Licence Appeal Tribunal File Number: 21-011744/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:
Mohammed H Salih
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Shahzad Ayub, Counsel
For the Respondent:
Kylie Weber, Counsel
Heard by way of written submissions
BACKGROUND
1Mohammed Salih, the applicant, was involved in an automobile accident on March 20, 2019 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 (“Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The preliminary issue to be decided is whether the applicant is precluded from advancing his claims as contrary to section 32(1) of the Schedule because he failed to submit a claim for accident benefits within seven days after the circumstances that gave rise to entitlement arose.
RESULT
3The applicant is barred from proceeding with his application.
ANALYSIS
4The applicant was involved in an accident on March 20, 2019. On October 5, 2020, In Motion Rehab notified the respondent that the applicant might apply for benefits. On October 30, 2020, the applicant submitted the Application for Accident Benefits (OCF-1). This was 19 months and 1 week after the subject accident.
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 submits that “the respondent, in its communications with the applicant, expressly and unambiguously waived its entitlement to bring this motion to dismiss the Applicant’s application to the Licence Appeal Tribunal on the basis of Section 55(1) of Schedule.” In the alternative, he submits that he provided a reasonable explanation for the delay.
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). 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.
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. I must now determine whether the applicant had a reasonable explanation for the delay. The onus is on the applicant to establish a reasonable explanation for the delay.
12I am not persuaded by the applicant’s explanation because it is not credible or worthy of belief. The applicant submits that the delay was due to his psychological injuries. He is relying on a Psychological Assessment Report from Dr. Maneet Bhatia dated April 30, 2021. I am not persuaded by this report. It does not explain why the applicant did not notify the respondent within the timeframe set out in the Schedule. Moreover, this report was completed a little over two years after the accident. Furthermore, Dr. Bhatia relied on the applicant’s self-reporting and did not review any other clinical notes and records. As such, I assign less weight to it. The applicant also submitted medical literature regarding psychological conditions. This is not medical evidence and I assign little weight to it.
13The applicant submits that the Schedule is, first and foremost, “consumer protection” legislation, and correspondingly, that it’s interpretation by decisionmakers must “align with the consumer protection focus of the legislation.” The applicant relies on Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 and Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 in support of his case.
14Although not binding, I am persuaded by the reasoning in J.V. v. TD Insurance Meloche Monnex(“J.V.”), 2019 CanLII 110091 (ON LAT) where the adjudicator stated at paragraph 36:
I reject the implicit position that the “consumer protection” purpose of legislation or regulation relieves him from a duty to comply with the law or to meet the requirements for claiming insurance benefits. The onus is on applicants to establish their entitlement to benefits. They have a duty to comply with the prescribed process for doing so. Failing to do so isn’t “minor.”
15While I agree that the Schedule is consumer protection legislation, it is the applicant’s responsibility to comply with the procedural requirements for making an accident benefits claim.
Submissions regarding the right to dispute
16The applicant submits that the respondent waived its entitlement to bring this motion by enclosing information regarding the right to dispute. In the letters sent to the applicant, the following was included:
If you disagree with our decision and wish to dispute it, you have the right to file an application with the Ontario License [sic] Appeal Tribunal (LAT) – Automobile Accident Benefits Service (AABS) within 2 years of the date of this letter. Please refer to the attached Applicant’s Rights to Dispute for additional information about your rights and contact us if you require an AABS Application by an Injured Person.
17In his submissions, the applicant states:
The position of the Applicant is that the LAT Authorization in appearing in Letter 3, and in particular, the wording “you have the right to file an application with [the Tribunal],” amounts to a clearly stated, express authorization by the Respondent to proceed in the manner that it has, i.e., by filing an application with the Tribunal regarding its decision set out in Letter 3. By including the LAT Authorization in Letter 3, the Respondent signalled to the Applicant that it would, at the very least, proceed to have the matter adjudicated at the Tribunal. At a minimum, the Applicant submits that the LAT Authorization provides a sufficiently clear indication by the Respondent that it would not exercise (i.e., waive) whatever real or perceived entitlement it had to bring this motion to dismiss before the Tribunal in respect of the Claim.
18The respondent submits that the applicant has not submitted any authority for the assertion that by enclosing the right to dispute information, the respondent waived its recourse under section 55. To the contrary, the respondent is statutorily obligated pursuant to section 54 of the Schedule to enclose the right to dispute information upon refusal to pay benefits. Further, the right to dispute information that the respondent provided to the applicant simply advises him of the start of the limitation period to dispute the refusal and outlines possible avenues he might take in response to the denial as required by the Schedule.
19I am not persuaded by the applicant’s submissions on this point. He has not provided any evidence that he relied on the wording in the letters. There is no affidavit that confirms this. Submissions are not evidence and as such, I assign less weight to this argument. Moreover, the applicant has not directed the Tribunal to any case law or sections in the Schedule that supports his position. I assign less weight to this argument.
20As I have found that the applicant’s explanation is not credible, I do not need to consider the remainder of the five guiding principles in Horvath regarding a “reasonable explanation” analysis. I find that the applicant did not comply with the timelines set out in section 32 of the Schedule nor did he provide a reasonable explanation under section 34.
COSTS
21The applicant has requested costs. I find that the applicant has not met the test set out in Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017, as amended. In the absence of reasons and particulars, I am unable to award costs to him. In any event, I find the actions of the respondent is not sufficient to award costs. Rule 19.1 stipulates that behaviour that may attract costs must be unreasonable, frivolous, vexatious or in bad faith. The test to find behaviour that is in bad faith, unreasonable, frivolous, or vexatious is very high. There is no evidence that the respondent’s behaviour has met this threshold.
CONCLUSION AND ORDER
22The 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.
23The application is dismissed.
Released: July 25, 2023
___________________________
Tavlin Kaur
Adjudicator