Licence Appeal Tribunal File Number: 21-009465/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:
Sean Jacob
Applicant
and
Coseco Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Sean Jacob, Applicant
Sandra Train, Counsel
For the Respondent:
Julianne Brimfield, Counsel
Heard by way of written submissions
OVERVIEW
1On October 2, 2016, the applicant’s mother died in an automobile accident. The applicant 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, Co-operators General Insurance Company (“Co-operators”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2Is the applicant barred from a hearing for all benefits because the applicant failed to follow the timelines for applying for accident benefits as per section 32(1)?
RESULT
3I find the applicant is not barred from proceeding with his claim for accident benefits.
ANALYSIS
4On October 2, 2016, the applicant’s mother was struck as a pedestrian by a motor vehicle. As a result of the accident, she passed away from her injuries. The applicant contacted the respondent regarding the death and funeral benefits available under the policy. The respondent paid the applicant for this benefit. On April 19, 2021, the applicant submitted an Application for Accident Benefits (“OCF-1”) to the respondent in order to claim benefits for psychological injuries arising from his mother’s death due to the accident.
5On July 21, 2021, the respondent denied the applicant’s claim on the basis that the applicant had not provided a reasonable explanation for the late submission of his application pursuant to section 34 of the Schedule. On August 1, 2021, the applicant commenced an application with the Tribunal to dispute the denial of his claim.
6The applicant submits that under section 32, once an insurer receives notice of an applicant’s intention to apply for “one or more” 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. It is his position that the respondent did not provide the application forms as is contemplated by section 32(2) of the Schedule.
7The respondent submits that the applicant first notified the insurer that he was pursuing his own accident benefits claim for psychological injuries caused by this accident when he first submitted his OCF-1 in April 2021, approximately four and a half years after the accident occurred. The applicant did not meet the timeline for advising the insurer of an intention to make a claim for benefits as outlined in section 32(1) of the Schedule.
Relevant Legislation
8For the following reasons, I find that the applicant is not barred from proceeding with his application.
9Pursuant 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.
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, 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.
11I 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:
- An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.
- The onus is on the insured person to establish a “reasonable explanation.”
- Ignorance of the law alone is not a “reasonable explanation.”
- 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.
- The lack of prejudice to the insurer does not make an explanation automatically reasonable.
- 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
12The applicant submits that the respondent did not comply with sections 32(2) and 32(8) of the Schedule. The respondent should have taken steps to inform the applicant of his potential entitlement to benefits.
13Based on the evidence before me, I find that the applicant notified the respondent about his mother’s accident in a timely manner. Once the respondent was notified, there was an obligation to provide him with the information and documents set out in section 32(2)(a) to (d).
14The respondent did not provide any evidence or submissions such as adjuster’s log notes or correspondences from 2016, that shed 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 do not have any evidence from the respondent that shows that it met its obligations under section 32(2) of the Schedule.
15At the Examination Under Oath (“EUO”), the applicant mentioned that he did not know that he could make a claim. I find his explanation worthy of belief. There is no evidence that shows that he was provided with the information regarding the application and benefits after informing the respondent that he was seeking death and funeral benefits in 2016. Therefore, he could not have been expected to know the benefits for which he might have been eligible. As a lay person, the applicant is an unsophisticated party who was also grieving the tragic death of his mother.
16In my view, the respondent had an obligation to provide him with the information outlined in section 32(2). I find the fact that it did not was prejudicial to him. On the other hand, the respondent has not provided any submissions regarding the prejudice it would face, should the matter be allowed to proceed. In balancing the prejudice to the respondent and the hardship to the applicant, I find that it is equitable to relieve him against the consequences of the failure to comply with the time limit.
17The applicant has provided a reasonable explanation for delay under section 34 and may proceed with his application.
ORDER
18It is ordered that the application will proceed to a substantive issue hearing scheduled for September 15, 2023.
Released: April 26, 2023
Tavlin Kaur
Adjudicator