Adjetey v. Economical Insurance, 2023 CanLII 1466

Citation: Adjetey v. Economical Insurance, 2023 ONLAT 22-000712/AABS- P.I.

Licence Appeal Tribunal File Number: 22-000712/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:

Albert Adjetey

Applicant

and

Economical Insurance Company

Respondent

PRELIMINARY ISSUE DECISION [AND ORDER]

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Albert Adjetey, Applicant

Nicholas Whelan, Paralegal

For the Respondent:

Courtney Sparks, Adjuster

Mirsa Duka, Counsel

Heard by way of written submissions

REASONS FOR DECISION [AND ORDER]

BACKGROUND

1The applicant was involved in a motor vehicle accident on October 3, 2019 and sought benefits from the insurer (“respondent”) under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The respondent denied the applicant’s benefits. The applicant applied to the Licence Appeal Tribunal (“Tribunal”) for resolution of the dispute. The respondent raised a preliminary issue, that, if established, would dispose of the entire application. This written hearing will determine the preliminary issue.

PRELIMINARY ISSUES

2The preliminary issues to be decided are as follows:

1. Is the applicant barred from proceeding to a hearing on the substantive issues in dispute because the applicant submitted a late Application for Accident Benefits (OCF-1) in September 2021, and has not provided a reasonable explanation for the late submission?

2. Is the applicant precluded from proceeding with his claim for accident benefits due to his omission to notify the insurer about his intention to apply for benefits within 7 days from the date of loss and his failure to provide a reasonable explanation for the delay?

3Due to the unique circumstances of this application, issues #1 and #2 will be addressed together in the analysis.

RESULT

4I find the applicant is barred from proceeding with his claim for accident benefits as he failed to comply with the timelines prescribed by s. 32(1) of the Schedule.

PARTIES’ POSITIONS

5The respondent submits that the applicant has failed to comply with s.32(1) of the Schedule, because he failed to notify the insurer of his intention to apply for accident benefits within seven (7) days and further failed to provide a “reasonable explanation” for the failure to apply pursuant to s. 34 of the Schedule.

6The applicant acknowledges the delay but submitted that there is a reasonable explanation for it. He submits that the respondent did not provide him with the Application for Accident Benefits (“OCF-1”) forms and as a result, he was unable to decipher which accident caused his injuries as he was involved in multiple accidents.

Relevant Legislation

7The relevant sections of the Schedule are as follows:

8Section 32(1)

A person who intends to apply for one or more benefits described in this Regulation shall notify the insurer of his or her 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 after that day. (Emphasis added)

Section 32(5)

The applicant shall submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms. (Emphasis added)

Section 34

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. (Emphasis added)

Section 55(1)

Subject to subsection (2), an insured person shall not apply to the Licence Appeal Tribunal under subsection 280(2) of the Act if any of the following circumstances exist:

1. The insured person has not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted an application for benefits within the times prescribed by this Regulation.

ANALYSIS

9Pursuant 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.

10Once 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.

11It should be noted 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.”

12The applicant was involved in the automobile accident on October 3, 2019. There is no dispute that the applicant failed to notify the respondent within seven days of the accident pursuant to section 32(1) and that he failed to file an application for accident benefits within thirty days as per section 32(5).

13In fact, the respondent appears to only have been notified of the accident through the completed and signed OCF-1 application and an authorization/direction that was faxed by the applicant’s legal representative to the respondent September 27, 2021.

14A letter from the respondent dated October 14, 2021 informs the applicant that he would need to undergo an Examination Under Oath (‘EUO’) to determine the reason for the late reporting of injuries, the priority of his claim, how the accident occurred, his medical conditions and injuries, details regarding medical treatments, and any benefits that may be available to him.

15The applicant concedes that there was a delay of almost two years in notifying the respondent of the accident. However, he submits that he has a reasonable explanation for the delay.

Reasonable Explanation

16Pursuant to s. 34 of the Schedule, an applicant may not be disentitled for failing to comply with s. 32 if it provides a reasonable explanation for the delay. The interpretation of “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada¹, and was more recently reiterated in K.H. vs Northbridge.² 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.

17The respondent submits that the applicant failed to provide a reasonable explanation for the delay. The delay in reporting the accident has caused prejudice to the insurer and has deprived the respondent the opportunity to obtain contemporaneous information regarding the applicant’s alleged injuries, obtain contemporaneous medical documentation, and to contemporaneously investigate and assess the applicant’s claim.

18The applicant submits that at first, he believed his impairments stemmed from two previous accidents. As time progressed, it then became clear to him that his impairments were from the subject accident. At that point, he reported his impairments to his family doctor and retained legal representation. He also alleges that the respondent did not provide him with the OCF-1 forms. The applicant is relying on 17-003686/AABS v. Gore Mutual Insurance, 2018 CanLII 131128 in support of his position.

19I find the case law submitted by the applicant distinguishable from the facts before me. In the 17-003686/AABS case, the issue was that the applicant reported the accident without delay but then did not submit the OCF-1 application forms within 30 days after receiving the documents from the insurer. In this case, the applicant did not notify the respondent about the accident to begin with. These are two separate issues which involve different sections of the Schedule. Moreover, the reasonable explanation for the delay that the Tribunal accepted in the 17-003686/AABS case was the fact that the applicant did not receive the application forms because she had moved out of the home that she shared with her husband.

20Next, I find the applicant’s explanation for the delay in notification, that he failed to receive the OCF-1 forms from the respondent, to be unpersuasive and illogical. The respondent could not have sent forms to the applicant if it was not made aware of the accident. I find that the respondent did not become aware of the accident until the applicant submitted a completed application on September 27, 2021. At that point it would not have been necessary for the respondent to send the applicant the OCF-1 forms as one had already been filled out and returned to the respondent.

21Moreover, at the EUO, the applicant was asked about the delay in submitting the application. He never mentioned that the respondent failed to provide him with the OCF-1 forms or that he had in fact notified the respondent of the accident prior to September 27, 2021. Rather, he stated “I'm not sure why I've never done something like this before so maybe it's because it's my first time. So when it comes to like application, the doctor, all these things, like I'm just getting my head wrapped around these things.” It should be noted that this was not the applicant’s first accident. He was previously involved in other accidents as per his own admission.

22Other than his submissions, the applicant has failed to provide any evidence that substantiates his position. There is no medical evidence about his impairments. He did not provide evidence that supports his explanation for the delay in notifying the respondent of the accident. Submissions are not evidence. Moreover, his legal representative undertook at the EUO to provide an explanation for the delay. No such explanation was provided to the respondent.

23Overall, I find that the applicant failed to provide a reasonable explanation for failing to comply with the timelines.

24Pursuant to section 55(1)2 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.

CONCLUSION AND ORDER

25The 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 excuse for the delay. The applicant also failed to submit his OCF-1 within the timeframes set out in the Schedule.

26Pursuant to section 55(1)1 of the Schedule, the applicant shall not apply to the Tribunal because he failed to notify the insurer within the times prescribed by the Schedule.

27The application is dismissed.

Footnotes

1. 1FSCO A02-000482, June 9, 2003
2. 22019 CanLII 101613 (ON LAT)