Licence Appeal Tribunal File Number: 23-005173/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:
Zohra Rashid
Applicant
and
Economical Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Sara Benitez Rodriguez, Counsel
For the Respondent:
Suhasha Hewagama, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Zohra Rashid (“the applicant”), was involved in an automobile accident on November 21, 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 Economical 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 her claim benefits as she failed to notify the respondent of the circumstances giving rise to the 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
No submissions from the applicant
4The parties participated in a case conference on January 4, 2024. The respondent raised the preliminary issue, and it was identified on the case conference report and order (“CCRO”) dated January 17, 2024. The preliminary issue was ordered to be heard in writing prior to the substantive issues in dispute and a timetable set out the deadlines for the parties to serve and file their written submissions and evidence.
5The respondent served and filed its submissions within the timelines. No submissions were filed on behalf of the applicant.
Background
6The applicant was involved in an accident on November 21, 2021. The respondent was first notified of the applicant’s intention to seek accident benefits on April 7, 2022 when the applicant submitted an OCF-1.
7The respondent acknowledged receipt of the OCF-1 and requested a reasonable explanation for the delay in claiming benefits. Following her attendance at an examination under oath (“EUO”) on August 10, 2022, the respondent advised the applicant that benefits were not payable as she did not have a reasonable explanation for the delay.
The Law
8Section 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.
9Section 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.
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 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:
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.
12The onus is on the applicant to establish that she has a reasonable explanation for the delay.
13I find that the applicant did not comply with the timelines set out in section 32(1). In the absence of any submissions from the applicant, I am unable to determine if she has a reasonable explanation for the delay. I find that the applicant has not met her burden to establish a reasonable explanation for the delay, pursuant to s. 34.
14The 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
15The applicant is barred from proceeding with her application before the Tribunal.
Released: May 24, 2024
Kate Grieves
Adjudicator