Licence Appeal Tribunal File Number: 23-006139/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:
George Sabbagh
Applicant
and
St. Paul Fire and Marine Insurance Company
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR:
Ludmilla Jarda
APPEARANCES:
For the Applicant:
Paul Giuliano, Counsel
For the Respondent:
Jane Cvijan, Counsel
HEARD:
By Written Submissions
OVERVIEW
1George Sabbagh (the “applicant”) was in an automobile accident on June 30, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by St. Paul Fire and Marine 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 issue to be decided is as follows:
- Pursuant to s. 32(1) and s. 55(1) of the Schedule, is the applicant barred from proceeding to a hearing as 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
3For the reasons that follow, I find that the applicant has not provided a reasonable explanation for the delay in notifying the respondent of the accident and submitting his application for accident benefits. As a result, the applicant’s claim for accident benefits is barred.
ANALYSIS
Background
4The applicant was 27 years old at the time of the accident. He was an occupant of a Megabus involved in a rear-end collision on June 30, 2021. At the time of the accident, the Megabus was travelling from Montreal to Toronto.
5According to a Disability Certificate (OCF-3) dated April 21, 2023 completed by Haralabos Grigoropoulos, chiropractor, the applicant’s accident-related injuries include injury of sciatic nerve at hip and thigh level, foot drop (neurological), laceration of quadricep muscle and tendon, sciatica, and radiculopathy.
Application for Accident Benefits (OCF-1)
6I 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.
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 of the benefit, or as soon as practical after that day.
8Section 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.
9The 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 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.
Parties’ positions
10The respondent submits that the applicant failed to notify the insurer of his intention to bring a claim within the time prescribed under the Schedule or as soon as practicable after that day. The respondent argues that the applicant did not give notice of his intention to claim benefits for 19 months following the accident, contrary to s. 32(1) of the Schedule, and that it was practical for him to give notice prior to February 9, 2023.
11While the applicant attributes the delay to his alleged inability to identify the respondent sooner, the respondent submits that this explanation is not reasonable, credible, or worthy of belief considering the applicant’s activities during the 19-month delay. The respondent states that, throughout the delay, the applicant’s level of functioning demonstrated an ability to take steps to identify the respondent sooner.
12In response, the applicant submits that he is an unsophisticated litigant who was unaware that he could make a claim for accident benefits while on a commercial bus. When he realized that he could make a claim, on February 1, 2022, he reached out to Megabus who did not provide him with the relevant accident details or the name of its insurer. In the following months, the applicant made several attempts to obtain relevant information from Megabus, but Megabus either refused to provide the requested information or it was unresponsive. The applicant also attempted to claim accident benefits from the Motor Vehicle Accident Claims Fund (“MVACF”) who denied his claim on the basis that Megabus was likely insured.
13The applicant further submits that he did not discover the identity of Megabus’ insurer until January 27, 2023 when the respondent responded to the Statement of Claim issued against Megabus. The applicant states that on or about February 2, 2023, he served an Application for Accident Benefits (OCF-1) dated September 27, 2022 on the respondent. The applicant argues that the reason he was unable to provide notice until 19 months following the accident is because Megabus willfully or negligently refused to co-operate with the applicant, his legal representative, and the MVACF, and that over 12 months of the delay was caused by the respondent or its insured, Megabus.
14On reply, the respondent notes that while the applicant claims that he first took steps to give notice of its intention to claim benefits on February 1, 2022, the applicant fails to provide an explanation worthy of belief for the initial 8-month delay, and he does not lead any evidence regarding the steps, if any, taken to give notice to the respondent during that period of time. Moreover, despite having identified the respondent in January 2023, the applicant still waited a month before giving notice under s. 32(1) of the Schedule in February 2023.
Section 32 Notice
15I 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 s. 32(1) of the Schedule. According to the applicant’s Statutory Declaration dated March 3, 2023, within two weeks of the accident, he developed accident-related injuries, and there is no evidence that the applicant’s accident-related injuries prevented him from complying with the time limit set out in the Schedule for applying for benefits. Despite the time limit, the applicant did not notify the respondent of his intention to apply for accident benefits until February 2, 2023 when he submitted an OCF-1 dated September 27, 2022.
Section 34 Reasonable Explanation
16I find that the applicant has not provided a reasonable explanation for the delay in comply with the timelines set out in s. 32(1) of the Schedule pursuant to s. 34 of the Schedule.
17Although the applicant later experienced difficulties identifying the respondent, the applicant has not provided an explanation that is credible and worthy of belief for the delay between June 30, 2021 to February 1, 2022, i.e. a period of 216 days. There is no evidence that the applicant took any steps to identify the respondent and to put it on notice of his intention to apply for benefits during this period of time.
18Moreover, while the applicant argues that the reason for the initial 216-day delay was because he did not know that he could make a claim for accident benefits on a commercial bus, it is well established that ignorance of the law, such as the right to claim benefits under the Schedule, and the legal requirements for claiming same, is not a reasonable explanation for the delay.
19Additionally, I am not persuaded that it was not practical for the applicant to give notice to the respondent prior to February 2022. While there is sufficient evidence to support that Megabus contributed to the delay between February 1, 2022 (the date the applicant first attempted to identify the respondent) and February 2, 2023 (the date the applicant submitted an OCF-1 to the respondent), i.e. a period of 366 days, the applicant has not directed the Tribunal to any evidence to support that Megabus contributed to the initial 216-day delay.
20Considering that the applicant reportedly developed accident-related injuries within two weeks of the accident, I find that the applicant does not have a reasonable explanation for the delay. As a result, he is time-barred from pursuing his application for accident benefits.
Section 55
21Per s. 55(1)1 of the Schedule, an insured person shall not apply to the Tribunal under subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, if the insured person has not notified the insurer of the circumstances giving rise to a claim for benefit or has not submitted an application for benefit within the times prescribed by the Schedule.
22Based on the evidence as a whole, I find that the applicant did not notify the respondent of the accident or apply for benefits within the times prescribed by the Schedule, and he has not provided a reasonable excuse for the delay. Accordingly, I find that he is statute-barred from proceeding with his application before the Tribunal.
ORDER
23For the reasons outlined above, I find that the applicant is barred from proceeding with his application pursuant to s. 55(1)1 of the Schedule because he did not comply with the time limit to notify the respondent of the accident or apply for accident benefits prescribed in s. 32(1) of the Schedule, and he has not provided a reasonable explanation for the delay pursuant to s. 34 of the Schedule.
24The application is dismissed.
Released: April 5, 2024
Ludmilla Jarda
Adjudicator