Licence Appeal Tribunal File Number: 23-004187/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:
Jordan Capson
Applicant
and
Economical Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Tina Radimisis, Counsel
For the Respondent:
Danielle M. Gauvreau, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Jordan Capson, the applicant, was involved in an automobile accident on December 21, 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 in dispute is:
a) Is the applicant barred from proceeding to a hearing because he 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?
RESULT
3I find that the applicant is statute-barred from proceeding with his application.
ANALYSIS
Background
4The applicant was involved in an automobile accident on December 21, 2019. He spoke with the respondent two days after the accident, with respect to his property damage claim. However, he did not submit his application for benefits (“OCF-1”) to the respondent until 2021, although the parties disagree as to the exact date of submission of the OCF-1. The respondent submits that it did not receive the OCF-1 until April 6, 2021. However, the applicant argues that he submitted his OCF-1 on February 25, 2021.
The Law
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 to the benefit, or as soon as practicable after that day.
6Section 55(1) provides that the applicant shall not apply to the Tribunal if he 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.
7However, s. 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.
8The applicant does not dispute that he failed to notify the respondent within the timeframe set out in s. 32(1) of the Schedule. However, he submits that the delay was not fifteen months, as argued by the respondent. Rather, the applicant argues that the delay was closer to nine months, due to the COVID-19 related six-month extension of limitation periods provided by regulation 73/20, S.O. 2020, CHAPTER 17 (“Regulation”).
9I am not persuaded by the applicant’s argument. I agree with the respondent that the legislation to extend timelines came into effect on March 16, 2020, after the subject accident and after the timeframe stipulated by s. 32(1) would have expired. Further, the applicant has not submitted any caselaw in support of his claim that the Regulation extended the timeline to submit an OCF-1. Regardless, the applicant still concedes that even taking into account the Regulation, his delay in submitting his OCF-1 would be 9 months approximately, well outside the timeline stipulated by s. 32(1).
10However, the applicant submits that pursuant to section 34, he has a reasonable explanation for the delay.
The applicant has not established a reasonable explanation for the delay
11The applicant concedes that when he discussed the property damage claim with the respondent’s adjuster two days after the accident, he did report that he did not sustain any injuries in the accident. However, the applicant argues that he was overwhelmed at the time, due to a pending criminal investigation stemming from the accident, and his pre-accident medical history of depression, anxiety and ADHD. Further, the applicant contends that psychological impairments can take a period of time to develop. It was only later, through medical attention, that the applicant became aware of his serious psychological and post-concussive impairments.
12The applicant further submits that he was not aware that he could pursue an accident benefit claim, until February 25, 2021. He relies on his testimony at his Examination Under Oath (“EUO”) to argue that he received advice from counsel, that he should not proceed with an accident benefit claim. In his EUO the applicant also stated that he had been expressly told by the respondent that he was not entitled to accident benefits. Finally, the applicant argues that the multiple emails he received from the respondent’s claims representative did not in any way discuss the lateness of the OCF-1, and led him to believe that the claim would proceed. As such, he argues that the respondent is estopped from pursuing a limitation period defense.
13The respondent submits that the applicant has not offered any reasonable or credible explanation for his delay. It argues that the adjuster’s log notes and email correspondence establish that the applicant reported that he did not sustain any injuries as a result of the accident, and that he was advised of the contact information for an accident benefits representative and offered assistance in looking for a treatment provider if needed. Even if the applicant was unaware of his injuries soon after the accident, the respondent argues that the evidence establishes that he was aware of any psychological symptoms in September 2020, well before April 12, 2021.
14The respondent further submits that ignorance of the law is not a “reasonable explanation” and that the applicant had access to legal representation throughout, due to his criminal matter. It argues that this delay in reporting has caused prejudice, as it has been deprived of the opportunity to obtain contemporaneous medical documentation and information. This is especially significant as the applicant was involved in a further accident in February 2021, prior to the submission of his OCF-1.
