Thamayanthi T Mathichandr v. The Dominion of Canada General Insurance Company, 2024 CanLII 99650

Citation: Mathichandr v. The Dominion of Canada General Insurance Company, 2024 ONLAT 23-015718/AABS-PI

Licence Appeal Tribunal File Number: 23-015718/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:

Thamayanthi T Mathichandr

Applicant

and

The Dominion of Canada General Insurace Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Kim Mohammed Sieudhan, Paralegal

For the Respondent:

Leanne Kenning, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Thamayanthi Mathichandr (“the applicant”), was involved in an automobile accident on June 10, 2022, 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 Dominion of Canada General 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

2The preliminary issue to be decided is:

i. Is the applicant is barred from proceeding with this application under s. 55(1)(1) of the Schedule for not notifying the respondent of the circumstances giving rise to the claim for a benefit within the time prescribed in s. 32(1) of the Schedule?

RESULT

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

ANALYSIS

Parties’ Positions

4The respondent submits that the applicant failed to give notice of her intention to apply for benefits and submit a completed and signed application for benefits within the time limits as set out in s. 32 of the Schedule. The respondent also submits that the applicant failed to provide a reasonable explanation for the delay in notifying the respondent pursuant to s. 34. The respondent seeks an order barring the applicant’s application to the Tribunal pursuant to paragraph 1 of s. 55(1).

5The applicant submits that the respondent was notified of the accident and the applicant’s intention to apply for benefits as soon as it was practicable to do so. The applicant further submits that the respondent failed to comply with its obligation under s. 32(2) of the Schedule to provide, notify, or advise the applicant of available benefits. In the alternative, the applicant submits that she provided a reasonable explanation for the delay.

The Law

6Pursuant to s. 32 of the Schedule, a person who intends to apply for 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. Section 32(2) states that the insurer is then responsible for promptly providing the person with the appropriate application forms, a written explanation of the benefits available, information to assist the person in applying for benefits, and information on the election relating to income replacement, non-earner, and caregiver benefits, if applicable.

7According to s. 34, a person’s failure to comply with the time limit above does not disentitle them to a benefit if they have a reasonable explanation.

8Section 55(1) of the Schedule states that an insured person 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 have not submitted an application for the benefit within the time prescribed by the Schedule.

Did the applicant adhere to the timeline set out in s. 32?

9I find that the applicant has failed to establish, on a balance of probabilities, that she notified the respondent of her intention to apply for accident benefits within seven days after the circumstances arose that gave rise to her entitlement to accident benefits, or as soon as practicable after that day.

10The applicant was involved in an accident in which she was a passenger on June 10, 2022. She attended a collision reporting centre with her husband, the driver and policy holder, later that day. On July 25, 2022, the applicant’s husband had a phone call with an adjuster, and he reported that no one sustained injuries in the accident. There is no evidence before me of communication with the respondent after that date until December 14, 2022, when the applicant submitted a completed OCF-1 form.

11The applicant argues that she provided the respondent with her intention to apply for benefits as soon as it was practicable. She submits that a copy of the self-reporting collision report was provided to the respondent either on June 18, 2022, or July 12, 2022. The report indicates that neither the applicant nor her husband was injured in the accident. I find that the provision of this report alone does not signal an intention to claim accident benefits, especially as it indicates that no one was injured.

12There is a log note in the respondent’s file from a phone call between the applicant’s husband and an adjuster on July 25, 2022. The log note states: “insured said he cannot put the claim in as his rates will go up”. The applicant’s husband and the adjuster disagreed on who was at fault in the accident, and he described the damage to the vehicles. He advised the adjuster that there were no injuries. There is nothing in the log notes regarding benefits under the Schedule. It appears that the topic of the phone call was primarily about fault and property damage. I accordingly am not persuaded that the applicant or her husband expressed an intention to apply for benefits during the call on July 25, 2022.

