Licence Appeal Tribunal File Number: 24-004447/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:
Uthayasangar Thangavelautham
Applicant
and
TravelersThe Dominion of Canada General Insurance Company of Canada
Respondent
AMENDED PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Joseph Tanimowo-Reyes, Counsel
For the Respondent:
Amanda R.M. Faulkner, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Uthayasangar Thangavelautham (the “applicant”) was involved in an accident on March 24, 2023 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 TravelersThe Dominion of Canada General Insurance Company of Canada (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 issue to be decided is:
i. Is the applicant barred from proceeding with his claim for benefits because he failed to submit the application for benefits (OCF-1) within the time prescribed of the Schedule?
3The respondent indicated in its submissions that there is a further preliminary issue with respect to the applicant’s failure to notify the respondent of his intention to apply for benefits within seven days of the accident contrary to section 32(1). Given that the only preliminary issue identified in the case conference report and order is the one listed above, I have limited my analysis to that issue only. The parties have a right to receive notice of the issues in dispute. It would be procedurally unfair to the applicant to allow the respondent to add an issue in this manner. If the respondent wanted to add a further preliminary issue or request an amendment of the case conference report and order, it should have filed a notice of motion.
RESULT
4The applicant is statute-barred from proceeding with his application for failing to submit his application for benefits within the time prescribed by the Schedule.
ANALYSIS
Law
5Section 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.
6Once 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.
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 (“Horvath”), 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.
Background
8The applicant was involved in an accident on March 24, 2023. The applicant, through his daughter, Vithursha, reported the accident to the insurer on April 25, 2023. The vehicle was repaired the respondent advised that it was going to close the claim.
9On August 29, 2023, Vithursha contacted the respondent and inquired about treatment funding.
10On August 30, 2023 the respondent left a voicemail for Vithursha, and sent an email to her with details about the process for claiming benefits. On August 31, 2023 the respondent sent a letter to the applicant, enclosing an Application for Accident Benefits form (OCF-1), as well as a detailed explanation of the benefits available, and instructions on how to proceed with a claim.
11The respondent sent a second letter to the applicant on October 20, 2023 indicating that it had not received a completed application, and was unable to determine if he was entitled to benefit. It indicates than pursuant to section 32(5) of the Schedule, the OCF-1 must be completed and returned within 30 days after it is received. The respondent requested that the form be returned by November 19, 2023 failing which the file would be closed.
12No OCF-1 was received and the file was closed on November 20, 2023.
13On December 14, 2023 in response to a completed questionnaire provided by Vithursha, the respondent advised that in order to apply for benefits, a completed OCF-1 was required. On December 28, 2023 Vithursha wrote to the adjuster inquiring about retaining a lawyer. The respondent advised by email on December 29, 2023 that a completed OCF-1 was required to pursue a claim and enclosed a copy of the form.
14On January 20, 2024, the applicant submitted an OCF-1 through his representative. The respondent acknowledged receipt of the OCF-1 and requested that the applicant provide a reasonable explanation for the delay in submitting the application.
15The applicant’s representative advised by email on February 22, 2024 as follows: “our client was dealing with personal issues and had no opportunity to deal with this matter”.
The OCF-1 was filed late
16From the evidence, it is clear that the applicant submitted the OCF-1 outside the timeline stipulated in s. 32(5) of the Schedule.
The applicant has not established a reasonable explanation for the delay
17The applicant submits that he had a reasonable explanation for the delay. The applicant submits that he has a limited understanding of English, and thus relied on Vithursha to correspond with the respondent. The applicant submits that Vithursha was experiencing her own medical issues and was unable to deal with the application due to a marital separation. The applicant therefore sought to support Vithursha first and delay his own recuperation. The applicant submits that he could not enlist the assistance of anyone else because of the desire to keep the family’s struggles private.
18I find that the applicant has not met his onus to establish that he had a reasonable explanation for the delay in submitting a completed OCF-1.
19While I find the applicant’s explanation sincere, it fails the test for reasonableness. Consistent with the fourth factor in Horvath, a reasonable explanation must be assessed on a subjective-objective standard that considers an individual’s self-reported circumstances against what a reasonable person would do if faced with those circumstances. I do not find it reasonable that the applicant was unable to enlist the assistance of his daughter or anyone else for over nine months to complete a form. Vithursha spoke to the adjuster multiple times and sent multiple emails with various information, and was repeatedly advised of the need for an OCF-1 to be submitted. The applicant was also familiar with the accident benefits process and the need for an OCF-1 following a previous motor vehicle accident in 2020.
20I appreciate that life events can contribute to a delay, however I do not accept that this continuously and reasonably prevented the applicant from submitting an OCF-1 for over nine months. While it is well-settled that the Schedule is consumer protection legislation, I find that it would not be equitable to relieve against the consequences of his continued failure to comply with the time limits. Given the passage of time, the respondent has been prejudiced having been deprived of the ability to contemporaneously investigate or assess the applicant’s injuries sustained in the accident.
21Having considered the totality of the evidence, I find that the applicant has not met his onus to establish a reasonable explanation for the delay in submitting the OCF-1 which has resulted in prejudice to the respondent. The applicant has not established hardship capable of outweighing that prejudice. He has not demonstrated that the Tribunal should relieve him from the consequences of his failure to act.
Section 55
22Pursuant 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 submitted an application for the benefit within the times prescribed in s. 32.
23As outlined above, I find that the applicant did not submit his completed OCF-1 within the timelines prescribed by the Schedule and has not provided a reasonable explanation for the delay. Accordingly, I find that the applicant is statute-barred from proceeding with his application before the Tribunal.
ORDER
24The applicant has not provided a reasonable explanation for failing to apply for accident benefits within the time limits prescribed by the Schedule. His application is barred by s. 55(1)1 of the Schedule from proceeding and it is accordingly dismissed. The Tribunal shall vacate any date that has been scheduled for the substantive issue hearing.
Released: February 19, 2025
Kate Grieves
Adjudicator