Licence Appeal Tribunal File Number: 23-004307/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:
Anita Balint
Applicant
and
Economical Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Serena Rhyman, Paralegal
For the Respondent:
Jonathan B. White, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Anita Balint, the applicant, was involved in an automobile accident on December 10, 2019, 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 the respondent, Economical Insurance Company and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES IN DISPUTE
2The preliminary issue to be decided is:
a) Is the applicant barred from proceeding with her claim for benefits as she has failed to submit her application within the time prescribed by the Schedule?
RESULT
3The applicant has not provided a reasonable explanation for failing to apply for accident benefits within the timelines prescribed by the Schedule. Her application is barred from proceeding under s. 55(1)1 of the Schedule and is accordingly dismissed.
ANALYSIS
Background and parties’ positions
4The applicant was involved in an accident on December 10, 2019, when she was driving a vehicle insured by Cooperator’s Insurance Company (“Cooperators”). One of the other vehicles involved in the accident was insured by the respondent. The applicant initially submitted an application for benefits (“OCF-1”) to Cooperators on May 31, 2021. Cooperators declined the application on the basis that it had canceled their policy with the applicant prior to the accident. The applicant subsequently withdrew her application with Cooperators and submitted an OCF-1 to the respondent on September 14, 2021.
5The respondent submits that the applicant should be barred from proceeding with her application, since she failed to apply for accident benefits in accordance with the Schedule. It argues that the applicant did not provide notice of her intention to apply for application benefits, until 21 months after the accident, well-outside the timeline prescribed by s. 32(1) of the Schedule. It further submits that to date, the applicant has not provided a completed Disability Certificate (“OCF-3”), which is required for a “completed” application. As such, the respondent submits that the applicant has failed to provide a completed application within the timelines prescribed by s. 32(5).
6The applicant does not dispute that she has not provided an OCF-3 or that she failed to notify the respondent in a timely manner of her intention to apply for accident benefits. However, she takes the position that she has a reasonable explanation for the delay pursuant to s. 34 of the Schedule. As such, the applicant requests that she be permitted to proceed with her application.
The Law
7Section 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.
8Pursuant to section 32(5) of the Schedule, the applicant must submit a completed and signed application for benefits to the respondent within 30 days after receiving the forms. Section 36(2) of the Schedule, states that an applicant for a specified benefit must submit a completed OCF-3 with her application.
9Section 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.”
10The applicant does not dispute that she failed to provide an OCF-3 and has failed to give notice of her intention to apply for accident benefits in accordance with the timelines prescribed by s. 32(1) and (5). Rather, the dispute centres on whether the applicant’s explanation for her delay in applying for accident benefits is a reasonable one.
The applicant has not established a reasonable explanation for the delay
11The applicant submits that due to her lengthy history of drug abuse, mental illness, eviction and homelessness, she lacked the resources to pursue her accident benefits claim. The applicant further notes that she was “involved with the law and under the care of an officer”. As a result of her lack of resources, the applicant argues that she struggled with communicating with her legal representative resulting in the delay in submitting her OCF-1. The applicant further notes that the priority dispute between the insurers contributed to her delay.
12The applicant cites the Tribunal decision R.C. v The Co-operators General Insurance Company, 2020 CanLII 98748 (ON LAT), submitting that the Tribunal found in similar circumstances, that mental illness, incarceration, homelessness and drug addiction, were found to be a reasonable explanation for the claimant’s delay in applying for benefits.
13The respondent submits that the explanations cited by the applicant for the delay are not reasonable or credible. It argues that the evidence provided by the applicant does not support her claim that she was unable to advance her application, and that the decision cited by the applicant, R.C. v The Co-operators, is clearly distinguishable on its facts.
14The 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. vs Northbridge, 2019 CanLII 101613 (ON LAT). The guiding principles are summarized as follows:
a. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.
b. The onus is on the insured person to establish a “reasonable explanation.”
c. Ignorance of the law alone is not a “reasonable explanation”.
d. 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.
e. The lack of prejudice to the insurer does not make an explanation automatically reasonable.
f. 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.
15In my view, the applicant has not met her evidentiary burden to establish a credible and reasonable explanation for her delay. The applicant relies on the clinical notes and records (“CNRs”) of Dr. Michelle Anderson-Kay, in support of her claim that she was delayed by almost two years in notifying the respondent, due to mental illness, eviction and homelessness, interactions with the police and a history of drug abuse. I am not persuaded by this evidence, that these factors prohibited the applicant from applying for accident benefits between the date of the accident, December 10, 2019 and September 14, 2021, when she submitted her OCF-1.
16I agree with the respondent that the family physician’s CNRs only include five entries post-accident, and only two during the period of delay. From December 2019 to September 2021, the CNR records report an unrelated doctor’s visit relating to a fall and infection, and reports of shoulder and neck pain with a referral to a physiotherapist. Although in her submissions the applicant specifically cites the fact that she could not communicate with her legal representative as her phone had been stolen five times, the CNR entry referencing this claim was from November 23, 2022, more than a year after she had initiated her claim, with no reference to when her phone had been stolen. No further evidence was provided in support of this claim. As such, I do not find that it is a reasonable explanation for her purported inability to notify the respondent between December 2019 to September 2021.
17I further do not see any reference in the CNRs to the applicant being homeless during the period of the delay, or that she had been struggling with incarceration or difficulties with the police. While I do see limited references to the applicant’s prior history of drug addition, bipolar disorder and depression in the CNRs, none of these entries are during the period in question. The applicant has not established how her prior history of drug addition or mental health concerns limited her ability to apply for accident benefits from December 2019 to September 2021.
18The applicant has also submitted email correspondence, which she argues shows that she was unable to communicate with her legal representative or properly execute documents as she “did not have a steady address”. I agree with the respondent that the submitted correspondence is insufficient evidence of this claim. The email correspondence was not between the applicant and her representative, but rather, between the applicant’s legal representative and a different passenger. Moreover, the emails simply discuss the fact that the applicant was moving and could not find her paperwork. I do not find that these emails support the applicant’s position that she was unable to advance her accident benefits claim due to housing insecurity or inability to communicate with legal representation.
19I further am not persuaded by the applicant’s argument that the insurers’ priority dispute caused her delay in notifying the respondent of her accident benefits claim. The applicant did not submit the OCF-1 to Cooperators until May 31, 2021, and then subsequently submitted the OCF-1 to the respondent a few months later. The period involving the priority dispute between the insurers was only a few months, compared to the applicant’s eighteen month delay in submitting the first OCF-1 to Cooperators.
20Finally, I agree with the respondent that the Tribunal decision relied upon by the applicant, R.C. v The Co-operators, is distinguishable on its facts. In R.C., the claimant had been incarcerated for years after the accident, while in the present case, there is no evidence that the applicant has been incarcerated for any period of time after the accident. Further, in that decision, it was noted that a “volume” of evidence established that the claimant’s explanation was credible. In the matter at hand, the limited CNR entries and email correspondence fail to meet the applicant’s evidentiary burden to establish a credible reason for the delay.
21As such, I find that the applicant has not met her onus under s. 34 to establish a reasonable explanation for failing to apply for accident benefits within the timelines prescribed by the Schedule.
order
22I find that the applicant did not comply with the timelines to notify the respondent of the accident, or apply for accident benefits, prescribed in s. 32 of the Schedule. She has not provided a reasonable explanation for the delay.
23The application is dismissed and the substantive hearing is vacated.
Released: January 18, 2024
Ulana Pahuta
Adjudicator