Preliminary Issue Hearing Decision and Order
Licence Appeal Tribunal File Number: 24-005190/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:
Robert Robertson
Applicant
and
CAA Insurance Company
Respondent
ADJUDICATOR:
Rachel Levitsky
APPEARANCES:
For the Applicant:
Wendy Sokoloff, Counsel Melissa Gizzo, Counsel
For the Respondent:
Derek Ballard, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Robert Robertson (the “applicant”) was involved in an incident on February 12, 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 CAA Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES IN DISPUTE
2The preliminary issues to be decided are:
i. Is the applicant barred from proceeding to a hearing as they failed to notify the respondent of the circumstances giving rise to a claim for benefits no later than the seventh day after the circumstances arose or as soon as practicable after that day?
ii. Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?
RESULT
3The applicant barred is from proceeding to a hearing as he failed to notify the respondent of the circumstances giving rise to a claim for benefits no later than the seventh day after the circumstances arose or as soon as practicable after that day, and he failed to provide a reasonable explanation for his delay. It is not necessary to determine whether he was involved in an “accident” pursuant to s. 3(1) of the Schedule. The application is dismissed.
ANALYSIS
4I find that the applicant is barred from proceeding to a hearing because he failed to notify the respondent of the circumstances giving rise to a claim for benefits no later than the seventh day after the circumstances arose or as soon as practicable after that day, and he failed to provide a reasonable explanation for his delay.
5Section 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 has not submitted an application for the benefit within the times prescribed by the Schedule.
6Section 32(1) states that 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 gave rise to the entitlement to the benefit, or as soon as practicable after that day.
7Under s. 34, a person’s failure to comply with the time limit set out above does not disentitle the person to a benefit if the person has a reasonable explanation. The guiding principles of what constitutes a “reasonable explanation” were summarized in K. H. v. Northbridge, 2019 CanLII 101613, as follows:
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 of 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.
8The applicant advised at an examination under oath on April 25, 2023, that he drove to his assigned parking spot at his townhouse complex and parked his vehicle. There was snow and ice built up right next to his car on the curb. He closed the car door, and either immediately after or a second or two later, he slipped and fell, injuring his right shoulder and lower back. He was taken by ambulance to North York General Hospital and was told to go home and rest. That night, he felt a