Licence Appeal Tribunal File Number: 23-007774/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:
Stephen Wasielewski
Applicant
and
Intact Insurance Company
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR:
Ludmilla Jarda
APPEARANCES:
For the Applicant:
Stephen Wasielewski, Applicant
For the Respondent:
Nisaa Khan, Counsel
HEARD:
By Written Submissions
OVERVIEW
1Stephen Wasielewski (the “applicant”) was in an automobile accident on June 25, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (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 ISSUE IN DISPUTE
2The preliminary issues to be decided are as follows:
- Is the applicant barred from proceeding with his claim for benefits as he failed to submit the application for benefits (OCF-1) within the time prescribed in the Schedule?
- Is the applicant barred from proceeding to a hearing for non-earner benefits (“NEB”) because he failed to dispute his denial within the 2-year limitation period?
- Is the applicant barred from requesting additional treatment plans and benefits because he has passed the 260-week limitation to make a claim under s. 20 of the Schedule?
RESULT
3The applicant has not met his evidentiary burden to establish that he complied with the timeline prescribed by s. 32(1) of the Schedule, and as a result, his claim for accident benefits is barred. The application is dismissed.
ANALYSIS
Application for Accident Benefits (OCF-1)
4I find that the applicant has failed to establish, on a balance of probabilities, that he notified the respondent of his intention to apply for accident benefits within seven days after the circumstances arose that give rise to his entitlement to accident benefits, or as soon as practical after that day. Further, the applicant has failed to demonstrate that he had a reasonable explanation for failing to comply with the 7-day time limit.
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 of the benefit, or as soon as practical after that day.
6Section 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.
7The interpretation of “reasonable explanation” is guided by Horvath v. Allstate Insurance Company of Canada, 2003 ONFSCDRS 92, and was more recently reiterated in K.H. v. Northbridge General Insurance Company, 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.
8The applicant submits that he has a reasonable explanation for the delay. He explains that at the time of the accident, he was living with his father, and he claims that his father was abusive. The applicant also states that he did not know that he should have called the police or sought medical attention following the accident.
9The respondent notes that the applicant did not submit an Application for Accident Benefits (OCF-1) until May 13, 2021 and submits that the applicant should be barred from proceeding with his claim for accident benefits on the basis that this application for accident benefits was untimely. The respondent further submits that the applicant failed to provide a reasonable explanation for failing to comply with the time limit set out in s. 32 of the Schedule as required by s. 34 of the Schedule.
10I find that the evidence supports that the applicant failed to notify the respondent of his intention to apply for accident benefits within the time prescribed by the Schedule. According to the applicant, he fell out of a moving truck on June 25, 2017 and sustained injuries as a result. Although the applicant claims that he later sought medical attention, there is no evidence as to when he initially sought medical attention. In the circumstances, the applicant ought to have given notice of his intention to apply for accident benefits by no later than July 2, 2017, i.e. seven days after the circumstances arose that give rise to his entitlement to accident benefits per s. 32(1) of the Schedule. Despite this time limit, the applicant did not notify the respondent of his intention to apply for accident benefits until May 31, 2021 when he submitted an OCF-1 dated April 29, 2021.
11Further, although the applicant provided an explanation for the 1,418-day delay for giving the respondent notice, I do not find that the applicant’s explanation is reasonable. While the applicant submits that his father was abusive towards him, there is no evidence that his father prevented him from applying for accident benefits. Moreover, there is no evidence that the applicant’s accident-related injuries prevented him from complying with the seven-day time limit prescribed by the Schedule (see: Rios v. Chieftain Insurance, 2021 CanLII 124033 (ON LAT)).
12Accordingly, I find that the applicant is time-barred from pursuing his application for accident benefits.
Application for non-earner benefits (“NEB”) and for medical and rehabilitation benefits
13Having found that the applicant is barred from pursuing his application for accident benefits, it is not necessary for me to render a decision on the applicant’s claim for NEB and medical and rehabilitation benefits.
ORDER
14For the reasons outlined above, I find that the applicant has not met his evidentiary burden to establish that he complied with the timeline prescribed by s. 32(1) of the Schedule, and as a result, his claim for accident benefits is barred.
15The application is dismissed.
Released: March 18, 2024
__________________________
Ludmilla Jarda
Adjudicator