PRELIMINARY ISSUE HEARING DECISION AND ORDER
Licence Appeal Tribunal File Number: 23-011566/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:
Rukmanidevi Kathirgamanathan
Applicant
and
RSA Insurance Company
Respondent
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Georgiana Masgras, Counsel
For the Respondent:
Dale Stuckless, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Rukmanidevi Kathirgamanathan (“the applicant”) submitted an application for accident benefits to RSA Insurance Company (“the respondent”) as a result of a motor vehicle accident which occurred on June 21, 2019 involving her husband. The applicant was not involved in the accident.
2The applicant 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 the respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
3According to the case conference report and order (“CCRO”) dated March 22, 2024, the preliminary issue to be decided is:
i. Is the applicant barred from proceeding with her claim for accident benefits as she failed to submit the application for benefits (OCF-1) within the time prescribed by the Schedule?
RESULT
4The applicant not barred from proceeding with her claim.
ANALYSIS
Background
5The applicant was not actually involved in the subject accident, but rather her husband was involved in the accident that occurred on June 21, 2019. The applicant’s claim for benefits reportedly stems from the allegation that her physical and mental health deteriorated after the subject accident as a result of her husband’s inability to care for her due to his involvement in the accident.
6The applicant submitted an application for accident benefits (OCF-1) on February 13, 2023.
The Law
7Section 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.
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, 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.
9Section 34 states that if the insured person does not comply with the time limits, the insured person may still be entitled to benefits if they have a reasonable explanation for the delay.
10Pursuant 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.
11The very narrow issue before me, identified in the CCRO, is whether the applicant is barred from applying to the Tribunal because she did not comply with the requirement to provide a completed OCF-1 within 30 days of receiving accident benefits forms, per section 32(5).
12However, the respondent’s submissions on the preliminary issue address the application of section 32(1). The respondent submits that the applicant is barred from proceeding with her application to the Tribunal due to her late reporting of her injuries and the circumstances giving rise to her claim for benefits, and her failure to provide a reasonable explanation for the delay. The respondent did not make any submissions or provide any evidence with respect to section 32(5), such as when the accident benefits forms were provided to the applicant. The denial letters relied on by the respondent refer to the requirements set out in section 32(1), not section 32(5).
13The applicant has not filed any submissions in response to the preliminary issue. In my view, it would be inappropriate for me to dismiss the application on the submissions before me as they do not address the very narrow issue in dispute. The applicant has a right to receive notice of the issue in dispute. The CCRO did not identify a preliminary issue with respect to section 32(1).
ORDER
14The applicant is not barred from proceeding with her application before the Tribunal.
Released: May 13, 2024
___________________________
Kate Grieves
Adjudicator