Licence Appeal Tribunal File Number: 23-014535/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:
Bereket A. Mekonnen
Applicant
and
Sonnet Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Ivy So, Paralegal
For the Respondent:
Karly Lyons, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Bereket A. Mekonnen (“the applicant”) was involved in an accident on September 24, 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 Sonnet 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
2According to the case conference report and order (“CCRO”) dated May 13, 2024, the preliminary issue is:
i. Is the applicant barred from proceeding with their claim for accident benefits as they failed to submit the application for benefits (OCF-1) within the time prescribed by the Schedule?
PROCEDURAL ISSUE
3There were two preliminary issues initially, however the respondent indicated in its submissions that the first was withdrawn.
4Therefore, the sole very narrow issue before me, identified in the CCRO, is whether the applicant is barred from applying to the Tribunal because he did not comply with the requirement to provide a completed OCF-1 within 30 days of receiving accident benefits forms, per section 32(5).
5However, much of the respondent’s submissions on the preliminary issue address the application of section 32(1). The respondent submits that the applicant is barred from proceeding with his application to the Tribunal due to his late reporting of his injuries and the circumstances giving rise to his claim for benefits, and his failure to provide a reasonable explanation for the delay. However, the CCRO did not identify a preliminary issue with respect to section 32(1). If there was an error omitting a preliminary issue from the CCRO, it was open to the respondent to file a notice of motion, which it did not.
6The applicant has a right to receive notice of the issue in dispute. In my view, it would be inappropriate for me to consider dismissing the application on the basis of non-compliance with s. 32(1). Therefore, I have limited my analysis to issue (ii) as listed in the CCRO, identified above.
RESULT
7The applicant is not barred from proceeding with his claim.
ANALYSIS
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.
9Once an insurer receives notice of an applicant’s intention to apply for statutory accident benefits, the insurer must provide the applicant with the appropriate OCF-1 forms, a written explanation of the benefits available, information to assist the person in applying for benefits and information on the election relating to the specified benefits, if applicable (s. 32(2)). Pursuant to s. 32(5) of the Schedule, the applicant must then submit a completed and signed application for benefits to the respondent within 30 days after receiving the forms.
10Section 34 states that if the insured person does not comply with the time limits, the insured person may still be entitled to benefits if they have a reasonable explanation for the delay.
11Pursuant 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.
12The interpretation of “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada, 2003 ONFSCDRS 92, 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.
The applicant did not submit a completed application within the timelines
13The accident occurred on September 24, 2021. On May 24, 2022 the applicant reported his accident benefits claim. An OCF-1 was sent to the applicant the same day by email and indicates that the completed application must be submitted within 30 days. A follow up email was sent by the respondent on May 30, 2022.
14The applicant retained counsel in June 2022. By letter dated June 20, 2022 the applicant’s representative wrote to the respondent and requested a copy of the accident benefits file. A second request was sent on July 21, 2022. The log notes indicate that as of June 30, 2022, the respondent was aware of the legal representative being retained and the submission of a disability certificate, but it seems that there was no response to their requests.
15The completed application was submitted to the respondent on September 20, 2022.
The applicant has a reasonable explanation for the delay
16The onus is on the applicant to establish that he has a reasonable explanation for the delay. The applicant submits that because his representative was not provided with a copy of the accident benefits file promptly, the representative was not aware that the OCF-1 had not been submitted. The applicant submits that he has limited English skills and was relying on his representative to complete and submit the OCF-1.
[17] The respondent submits that these explanations should be disregarded, because they are submissions, not evidence, and it was the first time this explanation was provided. The respondent submits that the explanation provided under oath was that it was his first time dealing with this situation, he had limited knowledge, is a newcomer with limited English, and was focused on his family.
18I find that the applicant’s explanation is credible and reasonable, and supported by the evidence. Consistent with his examination under oath, the applicant had limited familiarity with the accident benefits process, he had limited English skills and was relying on his representative for his claim. The evidence shows that the applicant’s representative made attempts to obtain a copy of the accident benefits file. Finally, on September 20, 2022, the applicant reiterated the request for the accident benefits file, and enclosed the OCF-1. It is unclear to me at what point the representative became aware of the fact that no OCF-1 had been filed, since the representative still had not been provided with a copy of the accident benefits file. If the respondent had replied to the earlier requests for the file, the representative would have been made aware that no OCF-1 had been submitted. Therefore, I find that the respondent contributed to the delay in the submission of the OCF-1.
19While the respondent was prejudiced by the delay in the submission of the OCF-1, having been deprived of the ability to collect contemporaneous evidence, the hardship to the applicant in barring his entire claim is more significant. There was approximately a three-month delay, which may not have occurred at all if the respondent had replied to the representative’s inquiries.
20Given that the respondent contributed to the delay, I find that it would be equitable to relieve against the consequences of the failure to comply with the time limit.
ORDER
21The applicant has provided a reasonable explanation for the delay in submitting a completed OCF-1 pursuant to section 34, therefore the applicant is not barred from proceeding with his application before the Tribunal.
Released: August 7, 2024
___________________________
Kate Grieves
Adjudicator