Citation: Younes v. Liberty Mutual Insurance Company, 2023 ONLAT 20-006050/AABS
Licence Appeal Tribunal File Number: 20-006050/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:
Siham Younes
Applicant
And
Liberty Mutual Insurance Company
Respondent
AMENDED PRELIMINARY ISSUE HEARING DECISION [ORDER]
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Siham Younes, Applicant
For the Respondent:
Aly Pabani, Counsel
Held in writing
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 – Accidents on or after November 1, 1996 (the “Schedule”)1 arising out of a motor vehicle accident on March 21, 1999.
PRELIMINARY ISSUE IN DISPUTE
2Preliminary Issue:
- Is the applicant barred from proceeding with her claim for benefits because she failed to submit an application for benefits within the timeframe prescribed by the Schedule?
RESULT
3Pursuant to section 50(1) of the Schedule, the applicant is barred from proceeding with her claim for accident benefits as she failed to comply with the timelines prescribed by section 32 of the Schedule.
BACKGROUND
4On May 30, 2020, the applicant filed an application with the Licence Appeal Tribunal (the “Tribunal”) for accident benefits with respect to an accident that occurred on March 21, 1999. The applicant is seeking lost educational expenses, a car loan, and a student loan, a catastrophic impairment determination and interest.
5The respondent first became aware of the subject accident on July 23, 2020 when it received a notice of case conference from the Tribunal. On February 3, 2021, counsel for the respondent wrote to the applicant to advise her that Liberty Mutual ceased operations in Canada. The email included a link about accident benefits in Ontario and an application form. In this email, the respondent also requested a copy of the OCF-1 application for accident benefits.
6On March 3, 2021, the respondent’s counsel followed up to inquire what the applicant was seeking and mentioned that his client had not received an application from her. He also informed her that there were strict timelines, which she did not comply with. The applicant advised via email to counsel that she understood there was a time limit and that the law firm she had retained had an application on her behalf.
7A case conference took place before Adjudicator Watt on March 5, 2021. A hearing was scheduled for January 10, 2022. On the day of the case conference, counsel for the respondent sent an email to the applicant with a link about the legislation and urged her to obtain legal representation. Counsel notified the applicant that the respondent did not have an application for accident benefits on file and therefore, there was nothing to dispute at the hearing.
8On January 7, 2022, the Tribunal heard a motion brought by the respondent to adjourn the hearing on the basis that the applicant had not provided any documentation in support of her case. The Tribunal ordered that the videoconference hearing date remain set and that the purpose of the hearing would be to discuss case management and the respondent’s preliminary issue rather than to deal with the merits of the substantive issues in dispute.
9The parties appeared before Vice-Chair Aquilina on January 10, 2022. It was determined that a preliminary issue hearing would be scheduled at a later date regarding whether the applicant was statute-barred from proceeding for failing to submit an application for benefits within the timelines prescribed within the Schedule.
PARTIES’ POSITIONS
10The applicant submitted that:
Section 236 of the Insurance Act, places certain obligations on the insurers regarding the renewal or non-renewal of a contract of insurers and provides that the contract of insurance remains in force until the insurer has complied with its notice obligations. Ms Siham Younes of a contract of Insurance and provides that the contract of Insurance with Liberty Mutual remains in force until the Insurer Ms Siham Younes has complied with its notice obligations.”
11She submitted that she was covered by Liberty Mutual. She is of the view that the incident that occurred on March 21,1999 is inexcusable and that the injuries were caused by the accident, medical malpractice and insurance negligence. She stated that she is “asking damages for negligence, and punitive damages restricted to situations in which the misconduct in question was intentional and deliberate, and extreme in nature and such that by any reasonable standard it is deserving of full condemnation and punishment.”
12The respondent submitted that their records revealed a policy that was issued to the applicant effective October 17,1997, and expired October 17, 1998. The respondent stated that, “the Applicant has been unable to produce any records indicating that Liberty Mutual handled a claim for accident benefits on her behalf and has not produced an OCF-1 Application for Accident Benefits, or any denial letters regarding any issues in dispute. There is no claim number associated with Liberty Mutual’s Records office and based on coverage search, the policy with Liberty lapsed October 17, 1998, which predates the March 21, 1999 date of loss listed on the Application and within documents.”
