Wesley v. The Dominion of Canada General Insurance Company, 2024 CanLII 67362

Licence Appeal Tribunal

Citation: Wesley v. The Dominion of Canada General Insurance Company, 2024 ONLAT 23-011833/AABS-PI

Licence Appeal Tribunal File Number: 23-011833/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:

Annette R. Wesley

Applicant

and

The Dominion of Canada General Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Monica Zakhari, Counsel

For the Respondent:

Kylie Weber, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Annette Wesley (the "Applicant") was involved in an automobile accident on November 14, 2021 and sought benefits from the Dominion of Canada General Insurance Company (the "Respondent") 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 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 for benefits as she failed to submit the application for benefits (OCF-1) within the time prescribed by the Schedule, and failed to provide a reasonable explanation for the delay?

ii. Is the Applicant barred from proceeding with her claim for non-earner benefits ("NEBs") because she failed to submit a disability certificate within 104 weeks of the accident?

RESULT

3The Applicant may proceed with her claim for benefits because she provided a reasonable explanation for her delayed submission of an OCF-1.

4The Applicant is barred from claiming entitlement to NEBs because she failed to submit a disability certificate within 104 weeks of the subject accident.

ANALYSIS

Background

5The Applicant sustained a fractured vertebrae and other injuries in a single vehicle accident and was hospitalized in Northern Ontario for a period of 8 days thereafter. She attempted to stay at a hotel in the city following her discharge from the hospital however, funding issues and her assistive care needs forced her to move into her then boyfriend's residence, which is in a remote community a few hours drive from the hospital.

6An adjuster from the Respondent (the "Adjuster") and the Applicant spoke on the telephone on September 28, 2020. During that call, the Applicant provided her remote address as well as the address of the hotel, so that the Respondent could send her the forms to initiate her claim. The forms were sent to both locations following the call.

7On September 30, 2020, the Adjuster and the Applicant spoke on the telephone again. The Applicant advised that her hotel stay was ending and that she will be moving in with her boyfriend, in a remote community. It was determined that the Applicant would not get the package sent to the hotel and the Respondent agreed to send another accident benefit package to the Applicant. This time, the package was sent to her boyfriend's residence.

8The accident benefit package was sent to the Applicant again, on October 19, 2020. At that time, the Adjuster faxed a copy of the accident benefit forms to a community centre, at the Applicant's request.

9Having not received the forms to initiate the claim, the Respondent wrote to the Applicant at her boyfriend's residence on November 2, 2020, and advised that it never received the completed forms and that it will close her file if they are not submitted. Follow-up letters were sent to the Applicant, via the same address, on November 23, 2020 and January 27, 2021.

10On March 18, 2021, the Adjuster spoke with the Applicant's boyfriend via telephone. He advised the Adjuster that the Applicant was going to have surgery on her back. The surgery occurred on April 13, 2021, and the Applicant was hospitalized thereafter until April 18, 2021. It appears as though the Applicant and Respondent never communicated following the call between the Adjuster and the Applicant's boyfriend, until the Applicant submitted the completed forms to initiate her claim, on October 27, 2022. On February 15, 2024, she submitted a disability certificate for the first time, dated January 30, 2024.

11The Respondent submits that the Applicant is barred from proceeding with her claim for benefits because she failed to submit a completed application for benefits within 30 days of receipt of the forms. The Applicant submits that her claim should be accepted because she never received the accident benefit forms personally, or in the alternative, she has a reasonable explanation for the delayed filing of her claim.

Initiating a claim for benefits and the reasonable explanation provision

12The applicant is required to submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms, pursuant to section 32(5) of the Schedule.

13Section 34 of the Schedule 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.

14The interpretation of "reasonable explanation" is outlined 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.

15The Respondent submits that it made numerous attempts to ensure the Applicant received the forms to initiate her claim for accident benefits and that she is deemed to know the applicable period for submitting her application for benefits. The Respondent further submits that the Applicant's explanation for the delay has varied over time and is not reasonable. It submits that it is prejudiced by the delay as it has been denied the opportunity to obtain medical opinions and surveillance evidence.

16The Applicant submits that it cannot be established that the Respondent ever sent her the proper forms to complete in order to initiate her claim for benefits and that she was not properly warned of the consequences arising out of a failure to submit the forms to initiate a claim. She further submits that the Respondent is precluded from raising the issue of timeliness with respect to her claim because it never denied coverage due to timeliness and that the issue of timeliness only arose once an Application with the Tribunal was initiated.

17If it is determined that the Applicant received the forms to complete, she submits that she has a reasonable explanation for the delay. The Applicant submits that she has struggled with mental health issues and drug addiction, homelessness and poverty, a lack of resources, and a lack of knowledge regarding the benefits available to her and the ability to retain counsel.

The Applicant received the forms to complete

18I find on a balance of probabilities that the Applicant received the accident benefit forms to complete.

19The evidence demonstrates that the Applicant received the forms on or around October 19, 2020. Records from a community health centre, separate from the one mentioned earlier, note that a representative made attempts to contact the Applicant in order to complete her accident benefits application. One note, dated April 6, 2021, expressly refers to the accident benefit package. An earlier note, dated April 1, 2021, states the forms needed to be returned within 30 days, and calculated that to be November 19, 2020. These notes are clear evidence indicating that the Applicant had received the accident benefit package as she must have provided it to the community centre while seeking assistance.

