Heather Doolittle v. Economical Insurance Company, 2024 CanLII 2657

Citation: Doolittle v. Economical Insurance Company, 2024 ONLAT 23-004374/AABS-PI

Licence Appeal Tribunal File Number: 23-004374/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:

Heather Doolittle

Applicant

and

Economical Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Camille Narine-Ramrattan, Paralegal

For the Respondent:

Jonathan B. White, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Heather Doolittle, 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 issues in dispute are as follows:

a) Is the applicant barred from proceeding to a hearing because she failed to submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms, pursuant to section 32(5) of the Schedule? (Preliminary Issue #1)

b) Is the applicant barred from proceeding to a hearing for a Non-Earner Benefit because she failed to submit a completed OCF-3/ Disability Certificate within 104 weeks of the date of the accident, pursuant to section 36(2)-(3) of the Schedule? (Preliminary Issue #2)

RESULT

3I find that the applicant is statute-barred from proceeding with her application.

ANALYSIS

Background

4The applicant was a passenger in a vehicle involved in an accident on December 10, 2019. She submitted an application for benefits (“OCF-1”) to the respondent on June 14, 2021, approximately one year and six months after the accident.

5On June 18, 2021 and June 23, 2021, the respondent wrote to the applicant’s legal representative, acknowledging receipt of the OCF-1 and requesting additional documents and information, including: a disability certificate (“OCF-3”), missing information from the OCF-1, and a reasonable explanation for failing to notify the respondent of her intention to claim benefits. The respondent also advised that it required the applicant to attend an Examination Under Oath (“EUO”).

6The applicant does not dispute that she has failed to provide an OCF-3 or attend the scheduled EUO.

Limitation period in Preliminary Issue #2

7The respondent identifies the preliminary issue #2 listed above in paragraph 2(b) as being whether the applicant is barred from proceeding with her application, because she failed to submit a completed OCF-3 within 104 weeks of the date of the accident, pursuant to section 36(2)-(3) of the Schedule.

8However, from my review of the submissions, I find the respondent conflates the 104-week period for which an applicant may be entitled to a non-earner benefit (“NEB”) with the submission of an OCF-3 for the purposes of making an accident benefits claim under section 32.

9The preliminary issue raised in para 2(b) above references section 36(2) of the Schedule, which states that an applicant claiming a specified benefit must submit a completed OCF-3 with her application, pursuant to section 32. Section 32(5) requires that an applicant submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms. There is nothing in section 36 or 32 which requires that the person must apply for NEBs or submit an OCF-3 within 104-weeks of the accident. Rather, it is section 12 that references the 104-week period, where it states that an insurer is not required to pay NEBs after 104-weeks post-accident.

10Accordingly, in my view, the respondent’s reference to section 36(2) of the Schedule pertains to section 32(5), being the period to submit an OCF-3 along with the OCF-1, namely 30 days after receiving the application forms from the respondent as provided by section 32. This preliminary issue was already identified as preliminary issue #1, listed in paragraph 2(a) above. As such, both of the listed preliminary issues address the same issue and limitation period, and will be considered together.

The Law

11As previously noted, pursuant 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 claiming a specified benefit must submit a completed OCF-3 with her application.

12Section 36(3) states “an applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted”.

13Section 55(1) provides that the applicant shall not apply to the Tribunal if she has not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted an application for the benefit within the times prescribed by the Schedule.

The applicant’s failure to provide an OCF-3 within the prescribed timelines

14The applicant does not dispute that she failed to provide an OCF-3 to the respondent. As such, I find that pursuant to section 32(5) and 36(2) of the Schedule, the applicant failed to provide a completed application within the times prescribed by the Schedule. However, she submits that pursuant to section 34, she has a reasonable explanation for the delay.

15Section 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, 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.

16The applicant argues that she suffers from a number of challenges, which explain the delay of a year and a half in providing her OCF-1, her failure to provide an OCF-3 and her non-attendance at the EUO. She submits that she suffers from mental health and substance abuse issues and homelessness and “run-ins with the law”, which have prevented her from pursuing her accident benefit claim. The applicant submits medical records from Woodstock hospital and Dr. Mark Tomen, which detail her addiction and mental health issues, personal traumas and periods of homelessness. The applicant’s submissions also provide details on her communication challenges and failure to respond to her legal representative.

17She further relies on the Tribunal decision R.C. v The Co-operators General Insurance Company, 2020 CanLII 98748 (ON LAT), arguing that the Tribunal found in similar factual circumstances, that the claimant’s circumstances, including incarceration, homelessness and mental health issues, were a reasonable explanation for his delay in applying for benefits.

18The respondent submits that the applicant has not offered any reasonable explanation for her failure to submit a timely and complete application. It argues that the evidence submitted by the applicant only reveals a passing pre-accident reference to incarceration, and no reference to homelessness. The respondent contends that no evidence has been submitted by the applicant as to when her periods of incarceration or homelessness were, and how they would have prevented her from seeking treatment or pursuing her claim.

19Applying the factors delineated in Horvath, I find that the applicant has satisfied the relatively low threshold of being credible and worthy of belief. The medical evidence submitted by the applicant has provided details of mental health and substance abuse issues and a reference to homelessness, which together present a credible reason for the delay in pursuing accident benefits, sufficient to meet the preliminary threshold. I must now proceed to an analysis of whether the explanation is reasonable under s. 34 of the Schedule.

20After considering the parties’ submissions, I do not find that the applicant’s explanation amounts to a reasonable explanation. The onus rests with the applicant to show that her explanation is reasonable. When applying the factors specified in Horvath, it is clear that the respondent has been prejudiced by the delay because it was not aware of the applicant’s intention to seek accident benefits and could not assess her for a period of over one-year post-accident. This delay has prevented the respondent from obtaining contemporaneous medical examinations and records.

21Moreover, the applicant has refused to attend the EUO, further preventing the respondent from properly assessing the applicant’s claim. In this regard, the present case is distinguishable from R.C. v The Co-operators, upon which the applicant relies, as in that case the applicant had participated in the requested EUO. The applicant’s lack of cooperation after notifying the respondent of her intention to pursue accident benefits has deprived the respondent of accurate information about the accident and its effects. I further agree with the respondent that the applicant’s lack of response to her own legal representative, as evidenced by the submitted correspondence, illustrates a lack of intention to pursue her claim for accident benefits during the relevant time periods under the Schedule. Further, unlike in R.C. v The Co-operators, where the claimant had been incarcerated for years, there is no evidence in the present case that the applicant has been incarcerated for any period of time after the accident which would help to reasonably explain her non-compliance.

22A reasonable explanation must be assessed on a subjective-objective standard that considers an individual’s self-reported circumstances against what a reasonable person would do if faced with those circumstances. The applicant’s continued failure to cooperate in the claims process or pursue treatment in my view, does not meet the reasonable person standard.

23Finally, I find that the applicant’s delay in applying for benefits has resulted in prejudice to the respondent. The respondent’s ability to investigate the claim or obtain contemporaneous evidence of the applicant’s injuries has been substantially interfered with. The applicant has not shown hardship capable of outweighing the prejudice. She has not shown that the Tribunal should relieve against the consequences of her failure to act.

24As such, I find that the applicant has not met her onus under s. 34 and her application cannot proceed.

ORDER

25The applicant is statute-barred from proceeding with her application before the Tribunal under section 55 as she did not comply with the timelines in sections 32(5) and 36(2) of the Schedule.

26The application is dismissed and the written hearing is vacated.