Thomas v. The Commonwell Mutual Insurance Group, 2025 CanLII 39264

Citation: Thomas v. The Commonwell Mutual Insurance Group, 2025 ONLAT 24-010174/AABS - PI

Licence Appeal Tribunal File Number: 24-010174/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:

Carla S Thomas

Applicant

and

The Commonwell Mutual Insurance Group

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Carlos Echeverria, Paralegal

For the Respondent:

Cecil Jaipaul, Paralegal

Heard:

By Way of Written Submissions

OVERVIEW

1Carla S. Thomas, the applicant, was involved in an accident on May 17, 2022. The applicant 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, The Commonwell Mutual Insurance Group, 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 her claim for benefits, as she failed to submit her application for benefits (OCF-1) within the time prescribed in the Schedule?

RESULT

3The applicant may proceed with her application to the substantive issue hearing.

ANALYSIS

Background

4The applicant was involved in a motor vehicle accident on May 17, 2022.

5On May 18, 2022, the applicant reported her injuries to the respondent. The adjuster’s note dated May 18, 2022, indicates, “left msg for her to call me back regarding her injuries.”

6On May 26, 222, the respondent left a voicemail for the applicant stating that she wanted to speak further with her about her injuries in order to explain the benefits available to her. On that same day, the applicant returned the call, leaving two voicemails with her contact information. On May 30, 2022, the applicant attempted contact again, leaving another voicemail for the respondent.

7On June 1, 2022, the adjuster note states, “left msg for her to call me back. If she can’t get a hold of me, I will call her again tomorrow morning at 9:00 (leave me a msg if this time doesn’t work).”

8On June 2, 2022, the adjuster note states, “left another msg. While waiting to speak to her, I will send the AB initial letter and App Pkg to the clmt by email – if she needs hard copies, she can let me know. When I speak with her, I’ll obtain some more details about her injuries and will be able to explain the benefits that are available under her policy.” On June 2, 2022, the respondent emailed the applicant and thanked her for the messages she left her last week. The email states that “further to my voicemail messages from yesterday afternoon and this morning, I am attaching our initial letter and the Accident Benefits Application Package.” The letter dated June 2, 2022 was attached. The letter states that the deadline for the applicant to return the completed forms is July 7, 2022.

9On July 7, 2022, the adjuster note states, “OCF-1 not received. Follow-up sent today. If not rec’d by August 4, 2022, proceed to close AB Claim.” On July 7, 2022, the respondent emailed the applicant a follow-up letter stating that the OCF-1 had not been received and advising that the file would be closed if no response was provided by August 4, 2022.

10On August 3, 2022, the applicant emailed the respondent to discuss her claim. The applicant advised that she was in meetings all day and would be available on August 4, 2022.

11On August 4, 2022, the respondent spoke to the applicant. The adjuster log note states that the applicant apologized for the delay in providing her forms and stated that she was overwhelmed by the accident, her injuries and all of the forms that were sent out. The respondent went over the OCF-1 and the next steps for proceeding with her claim. It was discussed that the OCF-1 would be provided by the end of the next week.

12On August 4, 2022, the applicant emailed the respondent and thanked her for speaking and extending the date to submit her OCF-1 until the end of the week. The email notes, “since this accident my depression along with everything else has had me in a very dark place in my life and it has just left me lost.”

13On August 23, 2022, the adjuster note states “OCF-1 has been received (not yet responded to).” The OCF-1 dated August 11, 2022 was submitted to the respondent on August 12, 2022.

14By letter dated August 26, 2022, the respondent acknowledged receipt of the OCF-1 on August 12, 2022, and confirmed the benefits available to the applicant based on her application as a result of the accident.

Law

15Section 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 that give rise to the entitlement to the benefit, or as soon as practicable after that day.

16Once an insurer receives notice of an applicant’s intention to apply for statutory accident benefits, pursuant to s. 32(2) of the Schedule, the insurer must provide the applicant with the appropriate OCF-1 forms, a written explanation of benefits available, information to assist the person in applying for benefits and information on the election relating to income replacement benefits, non-earner and caregiver benefits, if applicable. Pursuant to s. 32(5) of the Schedule, the applicant must then submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms.

17Section 34 of the Schedule states that “a person’s failure to comply with a 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.

18Pursuant to section 55(1)1 of the Schedule, 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.

19The interpretation of “reasonable explanation” is guided by Horvath v. Allstate Company of Canada, 2003 ONFSCDRS 92 and was more recently reiterated in K.H. v. Northbridge General Insurance Company, 2019. 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.

