23-013575/AABS-PI
Licence Appeal Tribunal File Number: 23-013575/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:
Mohammed Alkhaled
Applicant
and
Economical Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Mark Stoiko, Counsel
For the Respondent:
Matthew C. Owen, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Mohammed Alkhaled (“the applicant”) was involved in an accident on December 3, 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 ISSUES IN DISPUTE
2The preliminary issues to be decided are:
i. Is the applicant barred from proceeding with his claim for benefits as he failed to submit the application for benefits (OCF-1) within the time prescribed by the Schedule?
ii. Is the applicant barred from proceeding with his claim for all of the accident benefits claimed in the application as he 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?
iii. Is the applicant barred from proceeding with his claim for benefits because the applicant failed to submit information that was requested pursuant to section 33(1) of the Schedule?
RESULT
3The applicant is statute barred from proceeding with his application pursuant to section 55 of the Schedule.
NO SUBMISSIONS ON BEHALF OF APPLICANT
4The case conference report and order identified the preliminary issues, indicates that the issues were to be heard prior to the substantive issues, and set out a timetable for the parties’ submissions. Despite the foregoing, the applicant did not file any written submissions.
ANALYSIS
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.
6Pursuant to section 32(5) the applicant is required to submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms.
7Section 34 states that if the insured person does not comply with those time limits, the insured person may still be entitled to benefits if they have a reasonable explanation for the delay.
8Pursuant 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.
The applicant failed to comply with section 32(1) and (5)
9The applicant was involved in an accident on December 3, 2022. On or about December 5, 2022, the applicant reported the property damage claim. The accident benefits adjuster made several attempts to contact the applicant by email and telephone in December 2022. The applicant responded to the property damage adjuster by email and telephone, but did not respond to the accident benefits adjuster. After failed attempts to contact the applicant, by email dated December 19, 2022 the respondent enclosed an accident benefits package, including an OCF-1 and a description of available benefits. The correspondence notes that, if the applicant intended to make a claim for accident benefits, that the OCF-1 must be returned within 30 days, and that a failure to do so without a reasonable explanation would jeopardize the claim.
10The applicant did not respond to this correspondence at any time, and the potential accident benefits claim file was closed. On October 11, 2023, the applicant’s legal representative delivered an OCF-1, some 10 months after the accident and the respondent’s delivery of the blank OCF-1 to the applicant. The respondent subsequently advised the claimant that the OCF-1 was received more than 30 days after it was delivered to him, and that he had failed to notify the insurer of his intention to claim accident benefits within 7 days or as soon as practicable. The respondent inquired as to whether the applicant had a reasonable explanation for the delay.
11In light of the foregoing, I find that the applicant did not notify the respondent of the accident in accordance with section 32(1) and did not submit his application within the timelines pursuant to section 32(5). The applicant has not provided any explanation for the delay.
12Therefore, I find that the application is barred pursuant to section 55(1)1 for failing to notify the insurer of the circumstances giving rise to a benefit and failing to submit an application for the benefit within the times set out in the Schedule.
Section 33 non-compliance
13Given my findings above that the applicant’s claim is statute barred pursuant to section 55, I find it unnecessary to deal with the issue of whether the applicant was non-compliant with the respondent’s requests for information pursuant to section 33.
ORDER
14The applicant is statute barred from proceeding with his application pursuant to section 55(1)1 of the Schedule.
15The application is dismissed.
16The Tribunal shall vacate any date that has been scheduled for a substantive issue hearing. The Tribunal file will be closed.
Released: June 28, 2024
___________________________
Kate Grieves
Adjudicator