Moffatt v. Aviva General Insurance, 2025 CanLII 25845

Citation: Moffatt v. Aviva General Insurance, 2025 ONLAT 23-014149/AABS

Licence Appeal Tribunal File Number: 23-014149/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:

Jason P. Moffatt

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATORS:

Ludmilla Jarda Melissa Shea¹

APPEARANCES:

For the Applicant:

Jennifer Hoffman, Counsel Angela Broccolini, Counsel

For the Respondent:

Tamara Tomomitsu, Counsel Raymond Ashurov, Counsel

Court Reporter:

Jordan Francis-Cleary

HEARD by Videoconference:

December 2, 3, and 4, 2024

OVERVIEW

1Jason Moffatt (the “applicant”) was involved in an incident on August 1, 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 Aviva General Insurance (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The respondent raised the following preliminary issues:

1. Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?
2. Is the applicant barred 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?

ISSUE

3The issue in dispute is whether the applicant is entitled to $2,200.00 for an orthopaedic assessment, proposed by Dr. Karabatsos in a treatment plan/OCF-18 (“treatment plan”) submitted October 30, 2023 and denied November 14, 2023.

4At the start of the videoconference hearing, the applicant withdrew substantive issues 1-3, 5, and 6 as listed in the Case Conference Report and Order (“CCRO”) released on May 17, 2024. These issues included a catastrophic impairment determination, various treatment plans, an award, and interest. The balance of the issues remains in dispute.

RESULT

5For the reasons that follow, I find that:

1. The applicant has demonstrated that the incident that occurred on August 1, 2022, constitutes an “accident”, as defined in section 3(1) of the Schedule.
2. The applicant has established that he had a reasonable explanation for the late submission of his Application for Accident Benefits (OCF-1). As a result, he is not statute-barred from proceeding with his claim for accident benefits.
3. The applicant is entitled to $2,200.00 for an orthopaedic assessment.

6The application is granted.

PROCEDURAL ISSUE

The applicant’s request to rely on an orthopaedic assessment catastrophic determination addendum report dated October 22, 2024

7The applicant’s request to rely on the orthopaedic assessment catastrophic determination addendum report dated October 22, 2024 completed by Dr. Charalabos Bob Karabatsos, orthopaedic surgeon, is granted.

8While the applicant acknowledges that he delivered Dr. Karabatsos’ report on October 22, 2024, after the production deadline set out in the CCRO, he seeks the Tribunal’s permission to rely on his late filed report pursuant to Rule 9.3 of the Licence Appeal Tribunal Rules, 2023 (“Rules”).

9The applicant states that a couple weeks before the final production deadline, the respondent delivered seven insurer examination reports, five of which the applicant had not previously been informed of their existence. The respondent also delivered video footage of the incident from the York Regional Police. A review of the insurer examination reports revealed that the respondent’s assessors reviewed and commented on the video footage. The applicant submits that Dr. Karabatsos’ addendum report is a rebuttal of the opinions set out in the new insurer examination reports, including the opinion of Dr. Ato Sekyi-Otu, orthopaedic surgeon. The applicant argues that while there is no prejudice to the respondent if the report were to be excluded, there is significant prejudice to the applicant as the report is the applicant’s primary evidence commenting on the issue of causation and commenting on the video footage that had not previously been disclosed to the applicant.

10In response, the respondent submits that Dr. Karabatsos’ report should be excluded pursuant to Rule 9.4 as it was served after the production deadline. The respondent states that the applicant agreed to the production exchange deadline, and that it would be procedurally unfair under Rule 3.1(a) to allow the applicant to rely on the late served report. The respondent further states that the applicant could have obtained the video footage at an earlier date by way of a freedom of information request, and he did not do so.

11Pursuant to the CCRO, the parties were required to exchange any additional documents or things responsive to documents or things that had already been exchanged or produced that they intended to rely on as evidence at the hearing by no later than 100 calendar days after the case conference, i.e. by August 18, 2024. Given that the applicant did not deliver Dr. Karabatsos’ addendum report until October 22, 2024, I find that the applicant did not comply with the disclosure deadline.

