Citation: Tucker v. Economical Insurance Company, 2024 ONLAT 22-005607/AABS

Licence Appeal Tribunal File Number: 22-005607/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:

Michelle Tucker

Applicant

and

Economical Insurance Company

Respondent

DECISION

VICE-CHAIR: Craig Mazerolle

APPEARANCES:

For the Applicant: Steven Coons, Counsel

For the Respondent: Stephen Whibbs, Counsel

HEARD: In Writing

OVERVIEW

1Michelle Tucker, the applicant, was involved in an automobile accident on January 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 the respondent, Economical Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2At the case conference held on February 16, 2023, several preliminary issues were identified. The Tribunal ordered the preliminary issues to be heard alongside at the substantive issues at a single written hearing.

PRELIMINARY ISSUES

3The preliminary issues to be decided are:

i. Is the applicant barred to a hearing for this application because the applicant failed to notify the insurer of her intention to apply for benefits within seven days after the accident, pursuant to s. 32(1) of the Schedule?

ii. Is the applicant barred to a hearing for this application because she failed to submit a completed and signed application for benefits within 30 days after receiving the application forms, pursuant to s. 32(5) of the Schedule?

SUBSTANTIVE ISSUES

4The substantive issues in dispute are:

i. Is the applicant entitled to $3,312.05 for occupational therapy services, proposed by Ross Rehabilitation in a treatment plan/OCF-18 dated March 18, 2021?

ii. Is the applicant entitled to $253.00 for ambulance services and assistive devices, submitted on a claim form/OCF-6 dated November 5, 2021?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find the applicant is barred from proceeding with a hearing for the substantive issues in dispute due to her failure to submit a completed and signed application for benefits within 30 days after receiving the application forms, pursuant to s. 32(5) of the Schedule.

ANALYSIS

6I find the applicant failed to submit a completed and signed application for benefits within 30 days after receiving the application forms. I further find she has not provided a reasonable explanation for this delay. The substantive issues are barred from proceeding to a hearing, pursuant to s. 55(1) of the Schedule.

7Section 32(1) of the Schedule provides that a person who intends to apply for accident benefits shall notify the insurer of their intention no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day. Pursuant to s. 32(5), the applicant must submit a completed and signed application for benefits to the respondent within 30 days after receiving the forms.

8Section 55(1) provides that an applicant shall not apply to the Tribunal if they have not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted an application for the benefit within the times prescribed by the Schedule. However, s. 34 states that “a person’s failure to comply with a time limit set out in this Part [which includes s. 32] does not disentitle the person to a benefit if the person has a reasonable explanation.”

9The onus is on the applicant to establish a “reasonable explanation” for the delay. The interpretation of “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada, 2003 ONFSCDRS 92, and was reiterated in K.H. v. Northbridge General Insurance Company, 2019 CanLII 101613 (ON LAT). The guiding principles are summarized as follows:

a. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.

b. The onus is on the insured person to establish a “reasonable explanation”.

c. Ignorance of the law alone is not a “reasonable explanation”.

d. 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.

e. The lack of prejudice to the insurer does not make an explanation automatically reasonable.

f. 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.

10Though the requirements under ss. 32(1) and 32(5) were both listed as preliminary issues, the parties’ submissions mainly focused on the latter: i.e., the requirement to submit an application for benefits within 30 days after receiving the forms. Considering my findings regarding s. 32(5), I do not find it necessary to make a ruling on s. 32(1).

11After first contacting the respondent about the accident on March 8, 2021, the respondent mailed the applicant an application for benefits later that day. There is no indication in the adjuster’s log notes as to how the application was mailed, be it ordinary mail or courier. However, according to s. 64(18) of the Schedule, even if the respondent used ordinary mail, the applicant is presumed to have received the application by March 15, 2021, i.e., 5 business days later. The respondent received the completed application from the applicant on October 21, 2021. As such, the applicant missed the 30-day deadline by at least 191 days. The respondent argued that this delay is significant, and the applicant has not provided a reasonable explanation. According to the respondent, the applicant may contend that she was experiencing issues with addictive substances during this time, but she had retained counsel shortly after receiving the application and medical records show she was carrying on an active lifestyle at the time. For instance, her family physician, Dr. Tom McMillan, reported she was spending time with her family, seeking physiotherapy, etc.

12The applicant argued that she has a reasonable explanation, as she was experiencing issues with mental health and addictions. She also broke her right foot during the accident, and the resulting pain and mobility issues impacted her day-to-day life. According to the applicant, these issues are well-documented by Dr. McMillan, as well as in an OCF-18 for an attendant care assessment (submitted March 18, 2021). Finally, the applicant cited case law from the Tribunal where insured persons in similar circumstances were found to have had reasonable explanations for missed deadlines: Shaver v. Onlia, 2023 CanLII 58481 (ON LAT) and R.C. v. Co-Operators, 2020 CanLII 98748 (ON LAT).

13I understand the applicant’s explanation to be that her longstanding issues with mental health and addictions (when paired with her broken foot) meant she was unable to meet her obligations under s. 32(5). I find this is not a reasonable explanation for the missed deadline.

