Stralen v. Zurich Insurance Company Ltd., 2025 CanLII 39280

Citation: Stralen v. Zurich Insurance Company Ltd., 2025 ONLAT 24-007030/AABS-PI

Licence Appeal Tribunal File Number: 24-007030/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:

Simon Van Stralen

Applicant

And

Zurich Insurance Company Ltd.

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Casey Dorey, Counsel

For the Respondent:

Sharla Bandoquillo, Counsel

Heard:

By Way of Written Submissions

OVERVIEW

1Simon Van Stralen, the applicant, was involved in an accident on April 5, 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, Zurich Insurance Company Ltd., and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES IN DISPUTE

2The preliminary issues to be decided are:

i. Is the applicant barred from proceeding with his claim for benefits, as he failed to submit his application for benefits (OCF-1) within the time prescribed in the Schedule?

ii. Is the applicant barred under s. 61 of the Schedule from pursuing his claim for accident benefits at the Tribunal due to his alleged entitlement to benefits under the Workplace Safety and Insurance Act, 1997 (“WSIA”)?

RESULT

3The applicant is barred from proceeding with his application for benefits.

ANALYSIS

Background

4On April 5, 2022, the applicant was involved in a motor vehicle accident while in the course of his employment. While a pedestrian standing outside of his vehicle, he was struck by a third-party vehicle. On April 16, 2022, he elected to receive WSIB benefits.

5On October 18, 2023, 18 months and 13 days after the accident, the applicant informed the respondent about the accident and submitted an Application for Accident Benefits (“OCF-1”), dated October 18, 2023.

6On October 20, 2023, the respondent acknowledged receipt of the OCF-1 and informed the applicant about the election process in s. 61 of the Schedule. The respondent also requested an Examination Under Oath (“EUO”) pursuant to s. 33 of the Schedule.

7On December 15, 2023, the applicant attended the EUO and provided evidence that he was seeking to re-elect from WSIA benefits to benefits under the Schedule, as he was dissatisfied with how the Workplace Safety and Insurance Board (“WSIB”) handled his claim.

8On January 29, 2024, a Statement of Claim was issued against the at-fault driver. A copy of the Claim was provided to the respondent on February 20, 2024, along with the WSIB re-election agreement, dated February 16, 2024.

9On April 19, 2024, at the EUO, the applicant informed the respondent that the delay in submitting his OCF-1 was because “I was originally being dealt with WSIB”. He then stated that he went through WSIB and was dissatisfied.

10On May 1, 2024, counsel for the applicant wrote to the respondent and advised that,

I confirm that Mr. Van Stralen has recently elected to bring a tort claim against the at-fault driver and therefore de-elect WSIB benefits as it is his right to do so. I also confirm that the reason he de-elected was delayed was due to completing a full assessment of his rights to proceed with a tort claim.

As you know, in order to recover certain heads of damages in a tort claim, a claimant must show that their injuries are “permanent and serious”. This is not always evidence immediately following an accident and it only recently became clear that Mr. Van Stralen satisfies this test and has now decided to pursue with a claim against the at-fault driver (and accident benefits.

11On May 3, 2024, counsel for the applicant wrote the respondent and advised that the re-election from WSIA to benefits under the Schedule was not primarily for the purpose of claiming accident benefits as evidenced by the Statement of Claim issued in tort.

12On May 7, 2024, the respondent advised the applicant that the explanation provided for the delay was not reasonable as per section 34 of the Schedule. It further advised that the applicant had failed to provide evidence that his election was not primarily for claiming accident benefits contrary to s. 61(2) of the Schedule.

Late filed OCF-1 and Reasonable Explanation for the Delay

Law

13Section 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.

14Once 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.

15Section 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.

16Pursuant 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.

17The 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.

18The onus is on the applicant to establish that he has a reasonable explanation for the delay.

Parties’ Positions

19The respondent submits that the applicant is barred from proceeding with his claim for accident benefits due to his failure to comply with the statutory requirements under s. 32(5) of the Schedule. The respondent submits that the applicant failed to notify it of the accident within seven days and failed to submit his OCF-1 for over 18.5 months after the accident. The respondent submits that the applicant has not met his onus of providing a reasonable explanation for the delay pursuant to s. 34 of the Schedule. The respondent submits that the explanation provided by the applicant for the delay is not worthy of belief in the face of the medical evidence of the applicant’s severe injuries in the days and weeks post-accident. The respondent submits that there was adequate evidence of serious injuries for the applicant to have canvassed tort and notify the respondent of the accident.

