Jandu v. Allstate Insurance Company of Canada, 2024 CanLII 121102

Citation: Jandu v. Allstate Insurance Company of Canada, 2024 ONLAT 24-001290/AABS-PI

Licence Appeal Tribunal File Number: 24-001290/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:

Manjit Jandu

Applicant

and

Allstate Insurance Company of Canada

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Neha Kohli, Paralegal

For the Respondent:

Alexei Batten, Counsel

Heard:

By Way of Written Submissions

OVERVIEW

1Manjit Jandu (the “applicant”), was involved in an automobile accident on February 11, 2022, 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 Allstate Insurance Company of Canada (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 their claim for benefits as they failed to submit the application for benefits (OCF-1) within the time prescribed by the Schedule?

RESULT

3The applicant may proceed with his claim for benefits.

PROCEDURAL ISSUE

4The respondent submits that paragraphs 14 and 15 of the applicant’s submissions should be struck as they refer to settlement communications between the parties. I agree with the respondent that the information is settlement privileged. Section 15(2)(a) of the Statutory Powers Procedure Act prohibits the Tribunal from admitting any evidence that is subject to privilege. Settlement discussions, whether successful or not, are to be confidential to promote more fruitful and open-minded discussions between the disputing parties and the privilege may be set aside only in exceptional circumstances. Despite the applicant’s ability to make a sur-reply pursuant to the Case Conference Report and Order of July 2, 2024, and address this request, he did not do so.

5I have accordingly struck paragraphs 14 and 15 from the applicant’s submissions, along with the documents referred to in those paragraphs.

ANALYSIS

Background

6The respondent submits that on February 15, 2022, it provided a letter to the applicant enclosing an OCF-1. On March 1, 2022, the applicant advised the respondent via telephone that he had not received the package with the OCF-1. The respondent submits that it re-sent the package and granted the applicant an extension. On April 8, 2022, the respondent spoke with the applicant and advised him that it had not received the completed OCF-1. The applicant was advised that, even though he had a previous accident benefit claim with a completed OCF-1, he would also need to complete one for this claim as the details would be different.

7On April 11, 2022, the applicant advised the respondent that he had not received the package with the OCF-1. He also advised that he does not check his emails. The respondent submits that it re-sent the forms again that day and granted the applicant an extension to complete them. On April 18, 2022, the applicant told the respondent that he had not received the forms yet. The respondent submits that it re-sent the forms on May 1, 2022.

8On June 22, 2022, the applicant again advised the respondent that he had not received the forms. The respondent submits that it re-sent the package and granted an extension until July 15, 2022. On July 6, 2022, the applicant left a message for the respondent advising that he had received the forms and needed assistance. The respondent returned the message and explained each form.

9The applicant submits that he retained counsel on July 7, 2022, and that the OCF-1 was sent to the respondent via regular mail on July 29, 2022. The OCF-1 enclosed in the letter was also dated July 29, 2022. However, the respondent submits that it did not receive the OCF-1 until June 19, 2024, when counsel for the applicant emailed counsel for the respondent with a copy of the letter of July 29, 2022, and its enclosures.

The Law

10Section 55(1)(1) of the Schedule states that an insured person shall not apply to the Tribunal under s. 280(2) of the Insurance Act where they have failed to submit an application for benefits within the times prescribed by the Schedule.

11Upon being notified of a person’s intention to apply for benefits, pursuant to s. 32(2) the insurer is required to promptly provide the person with the appropriate application forms.

12Section 32(5) states that an insured person shall submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms. The applicant bears the burden of proving that he submitted his application within this timeframe.

13Under s. 34, a person’s failure to comply with the above time limit does not disentitle them to a benefit if they have a reasonable explanation for the delay. The onus is on the applicant to establish a reasonable explanation for the delay. The guiding principles of what constitutes a “reasonable explanation” were summarized in K. H. v. Northbridge, 2019 CanLII 101613, as follows:

i. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.

ii. The onus is on the insured person to establish a “reasonable explanation”.

iii. Ignorance of the law alone is not a “reasonable explanation”.

iv. 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.

v. The lack of prejudice to the insurer does not make an explanation automatically reasonable.

vi. 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.

When did the applicant send the OCF-1 to the respondent?

14The applicant argues that the OCF-1 was submitted to the respondent in a letter dated July 29, 2022. The respondent submits that it never received this letter and did not receive the OCF-1 until June 19, 2024. For the following reasons, I agree with the applicant that the letter enclosing the OCF-1 was submitted on July 29, 2022.

