Licence Appeal Tribunal File Number: 23-004839/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:
Hakima Rashid
Applicant
and
Economical Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Joshua Meshack, Counsel
For the Respondent:
Suhasha Hewagama, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Hakima Rashid, the applicant, was involved in an automobile accident on November 21, 2021, 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, Economical Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES IN DISPUTE
2The preliminary issue in dispute is:
a) Is the applicant barred from proceeding to a hearing as they 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 date?
RESULT
3I find that the applicant is statute-barred from proceeding with her application.
ANALYSIS
Background and parties’ positions
4The applicant was involved in an automobile accident on November 21, 2021. On April 7, 2022, the respondent first became aware of the applicant’s intention to apply for accident benefits when it received an Application for Accident Benefits (“OCF-1”) and Permission to Disclose Health Information (“OCF-5”) from the applicant’s counsel.
5The respondent submits that the applicant failed to notify the respondent of her intention to apply for statutory accident benefits until 137 days after the accident, well-outside the time limit set out in s. 32(1) of the Schedule. The respondent further submits that the applicant failed to provide a reasonable explanation for the delay pursuant to s. 34 of the Schedule.
6The applicant submits that she has a reasonable explanation for the delay. She contends that her accident-related injuries were latent and “manifested later”, that she was unsophisticated in her knowledge of the accident benefits process, and that there were personal circumstances beyond her control.
The Law
7Section 32(1) of the Schedule provides that a person who intends to apply for accident benefits shall notify the insurer of their 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 after that day.
8Section 55(1) provides that the applicant shall not apply to the Tribunal if she has not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted an application for the benefit within the times prescribed by the Schedule.
9However, s. 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, 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:
a. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.
b. The onus is on the insured person to establish a “reasonable explanation.”
c. Ignorance of the law alone is not a “reasonable explanation”.
d. 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.
e. The lack of prejudice to the insurer does not make an explanation automatically reasonable.
f. 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?
10The applicant submits that there is a two-year deadline to make accident benefit claims under the Schedule, and that her application was submitted within this period. However, I agree with the respondent that the period to make a claim for accident benefits under the Schedule, is not a two-year timeframe. Rather, pursuant to s. 32(1), the applicant must notify the insurer 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.
11Upon review of the evidence before me, it is evident 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 137 days after the accident, well-outside of the stipulated timeframe.
12I must now determine whether pursuant to s. 34 of the Schedule, she has a reasonable explanation for the delay.
The applicant has not established a reasonable explanation for the delay
13The respondent submits that the explanation it had received from the applicant is not credible or worthy of belief. The respondent relies on the applicant’s Examination Under Oath (“EUO”) transcript dated January 12, 2023. When asked for an explanation for the delay in making a claim, the applicant responded that she “didn’t know” that she could make a claim for accident benefits. The respondent argues that this explanation is not credible, as the applicant admitted that she knew her sister had made a claim for accident benefits following a motor vehicle accident in 2017, when they had been living together. The applicant further admitted to not taking any steps to inquire as to the possibility of making a claim.
14The respondent further points to the applicant’s level of activity and functional capacity following the accident, in arguing that it is not credible that the applicant intended to apply for accident benefits during the delay. During the delay, the applicant returned to work the day after the accident, travelled to Iran to get married, returned to Canada to her regular work duties, and consulted her family physician for unrelated health issues without mentioning the accident. The respondent argues that the applicant did not indicate any intention to pursue medical attention or apply for accident benefits, until she retained counsel and submitted an OCF-1. However, the respondent submits that ignorance of the law is not a “reasonable explanation”.
15The applicant submits that it was clear from the emergency room records and her statements at the EUO that she suffered from low back pain, a head injury, memory loss and dizziness after the accident, and had to take time off work in hopes of the symptoms resolving on their own. The applicant further submits that she has never owned a car, and was simply a passenger of the vehicle her sister was driving. As such, she was unaware that she was able to claim accident benefits. She was further delayed, as soon after the accident she travelled to Iran to get married, and that it was only upon her return and her sister’s return to Canada, that they began to search for a lawyer.
16In addition, the applicant argues that she had accident-related psychological injuries that were latent and “manifested later”. The applicant further argues that her reports of driving anxiety, confusion, a lack of understanding about the nature of the injuries she sustained, are all indicative of possible injuries.
17Upon review of the evidence before me, I find that the applicant has not provided an explanation for the delay that is credible or worthy of belief. With respect to her argument that she was unaware that she could pursue a claim, the applicant conceded in her EUO that she knew her sister had made a claim for accident benefits following a previous accident in 2017. The applicant was living with her sister at the time of the accident, and travelled to Iran with her.
18Although the applicant submits that she did not discuss bringing forward a claim with her sister until February/March 2022, if the applicant was experiencing the serious symptoms she claimed to have, I do not find it credible that she would not have discussed a potential claim with her sister, until February/March 2022. I further agree with the respondent, and its cited Tribunal decision Abdi v Travelers Canada, 2020 CanLII 123274 (ONLAT), that ignorance of the law is not a reasonable explanation pursuant to s. 34 of the Schedule.
19The applicant further raises two additional, somewhat conflicting arguments to explain the delay. One was that she did suffer injuries immediately after the accident, but that she hoped that they would resolve on their own. The applicant further argues that she had latent injuries that only manifested later. I do not find either argument to be a reasonable explanation for the delay.
20Firstly, the applicant submits that she suffered from low back pain, dizziness and memory loss soon after the accident, and as such, was required to take days off work. However, the applicant has not led any medical evidence in support of the claim that these impairments prevented her from notifying the respondent. The applicant solely relies on her general statements at the EUO. No employment records were tendered to indicate any time off after the accident. Although the applicant submits clinical notes and records (“CNRs”) from Dr. M. Matti, she does not direct me to any specific CNR entry that discusses dizziness or memory loss soon after the accident. In fact, the applicant did not attend at Dr. Matti’s offices after the accident, until a January 31, 2022 visit for unrelated fertility concerns.
21Further, although the applicant argues that she had latent psychological injuries that only manifested later, no medical evidence was provided in support of this claim. I agree with the respondent that the applicant has not provided any specific submissions as to her psychological injuries, when they manifested or how they impaired her ability to notify the respondent of her intention to apply for accident benefits. The CNRs of Dr. Matti do not appear to make any reference to psychological impairments post-accident.
22Although the applicant’s statements in the EUO included self-reports of psychological impairments such as anxiety, depression, dizziness, memory loss and that she was taking prescription medication, no such references are found in the medical record provided. The applicant stated at the EUO that she had obtained a new doctor, Dr. Ali, but no medical records from Dr. Ali were submitted as evidence in this hearing. The applicant’s statements in the EUO are vague and do not provide sufficient information to persuade me that there is a reasonable explanation for the delay without corroborating medical evidence. Particularly as the onus rests with the applicant to prove that the delay was reasonable.
23For the reasons set out above, I find the applicant did not notify the insurer of the accident or apply for benefits within the timelines prescribed by the Schedule and has not provided a reasonable excuse for the delay. Accordingly, I find she is statute-barred pursuant to s. 55(1) of the Schedule from proceeding with her application before the Tribunal.
ORDER
24This application is statute-barred pursuant to s. 55(1) of the Schedule.
25The application is dismissed and the substantive hearing shall be vacated.
Released: February 12, 2024
Ulana Pahuta
Adjudicator