Licence Appeal Tribunal File Number: 24-008464/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:
Tatyana Collins
Applicant
and
Echelon General Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Jessica Friend, Paralegal
For the Respondent:
Stan Savvateikine, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Tatyana Collins (the “applicant”) was involved in an automobile accident on November 22, 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 Echelon General 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 issues to be decided are:
i. Is the applicant barred from proceeding to a hearing as she 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?
ii. 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?
RESULT
3The applicant is statute-barred from proceeding with her application.
ANALYSIS
Background
4The applicant was involved in an accident on November 22, 2022, and did not notify her insurance broker or the respondent of the accident. The respondent submits that it was first notified of the applicant’s intention to seek accident benefits on December 12, 2023, when it received the application for accident benefits. The applicant put into evidence a letter to the respondent dated October 27, 2023, as well as a fax transmission sheet confirming that the application for accident benefits was faxed on that date.
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.
The applicant did not comply with section 32(1)
9The applicant concedes that she did not notify the respondent within the timelines set out in section 32(1). The onus is on the applicant to establish that she has a reasonable explanation for the delay.
10The applicant has provided the following purported “reasonable explanations”:
i. The other driver involved in the accident was aggressive, causing her to be fearful, and she let him leave without exchanging information. Because she let him leave, she did not know that she was entitled to accident benefits. It was only after discussing the incident with a relative, who suggested she speak to a lawyer, that the applicant was made aware of her potential claim; and
ii. After giving birth to her baby, she struggled to physically take care of herself and her baby due to severe back, shoulder and neck pain, and financial worries.
11I am not persuaded that the applicant has provided a reasonable explanation for the delay in notifying the respondent of her intention to apply for accident benefits.
12As outlined in Horvath, ignorance of the law alone is not a “reasonable explanation.” Accordingly, the applicant’s first argument in this regard is untenable.
13The applicant submits that there was a reasonable delay due to pregnancy, early labour, and postpartum, including navigating motherhood for the first time at a young age. The applicant further submits that her unborn baby was the main priority following the accident, as she had a previous ectopic pregnancy and was being followed by a doctor. The applicant submits that she has been suffering both physically with chronic pain and mentally, with anxiety and depression. The applicant put into evidence clinical notes and records (“CNRs”) indicating that she reported an increase in pelvic pressure, more severe abdominal contractions, back and neck pain, and increased anxiety from the accident, and that she suffers from Generalized Anxiety Disorder (“GAD”) related to the birth of her child and financial concerns. The applicant also points to the CNRs of Dr. Collin Nguyen, physician, dated October 30, 2023, indicating that she has suffered chronic pain for over a year.
14The applicant further submits that the respondent has not upheld its duty to act in good faith, as evidenced by its continued referral to a twelve-month delay, and having received the OCF-1 on December 12, 2023, when the applicant faxed it to the respondent on October 27, 2023. The applicant points out that the denial letter also contains this inaccuracy, arguing that denial letters ought not to be allowed to contain inaccuracies, referring to the Tribunal decision of T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT), which addresses denial letters and the overall consumer protection principles in the Schedule. As pointed out by the applicant, this decision addresses remedies under s. 38(8) and s. 44(5(a) of the Schedule. I find that this decision does not assist the applicant because it does not address remedies under s. 34. Further, I find that the applicant’s submissions with respect to the respondent’s conduct do not address her onus to demonstrate a reasonable explanation for the delay in reporting.
15The applicant also submits that the hardship endured by the applicant far outweighs any potential prejudice faced by the respondent, because she has submitted all medical documentation to the respondent in a timely manner and has complied with all its requests.
16I am not persuaded that the applicant had a reasonable explanation for the delay in reporting due to her physical and mental health issues, or her pregnancy, early labour, and postpartum, including navigating motherhood for the first time at a young age. The applicant does not explain how these issues prevented her from notifying the respondent of the accident either by phone call, email, or a letter until eleven months and five days after the accident.