20The onus is on the insured to establish that she has a reasonable explanation for the delay.

Parties’ Positions

21The respondent submits that the applicant is barred from proceeding with her claim for accident benefits due to her failure to comply with the statutory requirements under s. 32(5) of the Schedule. The respondent submits that the AB package was sent to the applicant on June 2, 2022, and contained all of the required information pursuant to s. 32(2) of the Schedule. Despite this, the applicant submitted the OCF-1 on August 12, 2022, failing to meet the 30-day timeline pursuant to s. 32(5), without providing a reasonable explanation. The respondent submits that the applicant has not met her onus of providing a reasonable explanation for the delay pursuant to s. 34 of the Schedule.

22The respondent submits that the applicant is familiar with the accident benefit claims process due to her prior involvement in a motor vehicle accident in 2009 and was objectively able to submit an OCF-1 in the 30 days after receiving the application package. The respondent submits that the applicant claimed various accident benefits related to her 2009 accident, therefore she cannot argue ignorance of the procedures involved. The respondent argues that if the applicant did not understand the documents she received via email, she failed to seek assistance from others, as she had done in prior situations. The respondent submits that it has suffered prejudice due to the delay by the applicant in applying for benefits. It argues that the delay has hindered its ability to carry out its evaluation of her claims.

23The applicant submits that her claim for accident benefits is not barred under s. 32(5) of the Schedule, as no delay occurred. She submits that the respondent failed to comply with s. 32(2) of the Schedule, and accordingly the submission deadline should commence on August 4, 2022, when the respondent first satisfied its statutory obligation. In the alternative, the applicant submits that should any delay be found, a credible and reasonable explanation was provided pursuant to s. 34 of the Schedule. The respondent was aware of the applicant’s psychological impairments and their exacerbation post-accident which is supported by the extensive medical documentation provided. The applicant further submits that the respondent’s own conduct – extending the OCF-1 deadline to August 12, 2022, constitutes an implicit acknowledgement of the applicant’s explanation.

24The applicant further submits that the respondent did not dispute the applicant’s email to the respondent dated August 4, 2022, which confirmed the OCF-1 extension deadline to August 12, 2022. The applicant argues that the adjuster log note dated August 4, 2022, confirms that the respondent “went over the OCF-1” and provided “next steps to submit OCF-1”, reinforcing the applicant’s claim that this was the first and only proper explanation of the forms and benefits. The applicant further submits that the respondent’s letter of August 26, 2022, acknowledged receipt of the OCF-1 and set out the available benefits. At no point did the respondent reject the OCF-1 or dispute the “reasonable explanation” provided for the submission delay.

25The applicant submits that her pre-existing psychological and physical impairments, exacerbated by the subject accident, combined with the respondent’s failure to provide meaningful assistance, establish a clear and reasonable explanation for the delay in submitting her OCF-1. She relies upon the clinical notes and records (“CNRs”) of Dr. Tom Bacher, family physician, submitted to the respondent on August 9, 2024, which document her injuries and treatment from her 2009 accident through to the subject accident. She submits that these records detail the worsening of her impairments, ongoing treatment and current condition post-accident. She further relies on the psychological assessment report of Dr. Cody Eriksen, psychologist, dated December 24, 2024, which confirmed the diagnosis of major depressive disorder and posttraumatic stress disorder. The applicant cites the Tribunal decision in Buttenham v. Northbridge General Insurance Company, 2024 CanLII 20694 (ON LAT), where the Tribunal found that anxiety and depression compounded with extensive medical records as credible and worthy in the analysis of “reasonable explanation”.

26In reply, the respondent submits that the applicant cannot make submissions on s. 32(2) of the Schedule because she did not raise this as a preliminary issue at the Case Conference. The respondent submits that a significant portion of the applicant’s submissions alleges that she was granted an “extension”. However, the respondent submits that recognizing such an “extension” would effectively amount to waiving the requirement under s. 32(5) of the Schedule. The mandatory language of s. 32(5) is strict and there is no authority granted to waive the applicant’s obligation under this provision. The respondent claims that even if such an extension were assumed – which it was not – it would not override the mandatory requirements of s. 32(5).

Late filed OCF-1 and Reasonable Explanation for the Delay

27From the evidence, it is clear that the applicant submitted the OCF-1 outside of the timeline stipulated in s. 32(5) of the Schedule. The OCF-1 was to be submitted by July 7, 2022, and was not submitted to the respondent until August 12, 2022. However, I find that the applicant has established that she has a reasonable explanation for the delay pursuant to s. 34 of the Schedule.

