Tatyana Kulikova v. SGI Canada Insurance Services Ltd., 2023 CanLII 34459

22-004535/AABS-PI

Licence Appeal Tribunal File Number: 22-004535/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:

Tatyana Kulikova

Applicant

And

SGI Canada Insurance Services Ltd.

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Tatyana Kulikova, Applicant Luke Hamer, Counsel Chris Jackson, Paralegal

For the Respondent:

Michael Silver, Counsel

Heard by way of written submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1On August 22, 2019, the applicant’s daughter passed away in an automobile accident. The applicant sought benefits for herself 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, SGI Canada Insurance Limited Services Inc. (“SGI”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2The preliminary issue to be decided is whether the applicant is barred from proceeding with her claim for a non-earner benefit as she failed to notify the respondent of the circumstances giving rise to her claim for the benefit.

3The question that is before the Tribunal is a very narrow one. However, it should be noted that the parties have addressed other issues in their submissions, which are issues that are not properly before the Tribunal. If other issues are to be added, parties must follow the appropriate procedure, such as filing a motion to add any additional issues. That has not been done in this case. As such, the Tribunal will not consider any additional issues.

RESULT

4I find that the applicant is not statute-barred from proceeding with her application.

ANALYSIS

Background

5The applicant’s daughter was involved in a tragic accident on August 22, 2019. She unfortunately passed away. Shortly thereafter, the respondent was notified of the accident and issued a death and funeral benefit.

6The applicant did not submit her application for accident benefits until August 12, 2021. On October 4, 2021, the applicant provided an OCF-3 dated September 25, 2021, which indicated that she suffered a complete inability to carry on a normal life. On February 7, 2022, the respondent informed the applicant that her claim for the non-earner benefit would not be considered as she did not apply within the required time period.

Relevant Legislation

7Pursuant 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.

8Once 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.

9I 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 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

10The applicant submits that she gave notice of the accident to the respondent in a timely manner, and correspondence between her and the respondent demonstrates that the respondent had knowledge of it. It is clear that the respondent knew of the accident because it paid death and funeral benefits. The applicant alleges that the respondent knew or ought to have known that she might be eligible for other benefits, but it did not communicate or send her an accident benefits package upon being notified of the accident. There is no record of any letter being sent to the applicant explaining any of the benefits that she might be entitled to, or how to apply for them. At no time in the two-year period following the accident did the respondent inform the applicant that she might be eligible to apply for the non-earner benefit or give her any information regarding it.

11The respondent’s initial and reply submissions do not address the preliminary issue in dispute set out in the Case Conference Report and Order dated February 24, 2023. Rather, its arguments address the applicant’s failure to submit a disability certificate. This is not the issue before the Tribunal.

12Based on the evidence before me, I find that the applicant notified the respondent about her daughter’s accident in a timely manner. Once the respondent was notified, there was an obligation to provide her with the information and documents set out in section 32(2)(a) to (d).

13The respondent did not provide any evidence or submissions such as adjusters log notes or correspondence, that sheds light on what was discussed between the parties and whether the respondent sent the applicant the required information mandated by section 32(2). As the respondent raised the preliminary issue, it was its onus to prove its case as the moving party. I also note that the respondent’s reply submissions do not address the allegations been made by the applicant. As such, I am persuaded by the applicant’s evidence and submissions that she was not provided with the information set out in section 32(2).

14I am satisfied that the explanation is credible and worthy of belief. I find that the applicant provided a reasonable explanation for the delay. She was not provided with the information regarding the application and benefits. Therefore, she could not have been expected to know the benefits for which she might have been eligible. As a lay person, the applicant is an unsophisticated party who was also grieving the tragic death of her daughter. In my view, the respondent had an obligation to provide her with the information outlined in section 32(2). I find the fact that it did not, to be prejudicial to her.

15On the other hand, the respondent has not provided any submissions regarding the prejudice it would face, should the matter be allowed proceed. In balancing the prejudice to the respondent and the hardship to the applicant, I find that it is equitable to relieve her against the consequences of the failure to comply with the time limit.

ORDER

16The applicant has provided a reasonable explanation for delay under section 34 and may proceed with her application.