13The applicant submits that her husband’s first language is Tamil, and that his conversation with the adjuster was conducted in English. The applicant’s husband swore an affidavit on May 23, 2024, which states that he answered the adjuster’s questions based on his very limited ability to understand and speak English.

14Although I appreciate that the applicant’s husband may have difficulty to understand and speak English, there is a lack of evidence as to the extent of this difficulty, or what part of the conversation with the adjuster he had difficulty understanding. There is no evidence before me that the applicant advised the adjuster of a language barrier, or that he requested a Tamil interpreter for the phone call. Based on the contents of the log note, it appears that without an interpreter the applicant was able to describe the accident and damage to the vehicles, and that no one was injured in the accident. A similar description of the accident and a lack of injuries were also noted on the self-reporting collision report. He was also able to engage in a conversation with the adjuster about fault. The log note specifically states: “Insured understood”. On a balance of probabilities, I find it more likely that the applicant’s husband accurately communicated his belief that no one was injured in the accident during the phone call with the adjuster, and any language barrier did not have an impact on his communication of that piece of information.

15I find that the applicant first notified the respondent of her intention to apply for benefits on December 14, 2022, when she provided it with the OCF-1. This was past the seven-day deadline set out in s. 32. Further, I find that there is no compelling evidence that it was not practicable to notify the insurer until December 14, 2022; the applicant had an opportunity to speak with the adjuster on July 25, 2022, and had the ability to notify the insurer then. I note that the question of whether it was practicable to do so is separate from whether the applicant had a reasonable explanation for not doing so. I will address the latter below.

Did the respondent breach its obligation under s. 32(2)?

16As I found that it was reasonable for the adjuster to have assumed no one intended to apply for benefits under the Schedule until the OCF-1 form was received, I find that the respondent did not have an obligation under s. 32(2) after the phone call of July 25, 2022, to provide the applicant with forms, information, or an explanation of the process of applying for benefits.

Did the applicant provide a reasonable explanation for the delay?

17I find on a balance of probabilities that the applicant’s explanation for the delayed initiation of her claim is reasonable.

18In describing what comprises a “reasonable explanation”, both parties rely on K.H. v. Northbridge General Insurance Company, 2019 CanLII 101613 (ON LAT), which more recently reiterated the following principles set out in Horvath v. Allstate Insurance Company of Canada, 2003 ONFSCDRS 92:

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

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

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

iv. The test for “reasonable explanation” is both a subjective and objective test that should take account both personal characteristics and a “reasonable person” standard.

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

vi. 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.

19After receiving the OCF-1, the respondent requested an explanation for the delay. On March 3, 2023, the applicant advised the following: “[she] was informed and believed that her spouse’s auto insurance policy would be affected if she were to claim for accident benefits through his insurance policy.”

20I find that the applicant’s explanation is credible and worthy of belief. The applicant’s husband raised the issue of his rates going up in his conversation with the adjuster on July 25, 2022. There is no indication within the log note that this concern was addressed by the adjuster. I accept that this was something that they were concerned might happen if they made a claim.

21I do not agree with the respondent that the applicant’s assumption that making a claim would affect her husband’s policy is the same as being ignorant of the law. Whether the policy would be affected or whether her husband’s rate would go up is not a legal question. It is a question with respect to how insurers operate their businesses.

22The respondent submits that the delay has deprived it of the opportunity to conduct assessments for the purpose of determining entitlement to benefits. While I agree that there is some prejudice to the respondent, I find that it does not outweigh the prejudice to the applicant if she faced a complete bar to accident benefits. Although I am not determining whether the applicant is substantively entitled to benefits, there is evidence before me that the applicant sought and began receiving treatment after the accident. I find that not being able to access benefits to support her recovery from any injuries she sustained would have a greater impact on her than on the respondent if it is forced to accept a claim that was delayed by approximately 6 months.

ORDER

23The applicant may proceed with her claim for benefits because she provided a reasonable explanation for her delayed submission of an OCF-1.

Released: October 15, 2024

___________________________

Rachel Levitsky

Adjudicator