Hemmings v. Wawanesa Mutual Insurance Company, 2024 CanLII 108220

Citation: Hemmings v. Wawanesa Mutual Insurance Company, 2024 ONLAT 24-005844/AABS-PI

Licence Appeal Tribunal File Number: 24-005844/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:

Amanda L Hemmings

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

Vice-Chair: Tyler Moore

APPEARANCES:

For the Applicant: Paul El-Khalili, Paralegal David E Preszler, Counsel

For the Respondent: Jason H Goodman, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Amanda L Hemmings (“the applicant”), was involved in an automobile accident on June 13, 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 Wawanesa Mutual Insurance Company (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided is:

i. Is the applicant barred from proceeding with his claim for benefits as they failed to submit the application for benefits (OCF-1) within the time prescribed in the Schedule?

PROCEDURAL ISSUE

3The applicant submits that this preliminary issue hearing should not proceed because certain important pieces of evidence are missing and the Tribunal’s case conference report and order (“CCRO”) dated September 11, 2024 does not reflect what actually occurred during the case conference. The applicant’s representative submits that he requested both a video conference preliminary issue hearing and the right to introduce an affidavit from the applicant, but both requests were outright rejected by the Tribunal. As a result, the applicant’s credibility cannot be fully assessed.

4The respondent did not address the applicant’s procedural position in its written submissions.

5I find that the applicant is not prejudiced by proceeding with a preliminary issue hearing. The applicant has not demonstrated how and why a videoconference hearing or affidavit from the applicant are necessary to address the applicant’s credibility, and why the applicant’s testimony captured by the January 2024 examination under oath (“EUO”) combined with the evidence on file would not suffice. There is also no indication that the applicant requested an amendment to the CCRO to address any inconsistencies. For these reasons, I have proceeded with the preliminary issue hearing.

RESULT

6The applicant is statute-barred from proceeding with her application.

ANALYSIS

The Law

7Section 32(1) of the Schedule requires an insured person to inform an insurer of their intention to claim accident benefits within seven days of the accident, or as soon as practicable after.

8Once 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, if applicable (s. 32(2)). Pursuant to s. 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.

9Section 34 states that if the insured person does not comply with the time limits prescribed under Part VIII of the Schedule, the insured person may still be entitled to benefits if they have a reasonable explanation for the delay.

10Pursuant to section 55(1)1, an insured person may not apply to the Tribunal if they have not notified the insurer of the circumstances giving rise to a benefit or has not submitted an application for the benefit within the times set out in the Schedule.

11The 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. v. 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.

Background

12The applicant was involved in a previous accident on May 18, 2021. She was hospitalized for four days and sustained multiple spinal fractures and a liver laceration as a result. The applicant was in a halo brace to stabilize her neck at the time of the subject June 13, 2021 accident.

13The applicant submits that the June 13, 2021 accident was relatively minor, but the version of events that caused the accident is unclear. The driver either hit the accelerator instead of the brakes when trying to park, or she went over a speed bump and lost control of the vehicle. Either way, the vehicle needed to be winched by a tow truck from where it was resting in the bushes. The accident was never reported to police.

14The only documented contemporaneous reference to the June accident is a Social Work Trauma Clinic Note dated June 18, 2021. In that note, Janna Di Pinto, social worker, reported that the applicant had not contacted the insurance company related to the May and June accidents. Ms. Pinto explained the accident benefits process to the applicant and indicated that she would send her additional information.

Submissions

15The respondent submits that the applicant failed to notify the insurer of her intention to apply for benefits, or submit an OCF-1 form until November 21, 2023, which was 891 days after the alleged June 13, 2021 accident. According to the respondent, the applicant did initially submit the OCF-1 form to its bodily injury department instead of its accident benefits department in February 2023. The OCF-1 was received by the respondent’s accident benefits department on November 21, 2023.

16The respondent relies on the applicant’s EUO dated January 5, 2024 to support the fact that the applicant had no explanation for the delay in notifying the respondent, other than she did not believe the subject accident was ‘relevant’. While the applicant submits in her written submissions that the driver of the vehicle would not provide her insurance information and that the driver tried to convince the applicant that her injuries were caused by the earlier May 2021 accident, the respondent argues that this is inconsistent with the applicant’s responses during EUO. The respondent also submits that the applicant’s responses during the EUO reflects that the applicant did not believe the driver had reported the accident to her insurer as there was no damage to the vehicle aside from a few scratches, despite the fact that the vehicle had to be removed from where it was resting.

17According to the respondent, the applicant was familiar with the process of applying for accident benefits as she presently has an open accident benefits claim with Gore Mutual Insurance Company arising from the May 2021 accident. The applicant retained a legal representative related to the May 2021 accident and submitted an OCF-1 around August 2021 in relation to that accident. The respondent submits that the applicant did not submit an OCF-1 in relation to the June 2021 accident, despite being familiar with the process, and having retained legal representation following both accidents.

