Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-013066/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:
Shelley Laufer
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Kathy Noohi, Counsel
For the Respondent:
Kylie Weber, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Shelley Laufer, the applicant, was involved in an automobile accident on October 10, 2019, 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, The Dominion of Canada General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“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 pursuant to s. 55(1)1 of the Schedule, as a result of her failure to notify the insurer of the circumstances giving rise to a claim for a benefit or to submit an application for the benefit within the times prescribed by the Schedule?
RESULT
3The applicant is statute-barred from proceeding with her application.
ANALYSIS
Parties’ positions
4The respondent submits that the applicant did not notify them of her intention to apply for accident benefits in respect of the October 10, 2019 accident, until more than two years post-accident. The applicant submitted an OCF-1 on October 14, 2021. The respondent contends that the applicant has not provided any reason for her failure to adhere to the timeline prescribed by s. 32(1) of the Schedule, despite multiple requests for an explanation. It further argues that it has been clearly prejudiced by this more than two year delay, as it has been unable to investigate the accident benefit claim, obtain surveillance or contemporaneous medical assessments.
5The applicant did not file submissions or evidence with the Tribunal. Both parties were in attendance for the case conference conducted on August 9, 2023. A preliminary issue hearing was scheduled and hearing submission deadlines were set on consent of the parties. The applicant did not request an extension of time to file her submissions, nor did she respond after being served with the respondent’s submissions.
Law
6Section 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.
7Section 34 of the Schedule states that “a person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.” The 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 more recently reiterated in K.H. vs Northbridge, 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.
Did the applicant fail to notify the respondent in accordance with the Schedule?
8On the evidence before me, I find that the applicant did not notify the respondent of her intention to apply for accident benefits within the timeframe set out in s. 32(1) of the Schedule. The subject accident occurred on October 10, 2019. However, the respondent was not notified of the applicant’s intention to apply for accident benefits until October 14, 2021, when it received the applicant’s OCF-1. By way of letters dated November 18, 2021, December 13, 2021, and February 22, 2022 the respondent requested a reasonable explanation for the notice being delayed. On October 20, 2022, the respondent notified the applicant that as she had not provided a reasonable explanation for her late notice, she was disentitled to the benefits.
9The respondent has further led evidence establishing that the applicant was aware of the process for applying for accident benefits. The applicant had been involved in a prior 2017 automobile accident for which she had retained counsel and made a claim for accident benefits. Further, two clinical notes and records entries from the applicant’s family physician indicate that the applicant had discussed with her doctor in October 2019 whether she would make a claim in respect of the subject accident. Despite these discussions, the applicant did not notify the respondent of her intention to apply for accident benefits until two years later.
10As it is clear that the applicant did not notify the respondent within the timeframe stipulated in s. 32(1) of the Schedule, the onus rests with the applicant to establish a reasonable explanation for the delay. The applicant has not provided any explanation for her delay in notifying the respondent. No submissions or evidence were filed by the applicant for this preliminary issue hearing. Further, the applicant did not provide any response to the respondent’s letters requesting a reasonable explanation for the delay.
11Without an explanation that is credible or worthy of belief, there is no need to assess the reasonableness of the explanation. In other words, the first principle is a threshold that must be met in order to engage the other principles. Without any submissions or evidence from the applicant, I find that she has not met her onus to establish a reasonable explanation for the delay in notifying the respondent.
Section 55
12Pursuant to s. 55(1)1 of the Schedule, an insured person shall not apply to the Tribunal under subsection 280(2) of the Insurance Act if the insured person has 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 in s. 32.
13As outlined above, I find that the applicant did not notify the respondent of the accident within the timelines prescribed by the Schedule and has not provided a reasonable explanation for the delay of approximately two years. Accordingly, I find that the applicant is statute-barred from proceeding with her application before the Tribunal.
CONCLUSION AND ORDER
14The applicant has not provided a reasonable explanation for failing to notify the respondent of her intention to apply for accident benefits within the timelines prescribed by the Schedule.
15Her application is barred by s. 55(1)1 of the Schedule and is accordingly dismissed. The Tribunal shall vacate any date that has been scheduled for the substantive issue hearing.
Released: January 9, 2024
Ulana Pahuta
Adjudicator