15After considering the parties’ submissions, I do not find that the applicant’s explanation is credible or worthy of belief. I am not persuaded by the applicant’s argument that he was unaware that he could pursue an accident benefit claim prior to February 25, 2021. Rather, the evidence led by the respondent establishes that the applicant was advised that he could pursue accident benefit claims within days of the accident. The adjuster’s log note dated December 23, 2019, indicates that the applicant reported no injuries from the accident when discussing his property damage claim. However, the applicant was still sent an email that day, which included an inquiry about whether the applicant was hurt in the accident, information about accident benefits, provided a telephone number and email for an accident benefits representative and information on how to pursue treatment.
16Although the applicant submits that the respondent’s December 23, 2019 email was insufficient, I am not persuaded by his argument. The applicant argues that the fact that the accident benefits information was included at the end of the email “lacked emphasis” and as such, he was unaware of the information. He further argues that as an unsophisticated individual, he was unable to comprehend the information. On review of the email, I find that the accident benefit information was written in clear, plain, language and was not any more complex than the information relating to the property damage claim. The applicant’s complaint that the paragraph was at the end of the email, is further unpersuasive. The email sent to the applicant was not multiple pages or excessively long. I do not find that applicant’s argument that he was unaware of the information at the end of the email, to be credible.
17Further, I am not persuaded by the applicant’s argument that he was unaware of the injuries he had sustained from the accident until well after December 21, 2019. In his testimony at the EUO, the applicant stated that he was aware of his neck, shoulder, arm, leg and knee pain, immediately or within days of the accident. With respect to cognitive or psychological symptoms, the applicant reported that he became aware of these once he began school in September 2020. As such, I do not find the applicant’s argument that he was unaware of his accident-related impairments until February 25, 2021, to be credible.
18Although the applicant argues that he was specifically advised by the respondent and counsel that he was not entitled to accident benefits, he has led no evidence in support of his claim. In his EUO, the applicant reported that the respondent told him that he was not entitled to accident benefits and he stated that this was written in an email that he would provide. However, no email was submitted by the applicant in support of this claim, rather, the email submitted by the respondent clearly establishes that the respondent provided information on the applicant’s ability to claim such benefits. The applicant further argues that both his criminal lawyer and a government-assisted online lawyer advised him not to pursue accident benefit claims. However, no evidence is provided in support of this claim.
19I further do not find the applicant’s argument that he was unable to pursue his claim due to his life circumstances and pre-existing psychological impairments, to be credible. The applicant argued that post-accident, he was overwhelmed due to his criminal matter, his prior history of depression, anxiety and ADHD, caring for his grandparents and attending school. However, I agree with the respondent that the applicant’s activities highlight that he was objectively able to submit an OCF-1 in the fifteen months post-accident. The applicant reported that he was able to provide support for his family and began studying at a full-time, marketing college program in September 2020. He was also able to seek medical attention from his family physician throughout this period for a number of unrelated medical reasons.
20Finally, I do not find the applicant’s argument that the respondent is estopped from pursuing its limitation period defense, to be persuasive. The applicant argues that the correspondence sent by the respondent’s claims representative from April 12, 2021 to May 4, 2021 led him to believe he could pursue his claim. I agree with the respondent that the applicant has not provided any specific submissions on equitable remedies or Tribunal caselaw in support of his position. Rather, I agree with the decision cited by the respondent, Basuric v. Dominion of Canada General Insurance Company (Travelers), 2021 CanLII 50781 (ON LAT), that the Tribunal lacks the jurisdiction to grant such equitable relief.
21As I have found that the applicant has not provided an explanation for the delay that is credible or worthy of belief, there is no need to assess the reasonableness of the explanation. The first principle delineated in Horvath, is a threshold that must be met in order to engage the other principles. As such, I am not persuaded that the applicant provided a reasonable explanation for the delay in notifying the respondent.
order
22The applicant has not provided a reasonable explanation for failing to notify the respondent of his intention to apply for accident benefits within the time limits prescribed by the Schedule.
23His application is barred pursuant to s. 55 of the Schedule and is accordingly dismissed. The substantive hearing shall be vacated.
Released: January 19, 2024
Ulana Pahuta
Adjudicator