Keene v. Aviva General Insurance, 2023 CanLII 98422

Keene v. Aviva General Insurance, 2023 ONLAT 23-000594/AABS-PI

Licence Appeal Tribunal File Number: 23-000594/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:

Haley Keene

Applicant

and

Aviva General Insurance

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Lindsay Charles, Counsel

For the Respondent:

Jessica Rogers, Counsel

Heard by way of written submissions

OVERVIEW

1Haley Keene, the applicant, was involved in an automobile accident on July 2, 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, Aviva General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided is whether the applicant is barred from proceeding to a hearing as she failed to notify the respondent of the circumstances giving rise to a claim for benefits no later than the seventh day after the circumstances arose or as soon as practicable after that day.

RESULT

3The applicant is barred from proceeding with her application.

ANALYSIS

Background

4The applicant was involved in an accident on July 2, 2018. She was a minor at the time of the accident. She did not notify the respondent regarding the accident until August 17, 2022 when she submitted an Application for Accident Benefits Form (“OCF-1”). On November 3, 2022, the respondent informed the applicant that she was not eligible for accident benefits because she did not comply with section 32(1) of the Schedule.

Parties’ positions

5The respondent submits that the applicant did not notify them within the required timeline and nor has she provided a reasonable explanation. The applicant submits that she was a minor and legally incapable of making decisions for several years after the accident. She did not have the ability to hire legal counsel, nor apply for accident benefits on her own accord. She stated that “as directed in the case law, the mere fact that she was a minor at the time is reasonable reason enough to explain the delay.”

ANALYSIS

The Law

6Pursuant 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.

7Once 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 (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.

8It should be noted 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, 2003 ONFSCDRS 92, 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.

Did the applicant fail to notify the insurer of her 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?

9It is not disputed that the applicant did not notify the respondent within the timeframe set out in section 32(1) of the Schedule. The accident occurred on July 2, 2018 and she notified the respondent on August 17, 2022. There is a significant delay of four years. I must determine whether the applicant had a reasonable explanation for the delay.

10The applicant submits that the Limitations Act, 2002, SO 2002, c24, Sch B (“Limitations Act”) applies as the applicant was a minor at the time of the accident. I am not persuaded that the Tribunal has the jurisdiction to apply the Limitations Act. Section 2(1) of the Limitations Act states that it applies to claims pursued in court proceedings. The Tribunal is not a court. Moreover, the Schedule and Insurance Act, RSO 1990, c I.8 do not make any references to the Limitations Act. If the legislature intended the Limitations Act to apply to proceedings before the Tribunal, then it would have explicitly stated that in the legislation.

11The applicant argues that the Tribunal has the authority to extend the limitation of time pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, SO 1999, c 12, Sch G (“LAT Act”). I do not agree with the applicant’s position. Section 7 of the LAT Act states:

i. Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of the Tribunal under section or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,

(a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and

(b) give the directions that it considers proper as a result of extending the time. 1999, c. 12, Sched. G, s. 7.

12This section would apply to the limitation period under section 56 to file an application with the Tribunal. It does not apply to section 32(1), which pertains to the applicant giving notice to the respondent of her intention to apply for one or more benefits. The notice under section 32(1) is not a notice that pertains to the applicant requiring a hearing from the Tribunal or an appeal from a decision or order of the Tribunal.

13The applicant relies on L.R. v. RSA Insurance Company of Canada, 2019 CanLII 76846 (ON LAT) in support of her position. I find that this case is distinguishable from the facts before me because at issue was whether the applicant was barred from appealing the denials under section 56 because the appeals were filed with the Tribunal more than two years after the denials. The Tribunal correctly applied section 7 of the LAT Act to the facts of that case. The Tribunal did not suggest that section 7 of the LAT Act should be applied to section 32(1).

14In my view, the analysis under section 34 is appropriate to address an applicant’s failure to comply with the timeline in section 32. The next stage of my analysis will address this.

The applicant did not satisfy the Horvath factors

15The applicant submits that she was a minor and legally incapable of making decisions for several years after the accident. She did not have the ability to hire legal counsel, nor apply for accident benefits on her own accord. She states that, “the mere fact that she was a minor at the time is reasonable reason enough to explain the delay.” She also states that she has injuries that left her with cognitive symptoms which affected her ability to focus, concentrate and find words. These injuries in the accident would make it more challenging for her to be aware of, understand, and maneuver the insurance system.

16I am not persuaded by the applicant’s explanation because it is not credible or worthy of belief. In the facts before me, the applicant alleges that she has cognitive symptoms that made it difficult for her to navigate the insurance system. The applicant’s position is not supported by the evidence. While cognitive deficits are noted in the Neuropsychological Assessment Report dated March 11, 2020 by Dr. Nicole Law, the applicant did not state at the Examination Under Oath on October 20, 2022 that her cognitive issues impacted her ability to seek accident benefits. Rather, she testified that she did not know about the benefits that were available to her at the time of the accident. She first found out about this at a family gathering years after the accident. In my view, there is an inconsistency between the applicant’s explanation and the evidence.

17The applicant further submits that there is no evidence that her mom was aware of her entitlements to accident benefits. There is no affidavit from her mother which supports this assertion. The applicant has not provided an explanation or evidence as to why her mother did not assist her with seeking accident benefits given that she was a minor who was under her care. An affidavit from her mother could have assisted in explaining the reason for the delay.

18Furthermore, even if I were to accept that she was legally incapable of making decisions for several years after the accident, it does not explain why there was a delay of approximately one year and seven months from the time that she reached the age of majority to when she notified the respondent regarding her intention to seek accident benefits. The applicant’s submissions are silent on this point.

19In previous decisions involving individuals who were minors at the time of the accident, the Tribunal has taken other mitigating factors into account such as language barriers, culture, family dynamics and the lack of automobile insurance: see M.O. v. Jevco, 2020 CanLII 63561 (ON LAT) and Blasko Novakovic v. Coseco Insurance Co, 2005 ONFSCDRS 22. In my view, the applicant has not established that there were mitigating factors that contributed to the delay.

20Without an explanation that is credible or worthy of belief, there is no need to assess the reasonableness of the explanation. In other words, the first principle is a threshold that must be met in order to engage the other principles. It is incumbent upon the applicant to provide evidence that supports her position. In my view, she has not.

CONCLUSION AND ORDER

21The applicant failed to notify the respondent of her 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. She has not provided a reasonable explanation for the delay.

22The application is dismissed.