Licence Appeal Tribunal File Number: 24-004854/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:
Zoran Samardzija
Applicant
and
Federated Insurance Company of Canada
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Zoran Samac, Counsel
For the Respondent:
Dilenthi Warakaulle, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Zoran Samardzija (the “applicant”) was involved in an accident or around February 25, 2023, and sought benefits pursuant to the Statutory Accident Benefits Schedule -- Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied benefits by Federated Insurance Company of Canada (the “respondent”) and applied to the Licence Appeal Tribunal -- Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The case conference report and order indicates that the issue to be decided is with respect section 32(5) as follows:
i. Is the applicant barred from proceeding with their claim for benefits as they failed to submit the application for benefits (OCF-1) within the time prescribed in the Schedule?
3Both parties indicated in their submissions that the preliminary issue is actually with respect to the application of section 32(1). Despite the purported error in the case conference report and order with respect to the issue in dispute, given that both parties appear to agree as to the correct preliminary issue and made submissions on that issue, I have considered section 32(1) in my analysis.
PRELIMINARY ISSUE IN DISPUTE
4The preliminary issue to be decided is:
i. Is the applicant barred from proceeding to a hearing as the applicant 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?
RESULT
5The applicant is barred from proceeding to a hearing pursuant to section 55(1) as he failed to notify the respondent of the circumstances giving rise to a claim for benefits within the timelines prescribed in section 32(1) of the Schedule.
ANALYSIS
Background
6The applicant was involved in an accident on February 25, 2023. The applicant did not notify the respondent of the accident at that time. According to his testimony from an examination under oath, he retained counsel approximately one month after the accident.
7Approximately three months post-accident, on or about May 26, 2023, the applicant first notified the respondent about the circumstances giving rise to his claim for accident benefits by submitting a completed application for accident benefits (OCF-1).
The Law
8Section 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.
9Section 34 states that if the insured person does not comply with the time limits, the insured person may still be entitled to benefits if they have a reasonable explanation for the delay.
10Pursuant 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.
11The 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.
The applicant failed to comply with section 32(1)
12The accident occurred on February 25, 2023. The applicant asserts that he was required to notify the respondent of his intention to apply for benefits within 30 days. In fact, section 32(1) requires notification within seven days.
13The applicant does not dispute that he first notified the respondent of the accident by sending a completed OCF-1 on May 26, 2023.
The applicant has not provided a reasonable explanation for the delay
14The applicant submits that he applied for accident benefits the day that the representative was retained, on May 26, 2023. However that directly contradicts the applicant’s own testimony that the representative was retained within a month of the accident, near the end of March 2023. According to his testimony at the examination under oath, he was advised when he retained his representative that he had to complete the forms for accident benefits.
15The applicant submits that the “brief delay” was on account of the applicant not having knowledge of accident benefits claims. He relies on I.G. v. Security National Insurance Company, 2019 CanLII 110085 (ON LAT) and submits that the Tribunal should consider subjective and objective factors pertaining to the reasons for the delay. I agree with this submission in principle, however, the applicant has not explained what subjective or objective factors the Tribunal ought to consider.
16The applicant seems to suggest that he was unsure that the circumstances of the incident were an “accident”. The applicant has not pointed me to evidence in support of his claim as to why he was uncertain the incident was an accident. The only explanation for the delay provided by the applicant during his testimony is his lack of experience or knowledge of the claims process. Despite seeking legal representation to submit a claim in a relatively short period, there was a further two-month delay prior to the applicant notifying the respondent of the intention to claim accident benefits.
17I am not persuaded that the applicant has provided a reasonable explanation for the delay. As noted above, ignorance of the law alone is not a “reasonable explanation”. Even if I were to accept that as an explanation for the initial delay, the applicant retained capable counsel within a month of the accident, but the applicant still delayed notifying the respondent of his intention to claim benefits by a further two months.
18The delay in reporting the claim for accident benefits has prejudiced the insurer by depriving it of the opportunity to obtain contemporaneous information regarding the applicant’s injuries, to obtain contemporaneous medical documentation, and investigate and assess the applicant’s claim. I am not persuaded that the applicant’s explanation is sufficient to relieve against the consequences of the failure to comply with the time limit.
19I find that the applicant is barred from proceeding to a hearing for failing to notify the respondent of the circumstances giving rise to a claim for benefits, in breach of section 32(1). He has not provided a reasonable explanation for the delay pursuant to section 34. Therefore, in accordance with section 55(1)1, I find that the applicant is barred from proceeding with his application.
ORDER
20The applicant is barred from proceeding with his application pursuant to section 55(1) of the Schedule for failure to comply with the time limits set out in section 32(1).
21The application is dismissed.
22The Tribunal shall vacate any date that has been scheduled for a substantive issue hearing. The Tribunal file will be closed.
Released: March 21, 2025
Kate Grieves
Adjudicator