Moustafa v. The Dominion of Canada General Insurance Company, 2024 CanLII 38464

Licence Appeal Tribunal

Citation: Moustafa v. The Dominion of Canada General Insurance Company, 2024 ONLAT 23-009021/AABS-PI

Licence Appeal Tribunal File Number: 23-009021/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:

Shaaban Moustafa

Applicant

and

The Dominion of Canada General Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Joshua Meshack, Counsel

For the Respondent:

Sarah E. Scott, Counsel

Heard:

By Way of Written Submissions

OVERVIEW

1Shaaban Moustafa (“the applicant”) was involved in an incident on September 19, 2021 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 Dominion of Canada General 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:

i. Is the applicant barred from proceeding with his claim for benefits because he failed to submit the application for benefits (OCF-1) within the time prescribed of 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 s. 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 and Allstate Insurance Company of Canada, 2003 ONFSCDRS 92 (“Horvath”), 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.

Background

7The applicant was involved in an accident on September 19, 2021 when exiting a parking lot. The respondent was notified of the accident when the applicant spoke with an accident benefits adjuster by telephone on November 2, 2021. The log notes indicate that he reported he had no physical injuries related to the car accident. He advised that he was subsequently assaulted one week later on September 26, 2021 by three individuals, which left him unconscious. He was taken to hospital by ambulance and was in a coma for a few days. The adjuster advised that the injuries from the assault were not covered under his car insurance. The applicant was asked if he had any injuries related to the car accident and he stated that he was scared to drive. The adjuster indicated that an accident benefits application would be sent for possible psychological treatment related to his fear of driving.

8By letter dated November 3, 2021 an accident benefits package explaining the process for applying for accident benefits, and containing a blank OCF-1 was sent to the applicant. A follow up letter was sent dated December 6, 2021, advising that under s. 32(5) of the Schedule, he was required to submit a completed and signed application for benefits to the respondent within 30 days of receipt of the application forms.

9More than eight months later, the respondent received a letter from the applicant’s representative dated August 19, 2022 requesting pre-payment for some medical records. The respondent advised the representative by letter on August 29, 2022 that it was not yet in receipt of a completed OCF-1. Emails were exchanged at that point, and the representative indicated that a completed OCF-1 was sent via fax with a letter dated July 4, 2022 when their office was retained to represent the applicant. There is some dispute about whether that initial fax was sent successfully. In any event, even if I accept that the fax was sent successfully on July 4, 2021, the OCF-1 was submitted approximately seven months late.

Submissions

10The respondent submits that the applicant failed to notify it and submit a completed application for benefits pursuant to s. 32(1) and (5) of the Schedule.

11The applicant erroneously refers to this preliminary issue hearing as a motion by the respondent and submits that it is “case splitting”. The case conference report and order set out the preliminary issue hearing, that it was to be heard in advance of the substantive issues hearing and set out the deadlines for the parties’ submissions. It indicates that all orders were made on consent of the parties unless otherwise indicated.

12The respondent’s submissions were filed within the timelines set out in that order. The applicant did not file their submissions within the timelines. Upon inquiry by the Tribunal, the applicant’s representative’s office advised that counsel had missed the deadline due to inadvertence as a result of an unforeseen absence from work due to a personal emergency. He was advised to file a Notice of Motion if he was seeking an extension of the deadline to serve his submissions. He served the Notice of Motion, along with his preliminary issue hearing submissions on April 2, 2024.

13By order dated April 4, 2024, the Tribunal accepted the late-filed submissions for consideration and extended a deadline for the respondent to file its reply.

14I have considered all of the submissions before me.

The OCF-1 was filed late

15From the evidence, it is clear that the applicant submitted his OCF-1 well outside the timeline stipulated in s. 32(5) of the Schedule. Even if I accept that the fax was sent successfully on July 4, 2021, the OCF-1 was submitted approximately seven months late. However, I must consider whether the applicant has a reasonable explanation for the delay in submitting his OCF-1 pursuant to s. 34.

The applicant has not established a reasonable explanation for the delay

16The applicant’s submissions do not specifically address the preliminary issue in dispute. The applicant submits that the respondent’s “motion” should be dismissed, essentially because the respondent does not address the merits of the substantive issues in the application, including the catastrophic determination. The applicant refers to Rule 3.1 of the Common Rules of Practice and Procedure (“the Common Rules”) and submits that the Tribunal should not dismiss the application prior to a hearing on the merits, that it would be unduly prejudicial. The applicant raises the Court of Appeal decision in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 (“Tomec”) and submits that “hard limitation periods” are inconsistent with Tomec.