15I note that, even if the respondent did not receive the OCF-1, the applicant’s obligation under the Schedule is to submit the OCF-1, not to ensure the respondent received it.

16The respondent argues that there is no proof that the letter was actually sent on July 29, 2022, as the applicant has not provided an email, fax, or proof of postage. I do not find this argument compelling, as I do not accept that a letter sent by regular mail would necessarily have a paper trial indicating the date that it was posted.

17The only evidence before me that the letter may not have been received is that the respondent’s log notes do not indicate that the OCF-1 was received, and that the respondent advised the applicant on July 7, 2023, that it had not been received. However, this is not necessarily determinative of the issue, as the respondent may not have received it or logged it even if it was sent.

18As the only paper trail is a copy of the letter and the OCF-1, I will also look to the actions of the applicant. I find that there is compelling evidence that the applicant was under the impression that the OCF-1 was received by the respondent, which indicates to me that the letter was sent.

19Firstly, the applicant submits that enclosed alongside the OCF-1 was a direction from his counsel, also dated July 29, 2022, advising the respondent that they had been retained, as well as requesting that the respondent direct all correspondence to his counsel. The applicant argues that if the direction was not received by the respondent, there would have been no communication between the respondent and the applicant’s legal representative. On December 28, 2022, the respondent provided a copy of its file to the applicant’s counsel. There is no indication in that letter that the respondent was unable to communicate with the applicant’s counsel. I accept at the very least that the applicant believed he sent the respondent the direction, which was signed on the same day and sent in the same package as the OCF-1.

20The respondent submits that the applicant’s argument rests on the unproven assumption that there were no other relevant communications between them. Although the onus is on the applicant to prove his case, he cannot prove a negative. If there was correspondence that contradicted the applicant’s claim, it was incumbent on the respondent to provide that evidence in its defence. It did not do so.

21Secondly, the applicant submitted an OCF-23 on October 13, 2022. Although the respondent suggests that it is unclear why the applicant waited to so long to submit his first request for treatment, I do not agree that this means the applicant did not submit the OCF-1. I also reject the respondent’s insinuation that the applicant did send in the OCF-1 because he did not contact the respondent to request a response to it. I have not been directed to a requirement in the Schedule or practical reason for the applicant to have done so. Instead, the submission of the OCF-23 indicates to me that the applicant believed he had sent in his application for benefits and was therefore entitled to request funding for treatment.

22While this is not necessarily proof that the respondent actually received the OCF-1, I find that the applicant’s actions were not indicative of a person who neglected to send it. As I have no reason to believe that the letter was not sent, was sent to the wrong address, or was sent on a different date, I am persuaded that the applicant submitted the OCF-1 to the respondent on July 29, 2022.

Did the applicant breach s. 32(5)?

23The respondent submits that it sent the letter enclosing the accident benefits package, including the OCF-1, by mail on June 22, 2022. The applicant has not advised what date he received the letter. Section 64(18) of the Schedule states that in the absence of evidence to the contrary, a person is deemed to receive anything delivered by ordinary mail on the fifth business day after the day the document is mailed. The respondent has not provided me with the actual letter of June 22, 2022, and has just produced an email to its internal printing department from that date directing it to send a letter. However, I find that even if the respondent’s letter was sent on June 22, 2022, the applicant would have been deemed to have received it on June 29, 2022.

24As I have found that the applicant submitted the OCF-1 on July 29, 2022, which was within 30 days after he would have been deemed to receive it, I find that he is not in breach of s. 32(5) of the Schedule.

25The respondent submits that the forms were also provided to the applicant on February 15, April 11, and May 1, 2022, and therefore even if the OCF-1 was submitted on July 29, 2022, the applicant was still in breach of s. 32(5). However, only the February letter is before me, and otherwise the respondent only produced the adjusters’ log notes and emails directed to the respondent’s printing department requesting them to send the forms to the applicant. I do not have a copy of the other letters.

26While the applicant has the burden of proving that he complied with s. 32(5), the respondent has the burden of proving that it sent the application forms in accordance with s. 32(2). In my view, this means the forms must have been sent to the correct address. I have reviewed the February letter and compared it with the address on the OCF-1, and it appears that the respondent misspelled the applicant’s street name and that the postal codes are different. Further, I am not persuaded by the internal emails to the printing department and adjuster’s notes alone that the other letters were sent, or that they were sent to the correct address, especially as the applicant advised the respondent multiple times that he did not receive them. I am accordingly not convinced that the applicant received the forms prior to June 22, 2022.

ORDER

27The applicant may proceed with his claim for benefits.