Ghada Hijazi v. Economical Insurance, 2024 CanLII 28839

Licence Appeal Tribunal File Number: 23-007252/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:

Ghada Hijazi

Applicant

and

Economical Insurance

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Chau (Cathy) TD Nguyen, Paralegal

For the Respondent:

Mirsa Duka, Counsel

Heard by way of written submissions

OVERVIEW

1Ghada Hijazi, the applicant, was involved in an automobile accident on July 31, 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 the respondent, Economical Insurance (“Economical”) 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 to be decided are:

i. Is the applicant barred from proceeding to a hearing as she 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?

ii. Is the applicant barred from proceeding with her claim for benefits as she failed to submit the application for benefits (“OCF-1”) within the time prescribed in the Schedule?

RESULT

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

ANALYSIS

Background and parties’ positions

4The applicant was a passenger in a vehicle that was involved in an accident on July 31, 2022. The vehicle involved in the accident was driven by Economical policyholder, Mr. Rahat Mahmood, who the applicant claims is her separated/ex- husband. On September 30, 2022 (nearly two months following the accident), due to a language barrier, the applicant had her friend call Economical with her to notify it that she had been involved in the subject accident and that she sustained injuries. An OCF-1 was submitted on November 24, 2022.

5Economical submits that the applicant did not notify it of her intention to apply for accident benefits within seven days as mandated by s. 32(1) of the Schedule. Additionally, it takes the position that the applicant did not submit the OCF-1 in accordance with the timelines set out in s. 32, as it was submitted three months and 25 days after the accident, despite it following up with the applicant on October 13, 2022, by both email and letter, and November 8, 2022. Lastly, the respondent submits that the applicant failed to provide a reasonable explanation for the delay pursuant to s. 34 of the Schedule. As a result, Economical takes the position that the applicant is barred from proceeding with this application pursuant to s. 55 of the Schedule.

6In response, the applicant does not appear to be disputing that she did not advise the respondent of her intention to seek accident benefits within seven days. Instead, she argues that she has a reasonable explanation for the delay, pursuant to s. 34 of the Schedule. With respect to the OCF-1, she submits that Economical sent the OCF-1 for completion on October 13, 2022, and not September 30, 2022, as alleged, and that she was not advised of the deadline or consequences of non-compliance in the October 13, 2022 letter. Ultimately, she takes the position that she is not barred from proceeding as she has a reasonable explanation for the delay in both informing Economical of her intention to seek benefits, and the submission of the OCF-1.

The Law

7Pursuant to section 32(1) of the Schedule, a person who intends to apply for statutory 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.

8Once 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, as required by section 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.

9Section 55(1)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.

10However, section 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, FSCO A02-000482, June 9, 2003, and was more recently reiterated in K.H. v. Northbridge, 2019 CanLII 101613 (ON LAT). The guiding principles are summarized as follows:

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

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

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

4. 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.

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

6. 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.

Did the applicant fail to notify the insurer of her intention to apply 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 date?

11I find that the applicant did not notify the respondent within the timeframe set out in s. 32(1) of the Schedule, as she first notified Economical of her intention to apply for benefits on September 30, 2022 (nearly two months after the accident).

12As noted above, the applicant does not appear to be disputing that she did not advise Economical within seven days of her intention to apply for accident benefits. Rather, it appears that she is arguing that she informed Economical of her intention to seek benefits on September 26, 2022, when her treatment provider sent both a Disability Certificate (“OCF-3”) and Treatment Confirmation Form (“OCF-23”) to the respondent.

13Economical submits that it was not notified of the applicant’s intention to apply for accident benefits until September 30, 2022, when the applicant and her friend called.

14The applicant did not produce evidence to support her position that her treatment provider submitted either the OCF-3 or OCF-23 on September 26, 2022, to the respondent. For example, while she provided copies of the OCF-3 and OCF-23, dated August 15, 2022, she did not provide any proof of the method of service in which these were sent. Moreover, in the respondent’s correspondence, dated October 2, 2022, while it confirmed receipt of the OCF-23, it does not state when the document was submitted. It is well-settled that submissions are not evidence.

15In any event, whether the applicant first advised of her intention to seek benefits on either September 26 or September 30, 2022, both dates are beyond the seven-day deadline as mandated by s. 32(1) of the Schedule. Thus, the crux of the dispute before me is whether the applicant has a reasonable explanation for the delay or not.

The applicant has not established a reasonable explanation for the delay

16I find that the applicant’s explanations for the delay are neither credible nor worthy of belief.

17The applicant in her submissions provided two explanations for the delay in advising Economical of her intention to pursue a claim. First, she was unable to advise Economical sooner of her intention to seek benefits, as her separated/ex-husband refused to provide her with the name of the insurance policy she was insured under and the policy number of same. Second, she speaks little to no English.