20The respondent submits that the significant delay of over 18.5 months in reporting the accident and receiving the OCF-1 is presumptively prejudicial to it. The respondent was denied the opportunity to investigate, administer and assess the applicant’s claim contemporaneously when benefits may have been payable. The respondent submits that there is no hardship to the applicant if he cannot access accident benefits as his time off work post-accident was covered by WSIA benefits and his treatment and medications have been covered by OHIP and WSIA benefits.

21The applicant submits that he has a reasonable explanation for the delay of submitting his application for accident benefits. The applicant claims that he applied for and was in receipt of WSIB benefits immediately after the accident and was therefore barred from applying for accident benefits at that time. At that time, he believed that his condition would improve. As of September 8, 2022, more than five months after the accident, the applicant was told that he would experience a full recovery of injuries and therefore a tort claim was not viable at that time and he would be unlikely to meet the impairment threshold set out by the Insurance Act, requiring his injuries to be “serious” and “permanent”. The applicant submits that it was reasonable for the applicant to wait until it became clear that his injuries would meet the impairment threshold for him to de-elect from WSIB, pursue a tort claim and apply for accident benefits.

The applicant has not established a reasonable explanation for the delay

22Upon review of the evidence, it is clear that the applicant did not report the accident to the respondent within seven days, in contravention of s. 32(1) of the Schedule. It is also clear that the applicant submitted his OCF-1 outside of the timeline stipulated in s. 32(5) of the Schedule. The applicant reported the accident and submitted the OCF-1 to the respondent on October 18, 2023, 18 and a half months after the accident.

23I find that the applicant has not established that he had a reasonable explanation for the delay in submitting his OCF-1, pursuant to s. 34 of the Schedule, for the following reasons.

24After considering the parties’ submissions, I do not accept the applicant’s claim that he delayed reporting the accident and applying for accident benefits until it was clear that his injuries would meet the impairment threshold for him to de-elect from WSIB, pursue a tort claim and apply for accident benefits. I find that that the applicant has not directed the Tribunal to any medical evidence contemporaneous with the timing of his submission of his OCF-1, which shows that his injuries were “permanent and serious” at that time or that there had been any change or worsening in his medical condition. The only medical documentation referenced in the applicant’s submissions is from Ottawa Hospital on September 8, 2022 and December 8, 2022. The OCF-1 was submitted almost a year later on October 18, 2023. While there is a Physiatry report from Dr. Harpreet Sangha, dated August 28, 2024, and an Occupational Therapy Functional Assessment report from Donna Matheson, dated July 26, 2024, attached to the applicant’s submissions, these reports and their findings are not referred to in the applicant’s submissions and these reports were prepared several months after he submitted his OCF-1.

25I find that the applicant’s evidence at his EUO that he was pursuing his accident benefits claim because he was dissatisfied with the WSIB, is the reason he finally advised the respondent of the accident and submitted his OCF-1. I do not accept this as a reasonable explanation for the delay. The applicant has not provided any particulars in his submissions as to why he was dissatisfied or provided any evidence in this regard. I find that he has provided insufficient information to persuade me that there is a reasonable explanation for the delay and there is a lack of corroborating evidence to support his position.

26For the reasons set out above, I find the applicant did not notify the respondent of the accident or apply for benefits within the timelines prescribed by the Schedule and has not provided a reasonable explanation for the delay. Accordingly, I find he is statute-barred pursuant to s. 55(1) of the Schedule from proceeding with his application before the Tribunal.

Is the applicant barred under s. 61 of the Schedule

27As I have found that the applicant is statute-barred pursuant to s. 55(1) of the Schedule from proceeding with his application before the Tribunal, it is not necessary for me to determine if the applicant is barred under s. 61 of the Schedule from pursuing his claim for accident benefits due to his alleged entitlement under the WSIA.

ORDER

28The applicant is barred from proceeding with his application for benefits. The application is dismissed.