Padua v. Co-operators General Insurance Company, 2025 CanLII 20841

Licence Appeal Tribunal File Number: 23-007056/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:

Eilane Padua

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Manisa Kafai, Counsel

For the Respondent: Emily Schatzker, Counsel

HEARD: By way of written submissions

OVERVIEW

1Eilane Padua, the applicant, was involved in an automobile accident on December 17, 2021, 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, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2At the case conference held on January 9, 2024, the Tribunal ordered the preliminary issue to be heard together with the substantive issues.

ISSUES

3The preliminary issue in dispute is:

i. Is the applicant barred from proceeding with her claim for benefits as she failed to submit the application for benefits (OCF-1) within the time prescribed by the Schedule?

4The substantive issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from January 4, 2022, and ongoing?

iii. Is the applicant entitled to $3,574.50 for physiotherapy, proposed by Downsview Healthcare Inc. in a treatment plan dated September 16, 2022?

iv. Is the applicant entitled to $2,200.00 for physiotherapy, proposed by Downsview Healthcare Inc. in a treatment plan dated January 6, 2023?

v. Is the applicant entitled to $1,100.00 for shockwave therapy, proposed by Downsview Healthcare Inc. in a treatment plan dated November 28, 2022?

vi. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a treatment plan dated June 1, 2023?

vii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5The applicant has not provided a reasonable explanation for failing to submit a completed and signed application for benefits within 30 days after receiving the application forms, pursuant to s. 32(5) of the Schedule. Her application for the substantive issues in dispute is barred by s. 55(1) and is accordingly dismissed.

ANALYSIS

6I find that the applicant is statute-barred from proceeding with her application before the Tribunal as she did not provide a reasonable explanation for the delay in submitting the OCF-1.

7Section 55(1) of the Schedule states that an insured person shall not apply to the Tribunal if they have not submitted an application for a benefit within the times prescribed by the Schedule. Section 32(5) of the Schedule states that the applicant shall submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms. Section 34 states that a person’s failure to comply with that time limit does not disentitle them to a benefit if they have a reasonable explanation.

8The 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. vs Northbridge, 2019 CanLII 101613 (“K.H.”). The guiding principles are summarized 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.

9The respondent provided the applicant with an application package in an email on January 10, 2022. The email indicates that the attached forms would allow her to submit a claim for accident benefits. The applicant responded to the email 18 minutes later thanking the respondent. The respondent and applicant subsequently sent a number of emails back and forth that same day.

10On January 17, 2022, the respondent emailed the applicant asking if she had spoken with or set up an appointment with a treatment clinic, and whether she had begun filling out the OCF-1.

11On February 23, 2022, the respondent wrote a letter to the applicant advising that it had been over 30 days from when she received the application for accident benefits and the OCF-1 had not been received, and therefore her claim would be closed.

12The applicant submitted an OCF-1 on November 9, 2022, 10 months after receiving the application package. She submits that her son became severely ill following the accident, which necessitated her taking a leave from work from April 2022 to May 2023 to provide him with essential care. She also submits that her boyfriend’s mother and two siblings passed away, requiring her to attend their funerals in August 2022 in the Philippines. She argues that the delay in submitting the OCF-1 was attributable to her son’s critical health condition, and dealing with multiple family bereavements and the associated travel demands.

13The applicant has not explained why her son’s health condition posed a barrier to submitting the OCF-1. During an examination under oath (“EUO”) on May 24, 2023, the applicant explained that she went on leave from work in April 2022, but did not provide any details regarding the tasks that were involved with caring for her son, how this would have impacted her ability to submit the OCF-1, or why she was only able to do so in November of 2022. Further, she did not explain why she did not submit the OCF-1 prior to going on leave, despite it being in her possession since January.

14The funerals and trip to the Philippines did not take place until August 2022, approximately 7 months after she received the application package. I am not convinced that this trip was responsible for the ten-month delay given that it was only two weeks long. Additionally, the applicant did not provide an explanation as to why, after her return home, she waited until November to submit the OCF-1.

15I find that the applicant has failed to prove that her explanation for the delay is reasonable. She has not made any argument or demonstrated that the Tribunal should relieve against the consequences of her failure to act. As such, I find that she is barred from proceeding with her application to the Tribunal pursuant to s. 55(1) of the Schedule.

ORDER

16The applicant has not provided a reasonable explanation for failing to submit a completed and signed application for benefits within 30 days after receiving the application forms, pursuant to s. 32(5) of the Schedule. Her application for the substantive issues in dispute is barred by s. 55(1) and is accordingly dismissed.

Released: March 10, 2025

__________________________

Rachel Levitsky

Adjudicator