Citation and Parties
Licence Appeal Tribunal File Number: 24-005382/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:
Kidane M Kidane
Applicant
and
Definity Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Kameliya Stancheva, Paralegal
For the Respondent:
Tanya Walia, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Kidane M. Kidane (the “applicant”), was involved in an automobile accident on December 16, 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 Definity 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 barred from proceeding with his claim for benefits as he failed to notify the respondent of the circumstances giving rise to the claim for benefits no later than the seventh day after the circumstances arose or as soon as practicable after that day?
RESULT
3The applicant is statute-barred from proceeding with his application.
ANALYSIS
4The applicant was involved in an accident on December 16, 2022. The applicant first notified the respondent that he was involved in the accident on December 17, 2022, but according to the transcript from that call, he denied any injuries. The respondent was first notified of the applicant’s intention to seek accident benefits on June 28, 2023 when an OCF-23 was submitted on behalf of the applicant. An OCF-1 was submitted a few days later. By letter dated July 20, 2023 the respondent requested an explanation for the delay in notifying of his intention to claim accident benefits.
The Law
5Section 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.
6Section 34 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.
7Pursuant 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.
8The 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.
9The onus is on the applicant to establish that he has a reasonable explanation for the delay.
The applicant failed to comply with the timelines set out in section 32(1)
10I find that the applicant did not comply with the timelines set out in section 32(1). The applicant does not dispute that he provided late notice of his intention to claim accident benefits. In his submissions, he agrees that the accident (the circumstances giving rise to a claim for benefits) occurred on December 16, 2022. He offers no evidence that he provided notice of the claim prior to the submission of the OCF-23.
The applicant has not provided a reasonable explanation for the delay
11The applicant’s submissions provide no explanation for the delay in notifying the insurer of his intention to claim accident benefits. The applicant submits that his injuries prevented him from submitting a completed application (OCF-1) to the insurer, however, he made no submissions as to what his injuries were, or how they prevented him from notifying the insurer of his intention to claim benefits. The applicant references a disability certificate dated June 28, 2023, but does not explain how or why this document provides an explanation for the delay.
12I find that the applicant has not met his burden to establish a reasonable explanation for the delay in notifying the insurer of his intention to claim accident benefits.