amount of time has passed. This would place the respondent at a disadvantage.
15As I have determined that the applicant failed to provide 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 within the prescribed timelines.
16Pursuant to section 55(1)1 of the Schedule, the applicant shall not apply to the Tribunal as a result of his failure to adhere to the timelines provided by the Schedule. Considering my analysis above, I find no compelling reason to invoke section 55(2) of the Schedule and use my discretion and permit the applicant to continue his application to this Tribunal. I am fully cognizant of the ramifications to the applicant’s claims for accident benefits and do not make this decision lightly.
COSTS
17The applicant submits that if the respondent truly believed that this application is frivolous, then it could have sought relief pursuant to Rule 3.4 of the Rules to have it dismissed. It did not do so and its position on costs is without merit.
18The respondent submits that the applicant behaved unreasonably and frivolously in commencing and pursuing the within proceeding. The respondent therefore submits that it is entitled to recover its costs of the defence of the proceeding, including costs related to this preliminary issue hearing, pursuant to Rule 19.1 of the Rules.
19I find neither party has not met the test set out in Rule 19. In the absence of reasons and particulars, I am unable to award costs to either party. In any event, I find the actions of both parties are not sufficient to award costs. The test to find bad faith and unreasonable, frivolous, vexatious behaviour is very high. Neither party’s behaviour has met this threshold.
CONCLUSION AND ORDER
20The applicant has not provided a reasonable excuse for the delay in reporting his intent to seek accident benefits.
21Pursuant to section 55(1)1 of the Schedule, the applicant shall not apply to the Tribunal because he failed to comply with time limits prescribed by section 32(1) of the Schedule.
22The application is dismissed.
Released: February 17, 2023
___________________________
Tavlin Kaur
Adjudicator