12Rule 9.3 provides that if a party fails to comply with an order with respect to disclosure, exchange, production, or inspection of documents or things, that party may not rely on the document or thing as evidence without the permission of the Tribunal. When making its determination, the Tribunal may consider any relevant factor, including: (a) the reasons for non-compliance; (b) whether a party will be prejudiced by the admission or exclusion of the evidence and the extent to which that prejudice can be mitigated by any other order; (c) the extent to which the substance of the information or testimony lies within the knowledge of the other party; (d) whether the other party opposes the admission of the evidence or testimony; and (e) the relevance of the document, thing, or testimony to an issue in dispute in the proceeding.

13For the reasons that follow, I grant the applicant’s request to rely on Dr. Karabatsos’ addendum report. I find the reasons for the applicant’s non-compliance reasonable in the circumstances. Further, the prejudice to the applicant would be significant if the addendum report was excluded as the applicant would have no expert evidence commenting on the video footage and causation, and there would be minimal prejudice to the respondent as its expert had the opportunity to comment on the video footage in their reports. I also find that the addendum report is relevant to the issues in dispute, and the threshold for relevance is low.

The applicant’s request to exclude an initial officer report dated August 1, 2022

14The applicant’s request to exclude the initial officer report dated August 1, 2022 completed by the York Regional Police is denied.

15The applicant submits that the initial officer report has no probative value, and that its content is prejudicial to the applicant. He submits that the report contains hearsay evidence from a third party who will not testify at this hearing, and that the information in the report is factually incorrect. The applicant states that it is unclear who provided information to the police officer who prepared the report as the report has been redacted. The applicant argues that the report is not relevant to the issues in dispute as it does not speak to any potential injury that may have been sustained while the applicant was in the police vehicle. Finally, the applicant argues that the report is prejudicial to the applicant as it depicts him like a criminal when ultimately, all charges related to the incident were withdrawn.

16In response, the respondent submits that the initial officer report should be included in the evidentiary record pursuant to Rule 9.3(e) and s. 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (“SPPA”) because it is relevant. The respondent states that the report speaks to the applicant’s credibility, which is at issue, and therefore it has probative value. The respondent also argues that in the circumstances, the probative value of the report outweighs any prejudicial effect. Finally, the respondent states that the report is being provided for the fact that the information in the report was provided, not for the truth of its content.

17I deny the applicant’s request to exclude the initial officer report. I find that the report is relevant to the issues in dispute, and the threshold for relevance is low. Further, the report is admissible pursuant to s. 15(1) of the SPPA.

ANALYSIS

Background

18On December 13, 2021, the applicant sustained a fracture to his right fibula after he fell down some stairs at home. As a result, he underwent an open reduction internal fixation surgery to his right leg with Dr. Christopher Lindsay, orthopaedic surgeon.

19On March 3, 2022, the applicant underwent irrigation and debridement to his right leg due to an infection of the surgical wound. Cultures from operative procedures were obtained and revealed growth of staphylococcus aureus and group B streptococcus. He was subsequently placed on a six-week course of intravenous antibiotics by Dr. Michael Lingley, an infectious disease specialist. His last dose was in May 2022. The applicant also quit smoking around that time on the advice of his treating physicians.

20Prior to August 2022, the applicant had progressed to walking with a cane outdoors, and he used a walker indoors. He testified that he did not have any concerns about his leg, and no further consultations were scheduled after his July 8, 2022 consultation with Dr. Lindsay.

21On August 1, 2022, the applicant was involved in the subject incident. The applicant called the police following a domestic disturbance with his landlady with whom he resided. When the police officers arrived at the scene, they handcuffed the applicant with his hands behind his back, walked him down the driveway without the assistance of his cane, and placed him in the back seat of the police vehicle.