20Accordingly, the Applicant failed to submit her application within the 30-day period. She returned the forms to the Respondent on October 27, 2022. Thus, she has not complied with the timeline as required by section 32(5) and must provide a reasonable explanation pursuant to section 34.

Does the Applicant have a reasonable explanation for the delay?

21I find on a balance of probabilities that the Applicant's reasons are credible and are a reasonable explanation for the delayed initiation of her claim.

22The Applicant submits that following the accident, she has struggled with drug addiction, homelessness and poverty, mental health issues, a lack of knowledge of availability of benefits, and the ability and resources to retain counsel. I note in addition to these submissions, the Applicant was incarcerated for a period of time after the accident. In response, the Respondent submits that the Applicant was aware of the process to apply for benefits and that her reasons for the delay have been inconsistent following the accident and that they are not credible or worthy of belief.

23I find that the Applicant's explanation for the delay is credible and worthy of belief. The records before me support the Applicant's claims. She has endured considerable hardship, both at the time of the accident and to-date. She has dealt with substance abuse issues prior to and following the accident and recently entered into a suboxone treatment program. The Applicant could not return to her primary residence following the accident due to its remoteness and her need for medical care. Her primary residence is heated by wood, making it difficult for her to reside there during cold periods on account of her limited mobility following the accident. As a result, she has lived in several places following the accident, and has also been incarcerated for a period. All these factors mitigate in favour of the Applicant and indicate that ignorance of the law is not her only explanation. Taking into account her dominant injury and personal circumstances – a fracture in her vertebrae and a history of substance abuse – it is equitable to relieve her against the consequences of the failure to comply with the time limit.

24I find the minor inconsistencies in the Applicant's explanation to be insufficient to upset the overall persuasiveness of her explanation. I agree with the Respondent that it is unlikely that the Applicant was unaware of the extent of her injuries considering she was virtually immobilized with a back brace for three months and eventually required surgery. Indeed, the community health centre records indicate attempts to help the Applicant complete her claims forms, but I accept the Applicant's testimony from her examination under oath and conclude that she was unaware of the consequences for her inaction. I note that the log notes and letters from the Respondent to the Applicant provide little information to assist her with the claims process, as required by section 32(2) of the Schedule, and none of the evidence indicate that she can retain counsel to assist with the claims process. It was only when a family member was involved in a subsequent accident and retained counsel that the Applicant became aware of her legal options.

25Accordingly, the Applicant failed to submit her claims forms in the time required by the Schedule, but she has provided a reasonable explanation for the delay.

Prejudice

26I find that the Respondent is not unduly prejudiced by my finding that the Applicant has provided a reasonable explanation for the delay.

27The Respondent submits that it is prejudiced by the delay because it affects its ability to adjust the Applicant's claim. It notes that memories fade over time which may affect the Applicant's ability to remember relevant symptoms or treatment providers. The Respondent also notes that intervening events, such as a slip and fall, impede its ability to assess the Applicant's injuries and seek contemporaneous medical and surveillance evidence. The Applicant submits that there is no prejudice to the Respondent for having to adjust a claim it was aware of and that being barred from proceeding with her claim would only increase her hardship and outweighs the prejudice to the Respondent.

28I find that the prejudice to the Applicant if the claim is barred outweighs the prejudice to the Respondent. The Applicant sustained significant objective injuries as a result of the accident and likely has ongoing needs as she recovers. The records from the hospitals and other institutions, such as community care centers and the incarceration centre she attended, can all address her injuries and provide insight on what her needs may be. Barring the Applicant from access to the supports she requires as part of her recovery would have a greater impact to her than the Respondent if it is forced to accept an untimely claim.

Section 36(3) bars the Applicant from receiving non-earner benefits ("NEBs")

29The Applicant is not entitled to NEBs by the operation of section 36(3) of the Schedule.

30Section 36(3) of the Schedule bars the Applicant from receiving a specified benefit, such as NEBs, prior to the submission of a disability certificate. This provision assists the Respondent in that it is not liable to pay a specified benefit before the Applicant has made a claim for one. It ensures that the Respondent is aware of the claim at a time contemporaneous with it so that it may obtain the relevant information to properly adjust the claim.

31Accordingly, the Applicant is not entitled to NEBs because she failed to submit a disability certificate during her period of claim. Section 12(3)(c) of the Schedule limits the Applicant's claim for NEBs to no more than two years following the accident. Considering that the Applicant submitted her disability certificate on February 15, 2024, more than three years after the accident and more than a year after her potential eligibility period for NEBs, it follows that the Respondent is not liable to pay NEBs to the Applicant.

ORDER

32The Applicant may proceed with her claim for benefits because she has provided a reasonable explanation for her delayed application for benefits. However, the Applicant is barred from claiming entitlement to NEBs because she failed to submit a disability certificate within the period of claim.

33The hearing on the Applicant's entitlement to an attendant care assessment and award will proceed to the substantive hearing, in writing.

34Except for the provisions contained in this Order all previous orders made by the Tribunal remain in full force and effect.

35If the parties resolve the issues in dispute prior to the hearing, the applicant shall immediately advise the Tribunal in writing.