28I find based on the evidence provided, that the applicant’s OCF-1 was to be submitted by July 7, 2022, as set out in the respondent’s letter dated June 2, 2022. I further note that despite multiple attempts by both parties, no discussion took place between the applicant and the respondent prior to this letter being sent out. On July 7, 2022, the applicant was advised that she had not submitted her OCF-1 and that her file would be closed if the respondent did not hear from her by August 4, 2022. On August 3, 2022, the applicant attempted to speak to the respondent, but the telephone discussion did not take place until August 4, 2022. From review of the adjuster’s log notes and the subsequent email from the applicant to the respondent dated August 4, 2022, I find that the applicant was granted an extension to submit her OCF-1 by August 12, 2022. The note states, “we went over the OCF-1 – she will add her injuries and will sign and forward to me by email by the end of next week”. While the respondent in its reply submissions argues that there is no authority to waive the requirements in s. 32(5) of the Schedule, I find that the adjuster log note supports that the respondent did waive the requirements and agreed to the extension. This is further supported by the respondent’s letter dated August 26, 2022 that accepts the OCF-1 and sets out the applicant’s entitlement to benefits. It is unclear from the evidence provided by either party when the position that the OCF-1 was not accepted due to its late submission was subsequently raised.

29I further accept the applicant’s explanation for the delay in submitting her OCF-1, namely that she was experiencing psychological issues following the subject accident. The adjuster’s log note dated August 4, 2022, specifically references that the applicant was overwhelmed, depressed and was having a difficult time navigating the forms that were provided to her. I note that this was the first discussion between the applicant and the respondent following the accident, where her injuries were discussed, and the application process was verbally explained to the applicant. I find that there is no indication in the adjuster’s note that the respondent did not accept the applicant’s explanation at that time for her delay in submitting the OCF-1. I find that the respondent accepted the applicant’s explanation and agreed to allow her to file the forms late. The applicant then complied with this deadline by submitting her OCF-1 on August 12, 2022. The respondent’s subsequent letter dated August 26, 2022, acknowledges receipt of the OCF-1 and sets out the benefits available to her, with no further discussion of the OCF-1 being late or requesting a further explanation for the delay. I agree with the applicant’s that the respondent’s agreement to extend the deadline for the OCF-1 and its subsequent acknowledgement of the OCF-1, was an acceptance of the applicant’s explanation of the delay in providing the OCF-1.

30I find the applicant’s explanation that her various physical and psychological conditions impaired her ability to submit the completed OCF-1, to be credible and worthy of belief. The applicant advised the respondent in the August 4, 2022 telephone discussion that she was overwhelmed by the accident, her injuries and the forms that were sent with her. She advised the respondent that she was feeling quite depressed and had pre-existing fibromyalgia and chronic pain. She further stated that mentally she was not doing well and speaking with the respondent causes her great anxiety. The CNRs of Dr. Bacher establish that the applicant suffered significant pre-existing physical and psychological impairments from her previous motor vehicle accident. The CNR dated August 31, 2022, diagnosed the applicant with depression and notes that she is experiencing difficulties dealing with her insurance company. The CNR dated September 23, 2022, further diagnoses the applicant with anxiety and notes that she is mentally worn out from dealing with the insurance company and lawyers. These CNRs are contemporaneous with the timing of the submission of the OCF-1.

31As such, I find the applicant’s explanation that her psychological impairments limited her ability to complete and submit the OCF-1, and that she believed that her accident benefits claim had been accepted by the respondent, are both credible and reasonable.

32I do not accept the respondent’s argument that because the applicant had a previous accident benefits claim in 2009, that she is familiar with the application process and understood the consequences of not submitting her OCF-1 within 30 days. In any event, I do not find that the applicant has argued that the OCF-1 was submitted late due to her ignorance of the procedures involved.

33With respect to the prejudice claimed by the respondent, I do not find that the delay in submitting the OCF-1 was significant. The OCF-1 was submitted just over one month after the July 7, 2022 deadline. I do not find that the respondent has suffered significant prejudice or has been hindered in its ability to carry out its evaluation of the applicant’s claim by this one-month delay. I further find that the hardship to the applicant if she is prevented from proceeding to the substantive hearing to be far greater than the prejudice to the respondent due to the delay.

34For the above stated reasons, I find that the applicant has provided a reasonable explanation in accordance with s. 34 of the Schedule for her delay in submitting her OCF-1. I therefore find that the applicant may proceed with her application to the substantive issue hearing.

ORDER

35The applicant may proceed with her application to the substantive issue hearing.