22Due to the barrier installed in the back of the police vehicle, which separates the front seat area from the back seat area, the foot and leg room in the back seat area was reduced. The applicant attempted to hold himself up with his fingertips and his left leg as he was unable to bend his right leg and sit down in the back of the police vehicle. The applicant had difficulty sitting down in an upright position and bending his legs in a 90-degree angle. Based on his testimony and a review of the video footage of the back seat of the police vehicle, when the applicant finally attempted to sit down fully, and to bend both his legs in a seated position, he experienced unbearable pain in his right leg. The applicant screamed out in agony. He then laid down in the back seat of the police vehicle and was transported to the police station.

23When the applicant arrived at the police station, the applicant was unable to exit the police vehicle unassisted. Police officers slid him out of the police vehicle, and they assisted him with walking by holding on to his arms as he was unable to bear any weight to his right leg. The applicant was subsequently taken to the hospital via ambulance where he was diagnosed with a musculoskeletal injury to his right leg.

24On August 11, 2022, the applicant underwent further surgery with Dr. Lindsay. The surgical procedures included: (1) removal of hardware, right tibia; (2) take down of non-union with intraoperative cultures; (3) revision fixation using a locked intra medullary tibial nail; and (4) autogenous bone graft to non-union site. Following this surgery, the applicant experienced further infection in January 2023, and he required further surgical intervention in February 2023. Further complications occurred and on May 1, 2023, the applicant received an amputation of the right leg, below the knee. On June 5, 2023, the applicant received a revision of his below the right knee amputation due to ongoing infection.

Was the applicant involved in an “accident”?

25For the following reasons, I find that the applicant was involved in an “accident” as defined by s. 3(1) of the Schedule.

26To be eligible for benefits, the applicant must prove on a balance of probabilities that the incident that occurred on August 1, 2021, meets the definition of an accident under the Schedule. Section 3(1) defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment.”

27The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused his injuries.

28In Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226, the Court of Appeal for Ontario confirmed the two-part test to determine whether an incident is an “accident” as follows:

1. Purpose test: did the incident arise out of the use or operation of an automobile?
2. Causation test: did the use or operation of an automobile directly cause the impairment?

29The purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put.” See: Greenhalgh v. ING Halifax Insurance Company, 2004 CanLII 21045 (ONCA). Put another way, for what “purpose” was the vehicle being used at the time of the incident?

30The causation test then requires the adjudicator to determine if these “ordinary and well-known activities” were the direct cause of the applicant’s impairments by focusing on the following considerations:

1. The “but for” consideration can act as a useful screen to eliminate irrelevant causes;
2. The "intervening act” consideration may be used to determine if some other event took place that cannot be said to be part of the ordinary course of use or operation of the vehicle; and
3. Finally, when faced with a number of possible causes, the “dominant feature” consideration focuses on whether the ordinary and well-known activity is what “most directly caused the injury.”

The Purpose Test

31The applicant submits that he satisfies the purpose test. The applicant was placed in the back seat of a police vehicle while being detained by the police. The applicant submits that the use of a vehicle as a police vehicle and the act of sitting down in the back seat of a police vehicle are ordinary and well-known uses of a vehicle.

32The respondent submits that the purpose test has not been satisfied. While the respondent does not dispute that the applicant entered the back seat of the police vehicle, it argues that the purpose test cannot be met if the applicant’s injury occurred prior to entering the police vehicle. The respondent states that the applicant’s injury occurred prior to the August 1, 2022 incident. It also questions the applicant’s credibility because the applicant recounted various versions of the incident to his physicians.

33I find that the applicant satisfies the purpose test because being a seated passenger in the back of a police vehicle while in police custody is an ordinary and well-known use of a vehicle (see: Gebe v. Northbridge General Insurance Company, 2024 CanLII 51707 (ON LAT) and Norris v. Aviva General Insurance, 2021 CanLII 35584 (ON LAT).

The Causation Test

The “but for” consideration

34The applicant submits that the use or operation of the police vehicle is the cause of his right leg injury and that “but for” being placed in the back seat of the police vehicle, he would not have been injured.

