ONLAT 22-005689/AABS-PI
Licence Appeal Tribunal File Number: 22-005689/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:
Eugene Borg
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
AMENDED PRELIMINARY ISSUE DECISION AND ORDER
Adjudicator: Tavlin Kaur
APPEARANCES:
For the Applicant: Eugene Borg, Applicant Pasquale Maiolo, Paralegal
For the Respondent: Dan Nguyen, Adjuster Jason L. Hepburn, Counsel
Held by Teleconference: January 27, 2023
OVERVIEW
1Eugene Borg, the applicant, was involved in an automobile accident on July 5, 2018 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, The Dominion of Canada General Insurance Company, 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 failed 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?
RESULT
3I find the applicant is barred from proceeding with his claim for accident benefits as he failed to comply with the timelines prescribed by section 32(1) of the Schedule.
ANALYSIS
4The applicant was involved in an accident on July 5, 2018. On July 14, 2020, the respondent first became aware of the applicant’s intention to apply for accident benefits when it received the Application for Accident Benefits (OCF-1), Permission to Disclose Health Information (OCF-5), Expenses Claim Form (OCF-6) and a copy of a Disability Certificate (OCF-3) from the applicant’s legal representative.
5The respondent submits that the applicant failed to notify the respondent of his intention to apply for statutory accident benefits in accordance with the time limit set out in section 32(1) of the Schedule. The respondent further submits that the applicant failed to provide a reasonable explanation for the delay in notifying the respondent pursuant to section 34 of the Schedule.
6The applicant did not file submissions with the Tribunal.
Relevant Legislation
7For the following reasons, I find that the applicant is barred from proceeding with his application.
8Pursuant 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.
9Once 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.
10I 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).
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?
11Based on the evidence before me, it is clear that the applicant did not notify the respondent within the timeframe set out in section 32(1) of the Schedule. The respondent was first notified of the accident and the applicant’s intention to apply for statutory accident benefits two years and nine days after the accident. On April 13, 2021, the applicant’s legal representative forwarded an email from the applicant to the respondent. The email states: “…The delay in reporting to the insurer was my medical condition.” This email substantiates the fact that there was a delay that does not meet the timeframe requirements of s. 32.
12I must now determine whether the applicant had a reasonable explanation for the delay.
13As noted above, the applicant did not file any submissions or evidence in support of his case. The onus is on the applicant to establish a reasonable explanation for the delay. However, for the sake of completeness, I have reviewed the evidence to determine whether I should exercise my discretion to allow the applicant to proceed because of a reasonable explanation.
14One of the explanations for the delay that was provided in a letter dated August 17, 2020 is that the lawyer was retained one year after the subject accident, and he was waiting for receipt of the required completed forms. The OCF-3 was signed and dated by Dr. Christopher Pinto, family physician, on November 7, 2018. This form was filled out a few months after the subject accident. The applicant had one of the forms in his possession prior to retaining his legal counsel. I am not persuaded by this explanation. Despite having the form in his possession, it was not submitted until July 14, 2020.
15I am also not persuaded by the applicant’s explanation provided to the respondent that his medical condition contributed to the delay. The email dated April 13, 2021 does not provide any details about the applicant’s medical condition and how that delayed him from notifying the respondent of his intention to apply for accident benefits. I find the explanation to be vague and not persuasive.
16Overall, I find that the applicant failed to provide a reasonable explanation for failing to comply with the timelines.
17I am persuaded by the respondent’s position that the significant delay has prevented it from responding to the claim against it. I do find that the respondent has been prejudiced by the delay.
18As 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 the issue of whether the OCF-1 was submitted in accordance with section 32(5) of the Schedule.
19Pursuant 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.
ORDER
20The 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 explanation for the delay.
21Pursuant 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.
22The application is dismissed.
Released: April 27, 2023
___________________________
Tavlin Kaur
Adjudicator