14Starting with the initial stage of the framework from Horvath and K.H., I first find the applicant’s explanation is credible or worthy of belief. Briefly, I can accept that addictions, mental health struggles, and a broken foot may together impact one’s ability to perform the tasks needed to complete an application for benefits. For example, meeting with a legal representative may be impacted by mobility issues, while mental health struggles and addictions may impact one’s ability to remember key details. However, turning to the next stage of the analysis, I do not find that this explanation is reasonable in the specific circumstances of this case.

15I do accept that the medical records show the applicant was experiencing significant issues with addictions and mental health struggles following the accident. Most notably, at an in-person visit with her mother on August 10, 2021, Dr. McMillan diagnosed the applicant with severe opioid use disorder. I also accept that the applicant repeatedly informed Dr. McMillan that she was in severe pain from her broken foot, and the OCF-18 for an attendant care assessment speaks to her mobility issues (e.g., reliance on crutches, falls, etc.).

16Yet, despite these significant challenges, it is also apparent from the medical records that the applicant was still able to complete many day-to-day activities, such that it is not reasonable to accept that the applicant was unable to complete the application within the prescribed timeframe. Put another way, the delay is not reasonable in light of her personal characteristics (namely, the functional capacities demonstrated by the medical evidence) and my finding that a “reasonable person” would understand that a form related to one’s treatment should be completed in a timely manner.

17To start, the records from Dr. McMillan demonstrate that the applicant was able to complete a number of day-to-day tasks. For instance, several weeks after receiving the application forms, the applicant reported on April 6, 2021 that she “overdid it at Easter dinner”. Then, on April 8, 2021, the applicant called Dr. McMillan and informed him that she went to a walk-in clinic. Several weeks later, on April 23, 2021, the applicant reported her foot pain is worse on the weekends as “she has her son, cooks for grandmother”. Further, following an in-person visit on May 3, 2021, Dr. McMillan wrote the applicant had received “physiotherapy through hospital and her lawyer”.

18Again, I accept that these entries show the applicant was experiencing the medical issues that form the basis of her explanation. Yet, they also lend credence to the position that the applicant was able to engage in the type of tasks needed to complete an application, e.g., attending appointments, seeking assistance from a lawyer, etc.

19I would then note that the applicant was aware of, and able to interact with, the accident benefits regime during this period, as evidenced by the OCF-18 submitted immediately following receipt of the application for benefits. I recognize that the requirements on an insured when submitting an OCF-18 are much less onerous than completing an application for benefits—as an OCF-18 is mainly completed by a healthcare practitioner. However, I still find this filing shows the applicant was able to obtain assistance related to her accident benefits claim.

20Finally, I note that the adjuster’s log notes demonstrate that the applicant was aware of her obligations under the Schedule, and that efforts were being made to try and help her complete the application. Specifically, on May 11, 2021, the adjuster wrote that the applicant’s representative had been trying to collect information for her application. Yet, the applicant was reportedly having trouble remembering the date of the accident, the driver of the vehicle she was in, etc. I recognize that this log note evidences the issues the applicant was having trying to complete the application (including her recollection of key information), but I also find it shows her ability to obtain assistance with this application process. It also evidences her knowledge of her filing obligations.

21When these personal circumstances are accounted for alongside the “reasonable person” standard, I do not find this explanation is reasonable. The applicant had the functional capacity and assistance needed to accomplish the tasks related to completing an application for benefits. Then, as noted above, I find a reasonable person would understand that a form related to one’s treatment should be completed in a timely manner.

22As established in Horvath and K.H., the analysis under s. 34 also requires the Tribunal to balance “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.” I accept that the health challenges facing the applicant are significant. I also accept that the applicant will face hardship if she is unable to continue with her claim for accident benefits, especially as it relates to funding for her broken foot.

23In contrast, the respondent has not established any specific prejudice it faces from this delay, though I can infer that delay will negatively impact an insurer’s ability to respond effectively to a claim. For instance, as noted in K.H. at paragraph 26: “…delays prevent an insurer from requesting contemporaneous, medical examinations and records.” Overall, though, I find the negative impact facing the applicant greatly outweighs any prejudice facing the respondent.

24Yet, even with this imbalance, I do note that the analytical framework for s. 34 instructs me that: “The lack of prejudice to the insurer does not make an explanation automatically reasonable.” Further, this balancing of prejudice and equity is one of the considerations in the overall framework from s. 34.

25Taken together, though I am mindful of the significant impact that this bar on proceedings will have on the applicant, I find she has not provided a reasonable explanation. Rather, when considering the reasonableness of the explanation in light of her personal characteristics and the “reasonable person” standard, I find the applicant has not met her onus.

26Finally, I do not find the case law cited by the applicant is persuasive. Not only am I not bound by decisions from my fellow adjudicators, but the circumstances in these cases are different than the present case. For instance, in R.C., the insured person had been incarcerated, while the insured person in Shaver was not aware that pedestrians can access accident benefits. These circumstances are not present in the applicant’s case. Regardless, the analysis required by s. 34 is highly fact-specific, as the personal circumstances of an applicant and the relative prejudice facing the particular parties at hand must be considered.

27Due to this breach of s. 32(5), the applicant’s application is barred from proceeding to a hearing, pursuant to s. 55(1) of the Schedule.

ORDER

28I find the applicant failed to submit a completed and signed application for benefits within 30 days after receiving the application forms. I further find she has not provided a reasonable explanation for this delay. The substantive issues are barred from proceeding to a hearing, pursuant to s. 55(1) of the Schedule.

29The application is dismissed.