35The applicant acknowledges that he sustained a fracture to his right tibia requiring an open reduction internal fixation surgery in December 2021, that his wound became infected and required an irrigation and debridement procedure in March 2022 and intravenous antibiotics, and that he quit smoking in April 2022 after being advised to do so by Dr. Lindsay. However, the applicant denies that his fracture had not healed, and that his hardware was infected. The applicant notes that blood was drawn in May 2022 after his peripherally inserted central catheter (“PICC”) line was removed, and no infection was present. Also, Dr. Lindsay noted on July 8, 2022 that the scab was improving mid-incision, and the applicant testified that Dr. Lindsay told him at that time that he was “doing good.” Further, there was no mention of any concerns about the hardware being displaced, moved, or infected, and the applicant was told that he did not need to return for a follow up appointment.

36The applicant testified that on the day of the incident, August 1, 2022, his right leg had sufficiently healed to mow the lawn and to walk with a cane. He was able to walk down the driveway towards the police vehicle without the assistance of a cane. Further, the video footage shows the applicant weight-bearing on both legs, standing outside the police vehicle without assistance, his hands handcuffed behind his back, and entering the police vehicle at the insistence of the police officer.

37Once in the police vehicle, as seen in the video footage, the applicant was unable to fully sit down in the back seat of the police vehicle. When the applicant attempts to sit down fully and to bend his legs, you can hear him say “my leg, my leg” with facial grimacing and calling out in agony for assistance from the police officer. The applicant then re-positions himself horizontally on the back seat, and the officer closes the rear passenger door, touching the applicant’s feet.

38Upon arriving at the police station, as seen in the video footage, the applicant required the assistance of police officers to get out of the police vehicle. He was observed to be unable to bear weight on his right leg, and he could not walk without assistance. After being processed at the police station, the applicant was transported to the hospital by ambulance.

39The applicant submits that as a result of the incident, he sustained a refracture of his right leg, and following further infection, he received an amputation of the right leg, below the knee. He relies on an orthopaedic surgery assessment report dated April 1, 2024 and an addendum report dated October 22, 2024, both completed by Dr. Karabatsos.

40While the applicant acknowledges that he was at times confused regarding dates and specific events, he submits that his credibility remains intact. He states that the events occurred over the past three years, he has a Grade 8 education, and he struggles to articulate his thoughts. He also argues that the injuries he sustained are not subjective, and that the medical complications related to his right leg fracture and subsequent amputation are well documented prior to and following the incident.

41In response, the respondent submits that the applicant’s amputation of the right leg, below the knee, would have occurred regardless of the applicant’s presence in the police vehicle. First, the respondent argues that the applicant sustained an injury prior to entering the police vehicle. Specifically, it suggests that the applicant injured himself as he was walking down the driveway, towards the police vehicle, and it notes that there is no audio from the video footage before the applicant enters the police vehicle.

42Second, the respondent argues that the applicant had an infected non-union and tibial fracture and an infection of the surgical site prior to the August 1, 2022 incident, and that the applicant’s smoking was a risk factor for a subsequent amputation due to the pre-exiting bone and soft tissue risk for the non-union. While the respondent acknowledges that diagnostic imaging revealed a shift of position of 2-3 mm between April 22, 2022 and August 1, 2022, it denies that the applicant sustained a refracture of his right leg, and it argues that it is unlikely that this shift is due to the applicant’s interaction with the police on August 1, 2022. The respondent submits that this is a minor change, consistent with the effect of non-union. The respondent relies on the opinions of Dr. C. Bruce Paitich and Dr. Ato Sekyi-Otu, both orthopaedic surgeons.

43Third, the respondent denies that the incident with the police officer contributed to the applicant’s need for further surgery. It claims that the applicant misrepresented the events of August 1, 2022 and that his credibility is in question. For example, the applicant reported to a nurse that he was forcibly removed and dragged out of his home and thrown into the police vehicle when he was injured.

