Licence Appeal Tribunal File Number: 24-014182/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:
Jenna Maclean
Applicant
And
The Commonwell Mutual Insurance Group
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Nicholas Whelan, Paralegal
For the Respondent:
Cecil Jaipaul, Paralegal
Heard:
By Way of Written Submissions
OVERVIEW
1Jenna Maclean (the “applicant”) was involved in an accident on November 21, 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 The Commonwell Mutual Insurance Group (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 issue to be decided is:
i. Is the applicant barred from proceeding to a hearing for 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 is statute barred from proceeding to a hearing for her claim for accident benefits.
ANALYSIS
Background
4On July 23, 2022, the applicant was involved in a motor vehicle accident (“July 2022 accident”). Following the accident, the applicant retained counsel and began attending for physiotherapy treatment. She submitted an OCF-1 to Intact Insurance Company and claimed benefits under this policy.
5On November 21, 2022, the applicant was involved in a second motor vehicle accident (“November 2022 accident”), which is the subject accident in dispute.
6On November 26, 2022, the respondent emailed and mailed the applicant a letter enclosing an Accident Benefits package, with a detailed explanation of the benefits available, and how to proceed with a claim. The letter set out that the OCF-1 was due by December 30, 2022.
7On June 19, 2023, the applicant’s representative emailed the respondent a signed OCF-1, dated June 19, 2023.
8On June 27, 2023, the respondent responded to the applicant’s OCF-1 and requested a reasonable explanation for the delay in submitting the OCF-1. The applicant did not respond to this letter.
9On October 18, 2023, the applicant attended an Examination Under Oath (“EUO”).
10On March 25, 2024, the respondent advised the applicant that it was denying her claim for accident benefits due to her non-compliance with s. 32(5) of the Schedule.
Late filed OCF-1 and Reasonable Explanation for the Delay
Law
11Section 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.
12Once 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.
13Section 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.
14Pursuant 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.
15The interpretation of “reasonable explanation” is guided by Horvath v. Allstate Company of Canada, 2003 ONFSCDRS 92 and was reiterated in K.H. v. Northbridge General Insurance Company, 2019. 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.
16The onus is on the applicant to establish that she has a reasonable explanation for the delay.
Parties’ Positions
17The 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 applicant failed to submit her OCF-1 within 30 days, and instead submitted her OCF-1 on June 19, 2023, seven months post-accident. There was no response from the applicant during the delay period after she was provided with the AB package. 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. The respondent relies upon the evidence provided by the applicant at her EUO on October 18, 2023, to support the fact that the applicant has no explanation for the delay in submitting her OCF-1. The applicant’s evidence was that, “Honestly, I didn’t want to stress”.
18The respondent submits that the delay in submitting her OCF-1 is 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.
19The applicant submits that she should be allowed to proceed with her claim for benefits as she has a reasonable explanation for the delay in submitting her OCF-1. The applicant relies on the evidence she gave at the EUO. She argues that it is clear through the answers and statements she provided that her injuries took a few months to set in and really differentiated from the July 2022 accident. She states that she was going through mental health issues following the subject accident and could not deal with anything that would cause her stress or worry. The applicant submits that her two accidents were almost four months apart which would not make her familiar with the accident benefits process. The applicant further submits that the late filing of her OCF-1 is not prejudicial to the respondent with respect to properly evaluating her claim.
The applicant has not established a reasonable explanation for the delay
20Upon review of the evidence, it is clear that the applicant submitted her OCF-1 outside of the timeline stipulated in s. 32(5) of the Schedule. The applicant submitted her OCF-1 on June 19, 2023, seven months post-accident.
21I find that the applicant has not established that she has a reasonable explanation for the delay in submitting her OCF-1, pursuant to s. 34 of the Schedule, for the following reasons.
22I find that the applicant’s claim that she delayed reporting the accident and applying for accident benefits due to her mental condition, is not credible or worthy of belief. I agree with the respondent that the applicant has not directed the Tribunal to sufficient corroborating medical evidence with respect to her mental health following the subject accident up until the date of the submitted OCF-1. The applicant has not provided sufficient evidence that her psychological symptoms prevented her from submitting her OCF-1. I find upon review of the clinical notes and records of the applicant’s family physician, Dr. Pinto, the applicant reports that she is doing well, has less anxiety and fatigue and is attending cognitive behavioural therapy. I find that these records do not support the applicant’s evidence at her EUO that she was suffering from a psychological condition that prevented her from submitting her OCF-1 for seven months.
23I further find that following the subject accident, the applicant was actively engaged in treatment during the time period that she delayed submitting her OCF-1. There is a treatment plan prepared by Rouge Valley Physiotherapy - Ajax dated January 23, 2023, submitted for injuries suffered in respect of the subject accident. I find that the applicant attended and was treated for her injuries sustained in the subject accident. She was therefore aware of the onset of any new injuries that she suffered as a result. There is no indication that she suffered any difficulties attending and receiving treatment due to her mental health. Therefore, I find that her mental health condition or the onset of new injuries would not have prevented her from submitting her OCF-1 within the required timelines.
24I find that ignorance of the law is not a reasonable excuse. I find that it is reasonable to conclude that the applicant knew or ought to have known that the submission of her OCF-1 was untimely and that there were consequences for her non-compliance with the Schedule. I find that the letter dated November 26, 2022, sent to the applicant, clearly set out that her OCF-1 was to be submitted within 30 days and the consequences for failing to provide the OCF-1. Having recently submitted the same document with respect to her July 2022 accident, I find the applicant would have been familiar with the process. In addition, the applicant had the same counsel for both of her accidents, who would have been in a position to advise her in respect of same or to answer any questions. I agree with the respondent that the applicant’s legal counsel would be familiar with the procedural requirements set out in the Schedule, as they were retained specifically to assist the applicant in navigating these processes. I find that any confusion or lack of understanding on her part of the consequences of not filing her OCF-1 within the 30-day time limit, is not a valid justification for non-compliance with the requirements set out in the Schedule.
25I find that the respondent has been prejudiced by the applicant’s late filing of her OCF-1. The delay in submitting her OCF-1 prevented the respondent from requesting contemporaneous medical examinations and records. As the applicant was involved in two accidents within months of each other, it was reasonable and necessary for the respondent to be able to assess the applicant’s status at the date of the second accident, and what if any contribution and causation the second accident had to her injuries and condition. The delay in the submission of the OCF-1 prevented the respondent from properly assessing the applicant’s claims. The applicant has not shown hardship capable of outweighing the prejudice. I find that the applicant has not shown that the Tribunal should relieve against the consequences of her failure to act.
26For the reasons set out above, I find that the applicant did not submit her OCF-1 within the timelines prescribed in the Schedule and she has not provided a reasonable explanation for the delay. Accordingly, I find that she is statute-barred pursuant to s. 55(1) of the Schedule from proceeding with her application before the Tribunal.
ORDER
27The applicant is statute barred from proceeding to a hearing for her claim for accident benefits. The application is dismissed.
Released: May 9, 2025
___________________________
Melanie Malach
Adjudicator