Sivakumaran v. The Dominion of Canada General Insurance Company (Travelers), 2024 CanLII 28827

Citation: Sivakumaran v Dominion, 2024 ONLAT 23-007692/AABS-PI

Licence Appeal Tribunal File Number: 23-007692/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:

Sivakannan Sivakumaran Applicant

and

The Dominion of Canada General Insurance Company (Travelers) Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR: Bonnie Oakes Charron

APPEARANCES:

For the Applicant: Domenic Pellegrino, Counsel

For the Respondent: Anna Dylewski, Counsel

Heard: By Way of Written Submissions

OVERVIEW

1Sivakannan Sivakumaran (“the applicant”) was involved in an automobile accident on March 29, 2022, 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 Dominion Insurance (“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 whether the applicant is barred from proceeding with his claim as he failed to submit the application for benefits (OCF-1) within the time prescribed in the Schedule.

RESULT

3The applicant is statute-barred from proceeding with his application.

ANALYSIS

Law

4Section 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.

5Once an insurer receives notice of an applicant’s intention to apply for statutory accident benefits, the insurer must provide the applicant with the appropriate OCF-1 forms, a written explanation of the benefits available, information to assist the person in applying for benefits and information on the election relating to the specified benefits, if applicable (s. 32(2)). Pursuant to section 32(5) of the Schedule, the applicant must then submit a completed and signed application for benefits to the respondent within 30 days after receiving the forms.

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. The 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. vs Northbridge, 2019 CanLII 101613 (ON LAT). The guiding principles are summarized as follows:

i. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.

ii. The onus is on the insured person to establish a “reasonable explanation.”

iii. Ignorance of the law alone is not a “reasonable explanation”.

iv. 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.

v. The lack of prejudice to the insurer does not make an explanation automatically reasonable.

vi. 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.

Background and Parties’ Positions

7On March 29, 2022, the applicant was involved in an accident with a third party in the course of his employment. On March 30, a representative of his employer, the insured party, advised the respondent of the accident as there was property damage to the company vehicle. The respondent’s adjuster logged the call and recorded that the employer would advise if its employee, the applicant in this case, wished to speak with an adjuster regarding any injuries from the accident.

8On April 29, 2022, the employer again contacted the respondent and notified it that the employee wished to speak with an adjuster. The respondent contacted the applicant by phone and after discussion, sent an accident benefits (“AB”) package by email on May 3, 2022. The communication referred to the previous day’s discussion and concluded with an invitation to call the adjuster with any questions. There was no response from the applicant.

9On May 9, 2022, the adjuster again called the applicant to verify his contact information and to confirm that communication via email was acceptable. The log note confirms that an AB package was sent by both email and regular mail. The log note documents that they discussed the applicant’s back pain, his attendance at physiotherapy, and whether or not WSIB applied to his situation.

10By June 30, 2022, the applicant had not submitted a completed OCF-1, nor contacted the respondent at all. The adjuster left a voicemail and sent a letter acknowledging the lack of response to the AB package and offering an extended deadline to July 30, 2022. The letter confirmed that the applicant may be entitled to benefits but no determination could be made until the application was received. The letter concluded with an invitation to call with any questions or concerns. There was no response from the applicant.

11By August 17, 2022, the respondent called the applicant and left a voicemail indicating that no OCF-1 was received. There was no response from the applicant.

12As a result, the adjuster sent a letter of file closure. The letter provided information on how to commence an application to the LAT if the applicant disagreed with the decision. The letter included an invitation to call with any questions or concerns. There was no response from the applicant.

13On May 17, 2023, the applicant notified the respondent that he had retained legal representation and enclosed a completed OCF-1. The respondent sent a letter on May 29, 2023, referring the applicant to s. 32 and 34 of the Schedule. The letter also included a request for a written explanation for the delay in order to determine his eligibility for benefits.

14On June 2, 2023, the applicant’s counsel sent a letter to the respondent outlining two explanations for the delay, as follows:

i. The applicant had informed the respondent of the claim shortly after the accident.

ii. The applicant believed he had to commence a tort claim based on the respondent’s email of May 9, 2022, and had only just decided to pursue a tort claim, alongside an AB claim, due to chronic back pain.

15On June 21, 2023, the respondent denied the claim based on failure to comply with s. 32 of the Schedule or provide a reasonable explanation.

16The respondent argues that the applicant failed to notify the respondent of his intention to seek accident benefits within seven days, or as soon as practicable thereafter. It further submits that despite its numerous attempts at communication, and a good faith extension of 30 days, the applicant did not provide a completed OCF-1 within the prescribed timeframe or offer a reasonable explanation for the delay. The respondent argues that the applicant did not comply with the prescribed timelines specified in s. 32 of the Schedule.

17The applicant does not dispute that he first provided his OCF-1 to the respondent on May 17, 2023. However, he argues that he has a reasonable explanation for the delay, pursuant to s. 34 of the Schedule. The applicant’s explanations are that he notified the respondent of the claim shortly after the accident, and early on, believed he was required to meet preconditions before making an AB claim based on the content of an email message.

Did the applicant fail to comply with the timelines stipulated in s. 32 of the Schedule?

18I find that the applicant did not notify the respondent of his intention to apply for accident benefits within seven days, or as soon as practicable, as required by s. 32(1) of the Schedule. Nor did the applicant meet the 30-day deadline to submit a completed OCF-1 as required by s. 32(5) of the Schedule.