44Based on the facts and evidence before me, I find that the applicant would not have sustained injuries “but for” his use of the police vehicle. But for the fact that he was a passenger in the back seat of a police vehicle being transported to the police station, he would not have sustained injuries. Based on the applicant’s testimony and the video footage, there is a clear difference between the applicant’s ability to bear weight on his right leg and to walk prior to being placed in the back seat of the police vehicle and after he exited the vehicle at the police station. Further, while the parties dispute the severity of the applicant’s injuries, at the very least, based on the emergency room record dated August 1, 2022, the applicant sustained a musculoskeletal injury to his right lower leg while in the police vehicle, and based on Dr. Sekyi-Otu’s report dated July 16, 2024, the applicant sustained a contusion or strain of the right leg as a result of the incident.

45However, the “but for” test does not conclusively establish legal causation, the cause that attracts legal liability. As Laskin J.A. noted in Chisholm Liberty Mutual Group, 2002 CanLII 45020 (ONCA), the purpose of the “but for” test of causation is an exclusionary test which serves to “eliminate from consideration factually irrelevant causes. It screens out factors that made no difference to the outcome […] the but for test does not conclusively establish legal causation.”

46Since the “but for” test does not conclusively establish legal causation, the analysis turns to a consideration of whether there was an intervening act that severs the chain.

The “intervening act” consideration

47The parties agree that there is no intervening act in the present case. As there is no dispute between the parties, I find that the intervening act consideration does not apply.

The “dominant feature” consideration

48The applicant submits that the injury he sustained in the police vehicle on August 1, 2022 was the dominant feature of the incident and the resulting injuries. The applicant testified that he experienced excruciating pain when he attempted to fully sit down in the back seat of the police vehicle and when the police officer slammed the door on his right foot, all of which is evidenced in the video footage. The applicant states that after being processed at the police station, he was transported by ambulance to the hospital. Although the diagnostic imaging interpretation of the August 1, 2022 x-ray of his right leg did not identify a refracture injury, upon comparing diagnostic images from April 2022 and from August 1, 2022, Dr. Karabatsos observed evidence of a refracture of the right leg. As such, the applicant argues that the dominant feature is that the August 1, 2022 incident directly caused the applicant’s injuries to his right leg.

49The respondent submits that the applicant’s right leg injury would have led to amputation regardless of the incident. Dr. Paitich noted that the applicant had an infected non-union tibial fracture and infection, and Dr. Sekyi-Otu noted that the applicant’s ongoing smoking was a risk factor prior to the August 1, 2022 incident. The respondent also states that the infection of the bone and soft tissue are a risk for non-union.

50I find that the dominant feature of the August 1, 2022 incident was the use or operation of the police vehicle. The evidence supports a finding that the applicant’s right leg injury was healing, although slowly, prior to August 1, 2022, and the applicant did not have any follow up appointment with his treating orthopaedic surgeon. However, following the applicant’s interaction with police officers and the use or operation of the police vehicle, the applicant departed the police station by ambulance, and he underwent surgery shortly thereafter, a surgery that was not scheduled prior to the August 1, 2022 interaction with police officers.

51Given the circumstances I have described, to conclude that the dominant feature of the applicant’s alleged impairment was his pre-existing right knee injury would minimize the role played by the use or operation of the police vehicle in the resulting injury. Based on the applicant’s testimony and the video footage, the applicant was unable to fully sit down in the back seat of the police vehicle given the limited space available for his feet and legs and his limited ability to bend his right leg in the circumstances. Further, there is a clear distinction between the applicant’s ability to walk and bear weight on his right leg prior to entering the police vehicle and after he exited the police vehicle. The use or operation of the police vehicle is sufficiently proximate to the resulting impairment to the applicant’s right knee to be considered a direct cause of that impairment.

52Nothing in this decision precludes the respondent from raising, at a hearing on the substantive issues, a defence based on the contribution of the applicant’s pre-existing condition to his accident-related injuries or impairments.