13It is the respondent’s position that the applicant is precluded from accessing the dispute resolution process in accordance with s. 50 of the Schedule because she failed to notify the respondent of the accident for more than 20 years post loss without a reasonable explanation. This is in violation of s. 32 of the Schedule. The Tribunal does not have the jurisdiction to hear the matter due to her failure to serve a signed and completed OCF-1 application for accident benefits.
ANALYSIS
14Pursuant to section 32 (1.1) of the Schedule, a person shall notify the insurer under subsection (1) no later than, (a) the 30th day after the circumstances arose that gave rise to the entitlement to the benefit, or as soon as practicable after that day if those circumstances arose as a result of an accident that occurred before October 1, 2003.
15Pursuant to section 32(3) of the Schedule, the person shall submit a signed application for the benefit to the insurer within 30 days after receiving the application forms.
Did the applicant notify the respondent about the accident?
16The accident occurred on March 21, 1999, and the respondent became aware of the subject accident on July 23, 2020. The respondent submitted that there is no claim number associated with Liberty Mutual’s Records office. Moreover, her policy lapsed on October 17, 1998, which predates the subject accident.
17The applicant did not file any evidence that shows that she notified the respondent within the prescribed timelines.
18On a balance of probabilities, I find that the applicant did not notify the respondent about the circumstances that arose as a result of the accident within 30 days.
Was the OCF-1 submitted within the timeframes prescribed in the Schedule?
19In addition to finding that the applicant did not notify the respondent within the prescribed timelines, I also find that the applicant did not submit the OCF-1 within 30 days.
20The respondent submitted that the applicant is precluded from accessing the dispute resolution process in accordance with section 50(1) of the Schedule because she failed to submit her OCF-1 within the timelines prescribed by the Schedule. I note that the respondent’s counsel reached out to the applicant regarding this on multiple occasions. The emails are unequivocal. He also encouraged her to obtain legal counsel. I find that the respondent provided adequate information to assist the applicant in applying for accident benefits. From my review of the correspondence, it is quite clear that the respondent did not receive the OCF-1 within the prescribed timelines.
21The applicant did not provide any submissions that address whether or not the OCF-1 was submitted within the prescribed timelines in the Schedule. She did not submit a copy of the OCF-1, denial letters or any correspondences from Liberty Mutual. The evidence that she submitted does not address whether she submitted the OCF-1.
22Based on the evidence before me, I find that the OCF-1 was not submitted within the prescribed timelines under the Schedule.
23However, pursuant to section 31(1) of the Schedule, an applicant may not be disentitled for failing to comply with section 31(1) if she provides a reasonable explanation for the delay.
24The applicant’s submissions do not provide a reasonable explanation regarding the delay. I have also reviewed all of the documents that she submitted into evidence. I do not find that these documents assist me in determining whether there is a reasonable explanation for the delay. While I recognize that the applicant has been through some difficult circumstances, the evidence does not address the issue before me.
25The respondent submitted that the explanations, or lack thereof, provided to date are not credible or worthy of belief. Moreover, ignorance of the law is not considered a reasonable explanation. The applicant’s late reporting of the incident has resulted in prejudice to the insurer. The respondent has not had the opportunity to address benefits, assess medical information, or refer the applicant for insurer examinations contemporaneously with the timeline of the claim.
26Pursuant to section 50(1) of the Schedule, the applicant cannot apply to the Tribunal as a result of her failure to adhere to the timelines provided by the Schedule. Considering my analysis above, I find no compelling reason to invoke section 50(2) of the Schedule and use my discretion and to permit the applicant to continue her application to this Tribunal. I am fully cognizant of the impact this has on the applicant’s claim for accident benefits and do not make this decision lightly.
CONCLUSION AND ORDER
27Pursuant to section 50(1) of the Schedule, the applicant is barred from applying to the Tribunal because she failed to submit her application within the times prescribed by section 32(1.1) and (3) of the Schedule.
28The Application is dismissed.
Released: January 27, 2023
___________________________
Tavlin Kaur
Adjudicator