Licence Appeal Tribunal File Number: 24-001323/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:
Bonnie-Frances Marek
Applicant
and
Economical Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Natasha Anand, Counsel
For the Respondent:
Yann Grand-Clement, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Bonnie-Frances Marek (the “applicant”) was involved in an incident on or around October 18, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied benefits by Economical 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 issues are:
i. Is the applicant barred from proceeding to a hearing as the applicant 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 the claim for benefits as the applicant failed to submit the application for benefits (OCF-1) within the time prescribed by the Schedule?
RESULT
3The applicant is barred from proceeding to a hearing pursuant to section 55(1) as she failed to submit the application for benefits within the timelines prescribed in section 32(5) of the Schedule.
ANALYSIS
Section 32(1) and (5)
4Section 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.
5Pursuant to section 32(5) the applicant is required to submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms.
6Section 34 states that if the insured person does not comply with those time limits, the insured person may still be entitled to benefits if they have a reasonable explanation for the delay.
7Pursuant 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 have not submitted an application for the benefit within the times set out in the Schedule.
8The interpretation of “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada, FSCO A02-000482, June 9, 2003, 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.
The applicant failed to comply with section 32(1) and (5)
9The accident occurred on October 18, 2019. The applicant first notified the respondent of the accident on December 10, 2019 and the accident benefit package was sent to the applicant the same day.
10According to the log notes, on January 8, 2020 the applicant contacted the handling adjuster and reported that she required assistance to go through the application for step-by-step. She was struggling with completing details such as her name, address etc. She reported that she had been in two previous head-on collisions and had a catastrophic brain injury, and that the subject accident had exacerbated her past injuries.
11The applicant submits that she did send the OCF-1. However, she fails to indicate when or by what means the OCF-1 was submitted (email, fax, regular mail etc.), or any evidence to support (an email, fax confirmation, courier slip etc.) to support that she did in fact send the OCF-1.
12Log notes suggest three attempts to contact the applicant by telephone in 2020 without a response, leading to closure of the file in September 2020.
13The applicant first retained counsel (a different representative) in the summer of 2021. The respondent provided the representative with a copy of the file by letter dated February 8, 2022. On May 25, 2022 the applicant filed an application to the Tribunal. By letter dated August 15, 2022 the respondent advised that it had been almost three years since the accident, and to date an OCF-1 still had not been received, therefore she was not eligible for accident benefits.
14In December 2022, the applicant retained her current representative. On January 5, 2022 the respondent denied payment of a treatment invoice on the basis that the OCF-1 had not been received. An OCF-1 was finally submitted to the respondent on February 3, 2023.
The applicant has not provided a credible explanation for the delay in submitting the OCF-1
15I find that the applicant’s submission is not credible. The applicant submits that she did in fact complete and submit an OCF-1, and simultaneously argues that she has a reasonable explanation for the delay, that her medical condition prevented her from completing and submitting it in a timely manner. The applicant submits that she was still actively treating a pre-accident catastrophic brain injury, which impeded her from notifying the insurer within the 7 days, but she did so as soon as practicable.
16The applicant submits that and further, that the respondent waived reliance upon the requirements of section 32(1) and (5). She submits that the respondent ought to have raised the 7-day delay as an issue when she contacted the respondent in December 2019 or January 2020.
17The applicant submits that at the time she was to submit the OCF-1 she was suffering from cognitive impairments that limited her ability to understand and complete tasks. She submits that she did not have a legal representative at the time, and the respondent owed her a duty to assist her with the forms and to ensure that she was aware of any deadlines. The applicant submits that, by its conduct, the respondent waived the time limits or accepted that she had a reasonable excused.
18I do not find that explanation credible. The respondent did assist her with completing the forms over the phone, as documented in the log notes. It indicated in two subsequent letters on February 20 and February 26, 2020 that the OCF-1 had not been received. Three attempts were made to contact her by telephone, but the file was ultimately closed given the lack of communication. When the legal representative was ultimately retained, a copy of the accident benefits file was provided on February 8, 2022.
19Even if I accept the submission that the applicant had a brain injury that made it difficult to complete this task, this does not explain why there was still a further six month delay in the submission of the OCF-1 after the respondent notified the applicant and her counsel again in August 2022 that she was not eligible for benefits as no OCF-1 had been submitted. The OCF-1 still was not submitted until February 2023.
20There is no explanation for the delay at the very least, between August 2022 and February 2023 when the applicant had legal representation, and both she and her representative were advised that the OCF-1 remained outstanding and therefore she was not entitled to benefits. Having found that there is no credible explanation for the delay, no further analysis of its reasonableness is required.
21Having found that the claim is barred pursuant to section 55(1) for non-compliance with the time limits in section 32(5), it is not necessary to analyse whether the claim is barred for non-compliance with section 32(1).
ORDER
22The applicant is barred from proceeding with her application pursuant to section 55(1) of the Schedule for failure to comply with the time limits set out in section 32(5).
23The application is dismissed.
24The Tribunal shall vacate any date that has been scheduled for a substantive issue hearing. The Tribunal file will be closed.
Released: December 16, 2024
___________________________
Kate Grieves
Adjudicator