Application of Accident Benefits (OCF-1)

53There is no dispute that the applicant did not notify the respondent of his intention to apply for accident benefits within seven days after the circumstances arose that give rise to his entitlement to accident benefits as stipulated at s. 32(1) of the Schedule. However, I find that the applicant has established that he has a reasonable explanation for the delay pursuant to s. 34 of the Schedule.

54Section 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 of the benefit, or as soon as practical after that day.

55Section 34 of the Schedule states that “a person’s failure to comply with the 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.

56The interpretation of “reasonable explanation” is guided by Horvath v. Allstate Insurance Company of Canada, 2003 ONFSCDRS 92 and was more recently reiterated in K.H. v. Northbridge General Insurance Company, 2019 CanLII 10613 (ON LAT). The guiding principles are summarized as follows:

1. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.
2. The onus is on the insured person to establish a “reasonable explanation.”
3. Ignorance of the law alone is not a “reasonable explanation.”
4. 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.
5. The lack of prejudice to the insurer does not make an explanation automatically reasonable.
6. 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.

Parties’ Positions

57The applicant acknowledges that he did not notify the respondent of his intention to apply for accident benefits within seven days following the accident, and that he did not deliver his OCF-1 until June 13, 2023. However, the applicant submits that he has a reasonable explanation for the delay pursuant to s. 34 of the Schedule.

58The applicant states that his explanation for the delay is credible and worthy of belief. He states that the delay was partially due to his injuries following the accident. Although he retained counsel in November 2022, he was concurrently undergoing various surgical procedures, leading to the amputation of his right leg, below the knee, and experiencing psychological trauma. As he was dealing with his injuries, he was often unable to communicate with his counsel.

59Further, while ignorance of the law alone is not a sufficient reason, the applicant submits that he has a Grade 8 education, he does not hold a driver’s licence or automobile insurance, he had not previously been involved in an accident, and he had not previously applied for accident benefits. As such, he was unaware of the relevant laws and processes.

60Moreover, the applicant argues that the subject accident is not a conventional accident. It was not reported at a collision centre, and there was no information readily available regarding the accident. Also, considering that the respondent did not believe that an accident occurred, reasonably, the applicant was not in a position to determine whether an accident had occurred without conducting a significant investigation of the information relating to the circumstances of the accident.

61Finally, the applicant submits that, in the circumstances, prejudice to the respondent is not a sufficient reason to bar him from pursuing his claim for accident benefits given the significant hardship he would suffer.

62In response, the respondent submits that the applicant does not have a reasonable explanation for the ten-and-a-half-month delay in giving notice of his intention to apply for accident benefits. The respondent submits that the applicant’s explanation is not credible or worthy of belief. It states that the applicant provided multiple explanations for the delay. First, the applicant indicated on June 13, 2023 that the delay was due to his accident-related medical complications. Second, the applicant reported at his examination under oath (“EUO”) on October 30, 2023 that it took time for him to retain counsel. Third, the applicant claimed at the EUO that it took time for him to find out the details of what happened. Fourth, the applicant indicated in his closing submissions that the complexity of the issues required further investigation.

63The respondent argues that the applicant’s explanation is not reasonable as the applicant was able to retain counsel in November 2022, approximately seven months before the respondent was placed on notice. The respondent states that no details were provided regarding any investigation that was conducted and argues that counsel is meant to be knowledgeable of the law and the process to assist the applicant in pursuing his claim. The respondent also notes that the applicant retained counsel because he believed he had been wronged by the police.

64Finally, the respondent submits that it has been prejudiced by the late notice as it did not have the opportunity to assess the applicant following the accident and prior to the amputation of his right leg, below the knee.

Section 32 Notice

65I find that the evidence supports a finding that the applicant did not notify the respondent of his intention to apply for accident benefits within seven days after the circumstances arose that give rise to his entitlement to accident benefits as required by s. 32(1) of the Schedule. Despite the time limit, the applicant did not notify the respondent of his intention to apply for accident benefits until June 13, 2023 when he submitted his OCF-1, resulting in a 316-day delay.