18The respondent argues that it is irrelevant whether the applicant had access to the driver’s insurance information after the June 2021 accident. She could have applied to the Motor Vehicle Accident Claims Fund but did not. The respondent acknowledges that the applicant has a longstanding history of substance abuse until she allegedly became sober in October 2022, however, no substitute decision maker or litigation specialist has ever been appointed. The respondent submits that the applicant has failed to meet her onus of providing a reasonable explanation for her failure to advise the respondent of the circumstances giving rise to the June 2021 accident.

19The applicant submits that the accident was never reported to police, and it is unclear whether the driver of the vehicle reported the accident to the respondent. The applicant submits that she was never contacted by the respondent and did not receive an application for accident benefits at any time following the accident. It was not until August 2022 that the applicant’s June 2021 accident was discovered by the applicant’s representative, who then attempted to obtain the insurance information of the driver of the vehicle. According to the applicant’s written submissions, the driver of the vehicle for the June 2021 accident refused to provide her insurance information because the driver felt that any injuries were attributable to the May 2021 accident and the driver did not want the applicant to make a claim against her insurance for fear of premium increases.

20The applicant argues that she is an unsophisticated person who was abusing illicit drugs up until October 2022, after which time she abstained. She also argues that she had already sustained what she alleges to be catastrophic impairments as a result of the May 2021 accident.

21According to the applicant, she did not receive the insurance information from the driver of the June 2021 accident until early 2023. Upon receipt, and within 30 days, she submitted an OCF-1 dated January 11, 2023 to the respondent. The applicant submits that she did not have any other insurer to make an application to at the time of the June 2021 accident because she was an uninsured person.

22The applicant argues that there is no prejudice to the respondent because she has an open and ongoing accident benefits claim with Gore Mutual in respect of the May 2021 accident that would include various relevant medical evidence. The applicant, however, has exhausted all of her accident benefit entitlement in respect of the May 2021 accident, and as a result, a failure to accept this application will result in significant prejudice to her and her recovery.

The OCF-1 was filed late

23From the evidence, it is clear that the applicant submitted her OCF-1 well outside the timeline stipulated in s. 32(5) of the Schedule. Even if I accept that the OCF-1 was submitted to the respondent in February 2023 when it was received by its bodily injuries department, the OCF-1 was still submitted more than a year and a half late. However, I must consider whether the applicant has a reasonable explanation for the delay in submitting her OCF-1 pursuant to s. 34 of the Schedule.

The applicant has not established a reasonable explanation for the delay

24The first guiding principle in Horvath sets out that an explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed. I find that there are inconsistencies between the applicant’s EUO and the written submissions of the applicant’s representative with respect to the explanation for the delay in submitting an OCF-1. These inconsistencies call into question the credibility of the applicant’s explanation for the delay and whether the applicant has satisfied that first guiding principle in Horvath.

25Even if I accept that the applicant’s explanation is credible, it is still inconsistent. I prefer the evidence contained in the applicant’s EUO testimony as opposed to the subsequent explanations for the delay contained in the written submissions and letters of the applicant’s representative which contradict the EUO testimony. The EUO testimony was not pre-empted, it came directly from the applicant, and it was provided under oath.

26I have also taken into account the personal characteristics and ‘reasonable person’ standard set out in Horvath. I accept that the applicant is unsophisticated and that she was abusing illicit drugs until October 2022, but she alleges that she stopped using illicit drugs well before her EUO testimony. I am also persuaded by the evidence that despite being an unsophisticated person, the applicant was able to retain legal representation and submit an OCF-1 around August 2021 in relation to the May 2021 accident. The applicant was advised by Ms. Pinto shortly after disclosing the May and June 2021 accidents about the accident benefits process and steps to be taken to obtain legal representation. The evidence supports that the applicant was able to follow these recommendations and instructions to be able to submit that OCF-1 around August 2021 and retain legal representation.

27The applicant submits that the evidence is unclear regarding whether the driver of the vehicle of the June 2021 accident ever reported the accident to the respondent. If she did, then the applicant questions why the respondent did not contact the applicant or send her an OCF-1 to submit within 30 days. I am not satisfied that the driver did report the accident. No evidence has been presented that would confirm this, and I accept the applicant’s EUO testimony that she did not believe the driver of the vehicle reported the accident to the respondent as there was no damage to the vehicle, aside from a few scratches.

28For these reasons, I find that the applicant has not met her onus to establish that she had a reasonable explanation for the delay as set out in Horvath.

Section 55

29Pursuant to s. 55(1)1 of the Schedule, an insured person shall not apply to the Tribunal under subsection 280(2) of the Insurance Act if the insured person has not submitted an application for the benefit within the times prescribed in s. 32.

30As outlined above, I find that the applicant did not submit her completed OCF-1 within the timelines prescribed by the Schedule and has not provided a reasonable explanation for the delay. Accordingly, I find that the applicant is statute-barred from proceeding with her application.

ORDER

31The applicant has not provided a reasonable explanation for failing to apply for accident benefits within the time limits prescribed by the Schedule. Her application is barred by s. 55(1)1 of the Schedule from proceeding with her application and is accordingly dismissed.