17The applicant relies on the following Tribunal decisions in support of her claim. Although I am not bound by other decisions of the Tribunal, I have considered them as follows.
18In Shaver v. Onlia Insurance Company, 2023 CanLII 58481 (ON LAT), the Tribunal held that the application could proceed to a hearing despite a delay in reporting for one year and six months because the applicant did not know he could apply for benefits and his anxiety contributed to the delay. I find that case distinguishable. The Tribunal held that there was no evidence that the applicant’s anxiety played a role in the delay. Further, the applicant in that case was a pedestrian who was hit by an unknown driver. The Tribunal found it credible and worthy of belief that an unsophisticated party might not realize they can apply for accident benefits in these circumstances. The Tribunal further held that the applicant would face hardship if prevented from proceeding with his application because he had to undergo surgery on both ankles which required the use of a wheelchair, crutches, and a cane.
19Here the applicant was involved in an accident as the driver of her own vehicle, with her own insurance, and she did not provide evidence with respect to how her GAD would prevent her from reporting the accident. I note that the report of Dr. Akinade Adebowale, the psychiatrist who diagnosed her with GAD on June 15, 2023, does not mention the accident, and although Dr. Adebowale indicates that the applicant experiences discrete episodes of panic attacks, he states that the applicant does not engage in avoidance of situations that she associates with these attacks.
20The applicant relies on the decision of Olivier v. Zenith Insurance Company, 2024 CanLII 72671 (ON LAT), where there was a delay in reporting of over eleven months and the Tribunal held that the applicant could proceed with his claim because the respondent did not comply with s. 32(2) of the Schedule. I find that case distinguishable. The applicant in that case reported the accident after two days but decided not to pursue benefits until about six months later. The Tribunal held that the respondent did not comply with s. 32(2) and therefore the 30-day deadline to return the application for benefits was not engaged. The decision did not find that there was a delay in reporting the accident. Here the applicant did not report the accident to the insurer until eleven months and five days after the accident.
21The applicant relies on the decision of Buttenham v. Northbridge General Insurance Company, 2024 CanLII 20694 (ON LAT), where the Tribunal held that the applicant could proceed with her application even though the OCF-1 was submitted almost twenty-three months after the accident. The applicant submits that two of the reasons in that case were shoulder pain that increased a year after the accident and a focus on raising her daughter, which is like the applicant’s situation. I find that case distinguishable because the Tribunal did not address these two reasons in its finding. In finding that the applicant could proceed with her application, the Tribunal accepted the applicant’s explanations that her psychological impairments limited her ability to complete and submit the OCF-1, and that she was operating under the mistaken belief that her accident benefits claim had been accepted by the respondent.
22The applicant relies on the decision of Mekonnen v. Sonnet Insurance Company, 2024 CanLII 74770 (ON LAT), where the Tribunal held that the applicant provided a reasonable explanation despite a delay in reporting for over eight months and a delay in the submission of the OCF-1 of over twelve months. The applicant submits that the Tribunal found that the respondent contributed to the delay. I find that this case is distinguishable because the Tribunal found that the respondent contributed to the delay in the submission of the OCF-1, which is not the case here.
23Although the applicant has provided medical information as requested by the respondent, I find that the delay in reporting the claim for accident benefits has prejudiced the respondent by depriving it of the opportunity to obtain its own contemporaneous information regarding the applicant’s alleged injuries and investigate and assess the applicant’s claim.
24Having considered the evidence before me, I am not persuaded that the applicant has provided a reasonable explanation for the delay in notifying the respondent of her intention to apply for accident benefits.
25The applicant did not notify the respondent of the accident in accordance with section 32(1) and has not provided a reasonable explanation for the delay. Accordingly, pursuant to section 55(1)1 of the Schedule I find that the applicant is statute barred from proceeding with her application.
ORDER
26The applicant is barred from proceeding with her application before the Tribunal.
Released: April 11, 2025
___________________________
Laura Goulet
Adjudicator