17The applicant seems to miss the point of the preliminary issue hearing. It is to determine whether the application is barred because of his failure to file his OCF-1 within the timelines established by the Schedule. If yes, then the entire application is barred, regardless of the merits of his claim. The merits of his claim to the medical benefits in dispute, or his potential catastrophic impairment designation has no bearing on this preliminary issue. Tomec is not relevant to the analysis of late applications, or the application of sections 32 and 34 of the Schedule. Tomec addressed the limitation period for disputing the denial of specific benefits (attendant care and housekeeping and home maintenance benefits) after a claimant had been found to meet the catastrophic determination. Submitting an application for catastrophic impairment (OCF-19) does not grant an exemption from the statutory provisions in section 32 and 34. Further, to apply Rule 3.1 in this context suggested by the applicant would override the provisions of the Schedule, rendering them meaningless. The Common Rules, like all rules made under the Statutory Powers Procedure Act, are to be interpreted in a manner consistent with all legislation to which they related (s. 25.1(3)).

18The applicant’s submissions do not discuss the applicable sections of the Schedule, nor the factors in Horvath. He does not explicitly provide an explanation for the delay. The applicant’s submissions suggest that his explanation for the delay in submitting the OCF-1 until July 2021 was due to (1) his limited understanding of English and (2) lack of knowledge with respect to insurance claims, accident benefits, or the claims process. He submits that putting such an onus on the applicant whereby he would lose his entitlement to accident benefits goes against the consumer protection nature of the Schedule.

19The Schedule itself places the onus on the applicant to establish a reasonable explanation for the delay.

20I am not persuaded that the applicant’s limited understanding of English is a reasonable explanation. In Kasbar v. Travelers Insurance, 2021 CanLII 30412 (ON LAT), the Tribunal did not find the fact that English was not the applicant’s first language to be a convincing reason for not applying for, or not making enquiries as to how to claim accident benefits in a timely manner. In this case, the applicant was able to speak to the adjuster in English regarding his impairments, and testified at an examination under oath (“EUO”) on January 30, 2023 that he was able to understand conversational English. At times during the EUO, the applicant answered in English without the aid of the interpreter. During his testimony, he explained that if he received important documents in the mail in English that he did not understand, he would ask someone for help to explain them.

21Consistent with the fourth factor in Horvath, a reasonable explanation must be assessed on a subjective-objective standard that considers an individual’s self-reported circumstances against what a reasonable person would do if faced with those circumstances. While I find the applicant’s explanation sincere, it fails the test for reasonableness. The applicant was able to obtain his own automobile policy of insurance and had dealings with a broker in that regard. He contacted the adjuster after the accident and was able to communicate with them sufficiently for an accident benefits package to be sent to him. It is unclear why, if he did not understand the documents he received by mail, he didn’t ask someone for assistance as was his usual manner.

22I reject the applicant’s second explanation that he lacked knowledge with respect to insurance claims, accident benefits, or the claims process. As noted in Horvath, ignorance of the law alone is not a reasonable explanation.

23I find that the applicant has not met his onus to establish that he had a reasonable explanation as set out in Horvath.

24I find that the applicant’s delay in applying for benefits has resulted in prejudice to the respondent. The purpose of the timeline set out in the Schedule is to allow the insurer to conduct contemporaneous assessments, gather medical records, and conduct surveillance if necessary. The respondent was deprived of the opportunity to conduct assessments for the purpose of determining entitlement to non-earner benefits within the 104 weeks post-accident, which is now in dispute before the Tribunal.

25The applicant has not provided a reasonable explanation for the delay in submitting the OCF-1 which has resulted in prejudice to the respondent. The applicant has not established hardship capable of outweighing that prejudice. He has not demonstrated that the Tribunal should relieve against the consequences of his failure to act.

Section 55

26Pursuant 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 submitted an application for the benefit within the times prescribed in s. 32.

27As outlined above, I find that the applicant did not 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

28The applicant has not provided a reasonable explanation for failing to apply for accident benefits within the time limits prescribed by the Schedule. His application is barred by s. 55(1)1 of the Schedule from proceeding with his application and is accordingly dismissed. The Tribunal shall vacate any date that has been scheduled for the substantive issue hearing.