18The respondent submits that the applicant’s representative already provided an explanation by a way of letter on May 2, 2023, where it appears that the applicant was alleging the delay was due to her deciding to pursue her accident benefits claim when her injuries became chronic. Economical argues that instead of dealing with this explanation in her submissions, the applicant is now raising two explanations for delay for the first time in her submissions. Thus, it objects to the applicant raising these new explanations as it is prejudicial to it, and the applicant has not provided proof to support her submissions.

19In my opinion, none of the explanations (new or old), satisfy the test of being credible or worthy of belief.

20First, I turn to the explanation provided by the applicant’s representative on May 2, 2023. In this unclear and somewhat confusing letter, the applicant’s representative appears to allege that the applicant delayed starting her accident benefits claim until she became concerned with her ongoing pain syndromes, which has now become chronic. Also, that the applicant was suffering from severe pain. Moreover, in the letter, dated May 2, 2023, the applicant’s representative also wrote that in her opinion, these explanations supported reasonable grounds to start her accident benefits claim. Instead of providing clarification to these explanations the applicant appears to have abandoned these explanations, as her submissions are completely silent on this point.

21In any event, the medical evidence of the applicant’s family physician, Dr. Najwa El Bawab, do not support this explanation as either credible or worthy or belief. Indeed, upon review of the records of Dr. El Bawab, the applicant did not advise her family physician of the accident until November 3, 2022, which is after her friend informed Economical of the accident. Meanwhile, the applicant attended for visits unrelated to the accident on September 6, 2022, and September 8, 2022.

22In the November 3, 2022 entry, Dr. El Bawab referred the applicant for a knee test, the results of these tests were reviewed on November 17, 2022, and she was diagnosed with a knee sprain, not chronic pain. From the records produced, after this visit, there is no further mention of the accident, a diagnosis of chronic pain, a referral to a specialist, or prescription for pain medication. Therefore, in my view, the explanation provided in the letter of May 2, 2023 is not credible or worthy of belief.

23Second, both the OCF-3 and OCF-23, dated August 15, 2022, do not assist the applicant’s position that she could not submit these documents until September 26, 2022, because her husband refused to provide her with the insurance particulars. I note that both these documents have the name of the insurer, the claim number, and the policy number, and there is no indication of when this information was received.

24In my opinion, this explanation is further undermined by the written explanation provided on May 2, 2023. In my view, if the applicant’s separated/ex-husband refused to provide such vital information to the applicant, this could have been relayed to the respondent on May 2, 2023. It is not clear to me why this explanation is being provided for the first time in submissions, and the applicant’s failure to address the May 2, 2023 letter further weakens her position. The applicant had an opportunity in her submissions to address why these explanations are not provided in the written response dated May 2, 2023. Instead, she chose to remain silent on this point. Therefore, I find that this new explanation is neither credible nor worthy of belief.

25Finally, the applicant provided no clarification on how her language barrier delayed her from advising Economical of her intention to pursue this claim. While I can appreciate that the applicant has little to no understanding of the English language, as indicated in the adjuster’s log notes, no explanation was provided on how this delayed her from advising Economical of her intention to pursue a claim. In my interpretation, the applicant could have asked her friend to speak to Economical within the timelines provided in the Schedule, just like she did on September 30, 2022. Once again, this explanation was not included in the letter dated May 2, 2023, which further damages her position. To sum up, the applicant has provided no clarification of how her language barrier caused a delay in reporting her intention to pursue a claim to Economical, thus I find it is neither credible nor worthy of belief.

26Without an explanation that is credible or worthy of belief there is no need to assess the reasonableness of the explanation. In other words, the first principle is a threshold that must be met in order to engage the other principles. It is incumbent upon the applicant to provide evidence that supports her position. In my view, she has not.

Remaining arguments

27As noted above, the applicant also raised concerns of when the OCF-1 was sent to her, and the sufficiency of the correspondence, i.e., she was not advised of the time limit or the consequences of non-compliance. While I am alive to these submissions, given my findings above, it is unnecessary to consider whether she failed to submit an OCF-1 to the insurer within 30 days after receiving the application forms, as I have determined that the applicant’s explanation for delay in informing Economical is not credible or worthy of belief.

Section 55

28Pursuant 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, RSO 1990, c I.8 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.

29As outlined above, I find that the applicant did not notify the respondent of the accident 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 her application before the Tribunal.

CONCLUSION AND ORDER

30The applicant is barred by s. 55(1)1 of the Schedule from proceeding with her application before the Tribunal. The application is dismissed. The Tribunal shall vacate any date that has been scheduled for the substantive issue hearing.