19The applicant submitted his OCF-1 to the respondent more than fourteen months after the accident. I agree with the respondent that this is well-outside the prescribed timeline as specified in s. 32(1) of the Schedule.

20Further, the respondent attempted to communicate with the applicant multiple times regarding his intention to file an OCF-1. An AB benefits package was sent two times by both email and regular mail, there were several voicemails, and at least two discussions by telephone. Further, the respondent extended the deadline for the OCF-1 by an extra 30-day grace period in a goodwill gesture. The applicant made no reply to any of the respondent’s outreach efforts.

21I find that the applicant was non-compliant with s. 32 of the Schedule.

22Still, the applicant submits that he has a reasonable explanation for the delay pursuant to s.34.

The applicant has not established a reasonable explanation for the delay

23I find that the applicant has not provided a credible explanation for his delay in notifying the respondent of his intention to pursue accident benefits and submitting a completed OCF-1.

24The applicant provided two explanations for the delay:

i. The applicant had informed the respondent of the claim shortly after the accident.

ii. The applicant believed he had to commence a tort claim based on the respondent’s email of May 9, 2022, and had only just decided to pursue a tort claim, alongside an AB claim, due to chronic back pain.

Notification

25The applicant submits that he notified the respondent shortly after the accident. I disagree.

26The log notes record that the applicant first contacted the respondent to discuss his claim on April 29, 2022, well beyond the expected seven-day period for notification. The log notes record that the applicant told the respondent he had not yet decided on how to proceed.

27The log notes also record that the respondent made further attempts to manage the possible claim shortly after this first discussion as follows:

i. on May 3, 2022, an AB package was sent out by email; and

ii. on May 9, 2022, the respondent called the applicant again, verified his contact information and established that email was an acceptable method of communication, as well as sending the AB package by both email and mail.

28Neither does the filing of a completed OCF-1 some 14 months after the accident constitute ‘shortly’. The respondent had attempted to communicate with the applicant many times by phone, email, and regular mail between the first phone conversation on April 29 and the closing of the file on August 17, 2022. It even extended the deadline for filing the OCF-1 by an extra 30 days in good faith. There was no response from the applicant to any of the communications made by the respondent.

29While the applicant argues that his injuries were latent, only manifesting more than a year after the accident, I don’t agree that this is a reasonable explanation for the delay. The applicant demonstrated his awareness that he had injuries from the accident by seeking medical care and attending physiotherapy in the days following. This was discussed with the respondent on the May 9, 2022, phone call as per the log note. Nothing prevented him from signaling his intent in the week following the accident, nor completing an OCF-1 by the June 30, 2022 deadline.

30Thus, the applicant has not established that he communicated his intentions to the respondent “shortly after the accident”. In fact, the first signal of his intentions was the filing of an OCF-1 on May 17, 2023, certainly not ‘shortly’ after the accident. At that time, he had been unresponsive to the respondent’s attempts to contact him for over a year.

Email of May 3, 2022

31Next, the applicant submits that he was confused about his obligation because the respondent’s email of May 3, 2022, was unclear. The said email stated that because the accident happened during the course of his employment, if the applicant wished to claim under accident benefits, he “would have to sue a third party and provide us the attached WSIB form”.

32The respondent argues that it is not plausible for the applicant to base his whole understanding on only one email while ignoring all other communications that were provided. After reviewing the various communications and related log notes, I agree with the respondent that it provided fulsome, detailed, and clear information, through multiple channels, all without any response from the applicant.

33I note that the email in question made reference to the “discussion yesterday”. As such, it is clear a broader context was discussed with the applicant and the email was a follow-up. Notably, the email contained an invitation to call the respondent if the applicant had any questions. He did not do so.

34Thus, the applicant has not established that the content of the email is a credible reason for his inaction. Even if he was unclear about the situation with the election form for WSIB, or the possibility of a tort action, there was nothing to prevent him from seeking clarification.

35Also, beyond clarity, the applicant argues that the May 3, 2022 email established pre-conditions for the applicant to make a claim.

36The applicant points to the message content and argues that it constitutes a denial to consider the claim unless two conditions were met: commence a tort action and execute a WSIB form. I disagree that the email amounts to prescribing certain actions that the applicant must take. It is clearly referencing a more extensive and previous conversation about the applicant’s options, a discussion that as per the log note included the possibility of WSIB, prompting an election form to be included in the AB package that was sent after the call. The log note confirms that the applicant would contact his employer to discuss the situation and get back to the adjuster.

37The applicant further submits that the respondent took no steps to clarify the email, but I see no reason why it would do so as they received no indication from the applicant that he needed clarification or had further questions. In fact, he stopped communicating at all.

38The applicant’s explanations for the delay are not persuasive as none of them precluded him from taking the necessary actions to establish a potential claim.

39Consequently, I find that the applicant has not met his onus. He has not provided a credible explanation for the delay in providing a completed OCF-1 or in notifying the respondent of his intention to apply for accident benefits.

Section 55

40Pursuant to s. 55(1)1 of the Schedule, an insured person shall not apply to the Tribunal under subsection 280(2) of the Insurance Act if the insured person 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 in s. 32.

41As outlined above, I find that the applicant did not notify the respondent of the accident or submit his completed OCF-1 within the timelines prescribed by the Schedule and has not provided a reasonable explanation for the delay. Accordingly, I find that the applicant is statute-barred from proceeding with his application before the Tribunal.

ORDER

42The applicant is barred by s. 55(1)1 of the Schedule from proceeding with his application. The application is dismissed. The Tribunal shall vacate any date that has been scheduled for the substantive issue hearing.