Licence Appeal Tribunal File Number: 24-005762/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:
Sreekantha Somanthan
Applicant
and
Intact Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR: Kate Grieves
APPEARANCES:
For the Applicant: Anne Jayatilake, Counsel
For the Respondent: Stuart Norris, Counsel
Heard: By Way of Written Submissions
OVERVIEW
1Sreekantha Somanthan (the “applicant”) was involved in an incident on May 11, 2023 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 Intact Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES IN DISPUTE
2The preliminary issues to be decided are:
i. Is the applicant barred from proceeding with his claim for all of the accident benefits claimed in the application as he 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?
ii. Is the applicant barred from proceeding with his claim for benefits because he failed to submit the application for benefits (OCF-1) within the time prescribed of the Schedule?
3The respondent indicated in its submissions that a further preliminary issue with respect to the applicant’s non-attendance at insurer’s examinations was withdrawn. Issue (ii) listed above was added via motion order dated September 17, 2024.
RESULT
4The applicant is statute-barred from proceeding with his application for failing to submit his application for benefits within the time prescribed by the Schedule.
ANALYSIS
Law
5Section 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.
6Once 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.
7Section 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 (“Horvath”), and was more recently reiterated in K.H. v. 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.
Background
8The applicant was involved in an accident on May 11, 2023. He notified the respondent of the accident by telephone on May 12, 2023. On May 25, 2023, the respondent sent a letter to the applicant, enclosing an Application for Accident Benefits form (OCF-1), as well as a detailed explanation of the benefits available, and instructions on how to proceed with a claim.
9The respondent sent a second letter to the applicant on July 31, 2023 again enclosing an OCF-1. The letter indicates than pursuant to section 32(5) of the Schedule, the OCF-1 must be completed and returned within 30 days after it is received.
10There was no further communication between the applicant and the respondent until February 26, 2024, when the applicant submitted the OCF-1. The respondent requested that the applicant provide a reasonable explanation for the delay in submitting the application.
11The applicant submitted a signed statutory declaration on March 11, 2024, in which he indicates that he “had open heart surgery and have ongoing health issues and was not able to do the required”.
12The respondent submits that the applicant failed to notify it and submit a completed application for benefits within the prescribed timelines pursuant to s. 32(1) and (5) of the Schedule.
13I find that the applicant notified the respondent of his intention to claim benefits as required by section 32(1). That notification prompted the insurer to send the applicant an application for benefits package on May 25, 2023. However, I find that the applicant failed to submit a completed application for accident benefits in contravention of section 32(5).
The OCF-1 was filed late
14From the evidence, it is clear that the applicant submitted his OCF-1 well outside the timeline stipulated in s. 32(5) of the Schedule.
The applicant has not established a reasonable explanation for the delay
15The applicant submits that he had a reasonable explanation for the delay, namely pre-existing health issues. The applicant submits that the disability certificate (OCF-3) “sheds light on the delay in submitting the application”. The OCF-3 indicates that the applicant had a history of diabetes and suffered from head and neck injuries from a slip and fall and a prior motor vehicle accident in 2018. In 2018, 2019 and 2022, he reportedly had corrective surgeries for degenerative disc disease in his neck. Prior to the subject accident, in March 2023, the applicant underwent a heart bypass.
16The applicant submits that the heart surgery was a major medical event, and he was still in recovery at the time of the accident. He submits that his mental health should also be considered, in light of his pre-accident surgeries and diabetes. The applicant submits that he was taking care of his health and submitted the OCF-1 as soon as was practicable to him.
17However, the applicant does not explain how his pre-accident conditions or recovery from his heart surgery prevented him from submitting a completed application. The only medical evidence relied upon by the applicant in his submissions is the disability certificate.
18Other evidence submitted by the respondent shows that the heart surgery took place on March 23, 2023. The respondent points to medical records that indicate that the applicant appears to have been recovering well by the end of May 2023. The cardiologist noted that he should increase his walking from 10 minutes a day to 45-60 minutes a day. The fact that the applicant was well enough to be driving his vehicle at the time of the accident also suggests that he was in recovery.
19The applicant submits that his mental health should be considered, but fails to point to how or why his mental health prevented him from completing and submitting an application form. He has not provided any medical evidence of any mental health issues that he was experiencing as a result of his conditions.
20The applicant has not directed me to any evidence in support of his submissions that either his physical or mental health rendered him unable to complete his application. I find that the applicant has not met his onus to establish that he had a reasonable explanation for the delay in submitting a completed OCF-1.
21The applicant’s delay in applying for benefits has resulted in prejudice to the respondent. The purpose of the timeline set out in the Schedule is to allow the insurer to conduct contemporaneous assessments, gather medical records, and conduct surveillance if necessary.
22The applicant has not provided a reasonable explanation for the delay in submitting the OCF-1 which has resulted in prejudice to the respondent. The applicant has not established hardship capable of outweighing that prejudice. He has not demonstrated that the Tribunal should relieve him from the consequences of his failure to act.
Section 55
23Pursuant 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.
24As outlined above, I find that the applicant did not submit his 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 his application before the Tribunal.
ORDER
25The applicant has not provided a reasonable explanation for failing to apply for accident benefits within the time limits prescribed by the Schedule. His application is barred by s. 55(1)1 of the Schedule from proceeding with his application and is accordingly dismissed. The Tribunal shall vacate any date that has been scheduled for the substantive issue hearing.
Released: November 8, 2024
___________________________
Kate Grieves
Adjudicator