Licence Appeal Tribunal File Number: 23-007757/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:
Theresa Potvin
Applicant
and
Allstate Insurance Company of Canada
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Nigel D’Souza, Counsel
For the Respondent:
Taskeen Abdul-Rawoof, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Theresa Potvin (“the applicant”), was involved in an automobile accident on December 25, 2020 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 Allstate Insurance Company of Canada (“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:
i. Is the applicant is barred from proceeding with her claim for all of the accident benefits claimed in the application 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?
RESULT
3The applicant is statute-barred from proceeding with her application.
ANALYSIS
Background
4The applicant was involved in an accident on December 25, 2020. The respondent was first notified of the applicant’s intention to seek accident benefits on June 10, 2021 when the applicant submitted an OCF-1.
The Law
5Section 32 (1) of the Schedule requires an insured person to inform an insurer of their intention to claim accident benefits within seven days of the accident, or as soon as practicable after.
6Section 34 states that if the insured person does not comply with that time limit, the insured person may still be entitled to benefits if they have a reasonable explanation for the delay.
7Pursuant to section 55(1)1, an insured person may not apply to the Tribunal if they have not notified the insurer of the circumstances giving rise to a benefit or has not submitted an application for the benefit within the times set out in the Schedule.
8The 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. v. Northbridge, 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 of 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.
9The applicant concedes that she did not notify the respondent within the timelines set out in section 32(1). The onus is on the applicant to establish that she has a reasonable explanation for the delay.
10The applicant has provided two explanations: first, she was unaware that she could claim accident benefits. It was only after discussing the incident with counsel that she was made aware of her potential claim. Second, her pre- and post-accident health contributed to the delay in applying for benefits.
Unaware of claim for accident benefits
11The applicant submits that she did not know her rights regarding the accident, that she was unaware that the incident was an “accident” such that she could claim accident benefits.
12The accident on December 25, 2020 occurred when the vehicle ahead of her purportedly braked suddenly during hazardous, snowy conditions, and in an attempt to avoid a collision she swerved and her vehicle slid into the ditch. She called the police, who attended the scene along with a tow truck. Her vehicle was towed out of the ditch, and she drove home.
13A letter from the Ministry of Transportation, dated October 5, 2022 appears to be in response to a request for a copy of the motor vehicle accident/collision report. The letter indicates that there was no report because the investigating officer “deemed this accident to be a non-reportable motor vehicle accident”. In a series of emails between the applicant and the investigating officer in October and November 2022 the applicant described having to slam on her brakes because the unknown driver in front of her unexpectedly braked, she swerved to avoid a collision and went into the ditch. She did not get the licence plate of the other driver. The officer explained that her collision report was classified as non-reportable because there was no damage to the vehicle and no injuries. The applicant submits that given that the statements of the officer in that email, she would have been left with the impression at the scene that she was not involved in an accident and that it was not until she consulted with counsel that she was made aware of her potential claim. However, these emails in the fall of 2022 post-date the consultation with counsel and the submission of the OCF-1 in June 2021.
14I find it unconvincing that the applicant wouldn’t think she was involved in an accident. The correspondence relied on by the applicant indicates only that the accident was not reportable to the Ministry of Transportation. They do not convey that there was no accident. In any event, I agree with the respondent that principles in Horvath provide that ignorance of the law is no excuse. Accordingly, her argument that she was not aware that she was involved in an accident or that she had to report it to claim benefits is untenable.
15The applicant relies on Shaver v. Onlia Insurance Company, 2023 CanLII 58481 (ON LAT) in support of her position, wherein the Tribunal accepted the applicant’s explanation that he did not know he could apply for benefits. I find the case distinguishable, as in that case the applicant was a pedestrian struck by an unknown driver. The adjudicator also considered his personal characteristics including his limited education. In the circumstances of the subject accident, the applicant allegedly sustained injuries after driving her vehicle into a ditch. There is also no evidence that the applicant’s personal characteristics would warrant an exception.
16Secondly, the applicant submits that her pre- and post accident health contributed to the delayed submission of the OCF-1. She submits that she had a complicated health picture both physically and psychologically. She refers to an ankle injury that pre-dated the accident and as well as an injured shoulder and wrist a couple weeks prior to the accident. Both pre- and post- accident she had regular consultations with a psychiatrist approximately every three months to address her symptoms consistent with an adjustment disorder and borderline personality disorder. She saw her family doctor in January 2021 for knee issues she attributed to the accident and in April 2021, she had arthroscopic surgery to correct a meniscal tear.
17The applicant relies on R.C. v. The Co-Operators General Insurance Company, 2020 CanLII 98748 (ON LAT) in support of her claim, where a delay of several years was excused due to the applicant’s health status. I also find that case distinguishable. The Tribunal found that the applicant’s transient circumstances -- no fixed address, no support system, an addiction supported by theft, significant mental illness, periods of incarceration followed by periods of homelessness, resulted in a genuine inability to pursue his accident benefits claim. These extenuating circumstances do not apply to the applicant in the subject case.
18I have reviewed the medical records provided by applicant. While I agree she was experiencing some physical and psychological issues before and after the accident, I am not persuaded that they would warrant a five-month delay in notifying the respondent. Further, the applicant has not provided any evidence to show how any of these conditions (whether separately or combined) specifically prevented her from reporting the accident on time or warranted a delay of more than five months.
19Having considered the evidence before me, I am not persuaded that the applicant has provided a reasonable explanation for the delay in notifying the respondent of her intention to apply for accident benefits.
20The applicant did not notify the respondent of the accident in accordance with section 32(1) and has not provided a reasonable explanation for the delay. Accordingly, pursuant to section 55 (1)1 of the Schedule I find that the applicant is statute barred from proceeding with her application.
ORDER
21The applicant is barred from proceeding with her application before the Tribunal.
Released: April 25, 2024
Kate Grieves
Adjudicator