Section 34 Reasonable Explanation

66I find that the applicant has provided a reasonable explanation for the delay in complying with the timeline set out in s. 32(1) of the Schedule pursuant to s. 34 of the Schedule.

67The applicant’s explanation is credible and worthy of belief. The evidence supports a finding that the applicant experienced complications following the accident, and that he required multiple surgical interventions which resulted in the amputation of his right leg, below the knee. Further, I find it credible and worthy of belief that an unsophisticated party might not realize that one can apply for accident benefits in the circumstances of this case especially considering the dispute between the parties regarding whether an accident had occurred.

68While I agree that ignorance of the law alone is not a reasonable explanation, the test of “reasonable explanation” is both a subjective and objective test that should take into account both the personal characteristics and the “reasonable person” standard. In the present case, the applicant is an unsophisticated party. He has a limited level of education; he has a Grade 8 education. He does not have a driver’s licence and automobile insurance, and he had not previously been involved in an accident and claimed accident benefits. Given the applicant’s personal characteristics, I am persuaded that he would not have known that he was entitled to benefits after being a passenger in the police vehicle in the circumstances.

69I do agree that the respondent has been prejudiced by the delay because it was not aware of the applicant’s intention to seek accident benefits and could not assess him. The delay has prevented the respondent from obtaining contemporaneous medical examination and records following the accident and prior to the amputation of the applicant’s right leg, below the knee. However, I also note that the applicant will face significant hardship if he is prevented from proceeding with his application for accident benefits, including pursuing a claim for a determination of a catastrophic impairment under Criterion 2.

70Without addressing the merits of the case, it appears that the applicant has sustained significant injuries. In my view, the hardship to the applicant if he is prevented from proceeding to a substantive issue hearing for his claim for a catastrophic impairment determination, various treatment plans, an award, and interest would be far greater than any prejudice faced by the respondent. On a balance, I find it would be equitable to relieve against the consequences of the applicant’s non-compliance with s. 32(1) of the Schedule because he has provided a reasonable explanation for the delay under s. 34 of the Schedule. I find that the applicant has met his onus and may proceed with his application for accident benefits.

The applicant is entitled to $2,200.00 for an orthopaedic assessment

71I find that the applicant has demonstrated, on a balance of probabilities, that an orthopaedic assessment is reasonable and necessary.

72To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of the treatment plan, how the goals would be met to a reasonable degree, and the overall costs of achieving them are reasonable.

73The treatment plan submitted on October 30, 2023 is in the amount of $4,746.00. It proposes an orthopaedic assessment in the amount of $2,000.00, a catastrophic impairment rating assessment in the amount of $2,000.00, the completion of the treatment plan in the amount of $200.00, and tax in the amount of $546.00. The goal of the treatment plan is to determine whether the applicant meets the criteria for a catastrophic impairment. The parties agree that for the purpose of this hearing, only the costs associated with the orthopaedic assessment and the completion of the treatment plan are in dispute.

74The applicant submits that the treatment plan is reasonable and necessary. In response, the respondent acknowledges that it denied the treatment plan on the basis that the incident does not constitute an accident, and should the Tribunal find that the applicant is successful on the two preliminary issues, the respondent concedes that the treatment plan is reasonable and necessary.

75Given my finding that the incident constitutes an accident, and that the applicant is not barred from pursuing his claim for accident benefits, I further find that there is no dispute that the treatment plan is reasonable and necessary. Accordingly, the applicant has established that he is entitled to $2,200.00 for an orthopaedic assessment.

ORDER

76For the reasons outlined above, I find that:

1. The applicant has demonstrated that the incident that occurred on August 1, 2022, constitutes an “accident”, as defined in section 3(1) of the Schedule.
2. The applicant has established that he had a reasonable explanation for the late submissions of his OCF-1. As a result, he is not statute-barred from proceeding with his claim for accident benefits.
3. The applicant is entitled to $2,200.00 for an orthopaedic assessment.

77The application is granted.

Footnotes

1. 1Melissa Shea did not participate in the decision.