Licence Appeal Tribunal File Number: 23-015198/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:
Dennis Bird
Applicant
and
Definity Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Kim Mohammed Sieudhan, Paralegal
For the Respondent:
Jessica Meyerovich, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Dennis Bird (“the Applicant”), was involved in an automobile accident on January 22, 2023 and sought benefits from Definity Insurance Company (the “Respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“the Schedule”).
2The Respondent refused to accept the Applicant’s application and he applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
3The preliminary issue to be decided is:
- 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, and failed to provide a reasonable explanation for the delay?
RESULT
4The Applicant is statute-barred from proceeding with his application.
ANALYSIS
Background
5The Applicant was involved in an accident on January 22, 2023. The Respondent was first notified of the Applicant’s intention to seek accident benefits on September 28, 2023, when the Applicant submitted an OCF-1.
The Law
6Section 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.
7Pursuant to section 32(5) the Schedule, the Applicant is required to submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms.
8Section 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.
9Pursuant 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.
10The 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.
11The Applicant concedes that he did not notify the Respondent within the compulsory timelines set out in section 32(1). Thus, the onus is on the Applicant to establish that he has a reasonable explanation for the delay, pursuant to section 34 of the Schedule.
12The Applicant has two purported “reasonable explanations”: first, he never received an accident benefits package from the Respondent, as required by section 32(2) of the Schedule. Second, his notice to the Respondent was delayed due to his pre-existing psychiatric condition and an honest belief that his physical injuries would resolve with time. He submits that he gave notice to the Respondent as soon as practicable after once he realized the chronic and ongoing nature of his physical injuries.
Receipt of the accident benefits package
13I find that the Applicant’s reason – that he never received the accident benefits package from the Respondent – is unreasonable. The Applicant never notified the Respondent of the accident until he submitted an OCF-1 on September 28, 2023. The Respondent cannot be held liable to provide an accident benefits package to an insured person before receiving any notice of the accident. Accordingly, I find that this is not a reasonable excuse to permit the application pursuant to section 34 of the Schedule.
The Applicant’s pre-existing condition is not a reasonable excuse
14I find that the Applicant’s pre-existing psychiatric condition, and belief that his injuries would resolve over time, is not credible or worthy of belief, thus I find that it is not a reasonable excuse.
15There is no evidence to support the Applicant’s claim that his pre-existing condition impacted his ability to notify the Respondent of the accident. The Applicant provided his medical records for review but has not directed me to any entries which indicate that his condition impaired his ability to notify the Respondent of the accident. I have reviewed the records and can conclude that there is no evidence in them to suggest the Applicant’s psychiatric condition impacted his ability to notify the Respondent of the accident. Further, the medical records indicate that the Applicant’s pre-existing psychiatric condition was managed by his family physician well enough to enable the Applicant to engage in full-time employment at the time leading up to and after the subject accident.
16The Applicant never reported any symptoms of a physical injury in the acute phase following the accident. The Applicant meets with his family physician to receive medication approximately every four weeks. Despite these regular visits, the Applicant never mentioned the accident to the family physician until nearly eight months after it occurred. This is inconsistent with his submissions that he experienced physical injuries such as stiffness in the back since the accident. In light of this, I agree with the Respondent and find that a reasonable person would not wait eight months to apply for benefits, particularly if they allege immediate physical injuries.
17Accordingly, I find that the 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
18The applicant is barred from proceeding with her application before the Tribunal.
Released: August 16, 2024
___________________________
Brian Norris
Adjudicator