Citation: Chahal v. Economical Insurance Company, 2024 ONLAT 23-012228/AABS-PI
Licence Appeal Tribunal File Number: 23-012228/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:
Sarbjit Chahal
Applicant
and
Economical Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Apurva Shah, Counsel
For the Respondent:
Jessica Meyerovich, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Sarbjit Chahal (“the applicant”), was involved in an automobile accident on November 16, 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 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 is barred from proceeding with her claim benefits 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 November 16, 2022. The respondent was first notified of the applicant’s intention to seek accident benefits on March 7, 2023. The applicant submitted her initial application for accident benefits on March 23, 2023.
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, 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.
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 purported “reasonable 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, she attempted to resolve her injuries using home remedies and then sought assistance when it proved futile.
11I 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.
12As outlined in Horvath, ignorance of the law alone is no excuse. Accordingly, the applicant’s first argument is untenable.
13Secondly, while the applicant submits that she self-medicated and attempted home remedies for her injuries, she has not provided any evidence to substantiate this claim. The applicant has not provided receipts for any medication, devices, or treatment, or even advised what those home remedies or treatments were. The clinical notes and records from her family doctor indicate that the applicant attended her doctor’s office for other ailments but did not report any injuries, medications, or treatments due to the accident.
14The applicant relies on 17-003686 v Gore Mutual Insurance Company, 2018 CanLII 131128 (ON LAT) in support of her claim, where there was a several month delay in the submission of an OCF-1. I find that case distinguishable. The Tribunal considered the argument that the applicant expected her accident symptoms would resolve without treatment. However, it that was only one of several arguments advanced by the applicant, including that she did not receive the application package that was sent by the respondent because she separated from her husband and moved, and that the respondent did not advise her of the timelines for submitting an application.
15Here the applicant claims that she did not advise of her claim for accident benefits because she was attempting to resolve her injuries with self-medication and home remedies but has not provided any evidence of those efforts.
16The delay in reporting the claim for accident benefits has prejudiced the insurer by depriving it of the opportunity to obtain contemporaneous information regarding the applicants alleged injuries, to obtain contemporaneous medical documentation and investigate and assess the applicant’s claim.
17Having 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.
18The 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
19The applicant is barred from proceed with her application before the Tribunal.
20The application is dismissed. The Tribunal will vacate the hearing date for the substantive issues.
Released: June 18, 2024
___________________________
Kate Grieves
Adjudicator