Rahman v. TTC Insurance Company Limited, 2025 CanLII 47336

Citation: Rahman v. TTC Insurance Company Limited, 2025 ONLAT 24-011168/AABS-PI

Licence Appeal Tribunal File Number: 24-011168/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:

Ibrahim Rahman

Applicant

and

TTC Insurance Company Limited

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Ryan St. Aubin, Counsel

For the Respondent:

Steve Anderson, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Ibrahim Rahman, the applicant, was involved in an accident on August 6, 2021, 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 respondent, TTC Insurance Company Limited, 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:

a. Is the applicant barred from proceeding to a hearing as he has 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

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

ANALYSIS

Background

4On August 6, 2021, the applicant was a passenger on-board a TTC bus when it was involved in a motor vehicle accident. His niece, Rubina Samad, was also a passenger on the bus and has submitted an application to the Tribunal (Tribunal File No. 24-010898/AABS).

5Immediately after the subject accident, the applicant attended at Humber River Hospital and the discharge diagnosis was multiple contusions to the left side of his head, face, neck shoulder and thigh. The applicant subsequently attended at Humber River Hospital on September 8, 2021 and December 1, 2021, with ongoing complaints from the accident. The applicant subsequently saw Dr. Magdy Ibrahim, walk-in clinic doctor, and attended for treatment at multiple physiotherapy clinics.

6On September 24, 2021, the respondent obtained the applicant’s contact information from Toronto Police Services. Between September 24 to October 28, 2021, the respondent made attempts to contact the applicant. On October 28, 2021, the respondent spoke with the applicant, who advised that he would be retaining legal counsel for this accident. The respondent advised that it would email the accident benefits application package to the applicant.

7The applicant retained his current counsel on November 30, 2021. The applicant submits that at the time he retained counsel, he had not received the accident benefits package and was advised by his representative to request the application package.

8On December 7, 2021, the applicant called the respondent and advised that he had not received the accident benefits application package. The respondent sent an email to the applicant on December 7, 2021 acknowledging that the applicant had not received his accident benefits package and sent him a copy of same. A letter enclosing the accident benefits package was also sent to the applicant by regular mail under cover letter dated December 8, 2021.

9On December 20, 2021, counsel for the applicant emailed the respondent and advised that the applicant will be proceeding with a claim for bodily injury and damages arising out of the accident on the TTC bus on August 6, 2021.

10On December 20, 2021, the respondent took an audio recorded statement of the applicant where he highlighted his accident-related symptoms.

11On December 22, 2021, the applicant fell down an escalator at a TTC subway station.

12On April 26, 2022, the respondent received an unsigned application for accident benefits (“OCF-1”). On May 6, 2022, the respondent received a second unsigned OCF-1.

13By email dated May 19, 2022, counsel for the applicant advised the respondent that the delay in submitting the OCF-1 was due to the applicant falling down the escalator in December 2021. The applicant was hospitalized and was therefore unable to sign the OCF-1.

14On May 20, 2022, the respondent received a signed OCF-1.

15On December 7, 2022, the applicant underwent an Examination Under Oath (“EUO”) at the request of the respondent.

16By correspondence dated December 9, 2022 the respondent wrote to the applicant requesting information and medical documentation to determine his ongoing entitlement to benefits. By email dated December 14, 2022, counsel for the applicant advised that he would not be able to comply with the deadline of January 3, 2023 for the production of documents due to the holidays and office closure. By correspondence dated January 5, 2023, the respondent requested the outstanding documents.

17By correspondence dated May 4, 2023, the respondent advised the applicant that he is not entitled to accident benefits in accordance with sections 32, 34 and 55 of the Schedule because he did not provide a reasonable explanation for the delay in complying with s. 32(1) and 32(5) of the Schedule. The respondent set out the key dates and events relevant to the timelines set out in the Schedule.

18By correspondence dated May 9, 2023, the respondent advised that the applicant’s explanation for the delayed submission was not reasonable pursuant to s. 34 of the Schedule. The letter notes that it has not received some of the information and documents requested in its letters dated December 9, 2022 and January 5, 2023 and therefore the applicant is non-compliant with s. 33 of the Schedule.

Late notice of the accident and a Reasonable Explanation for the Delay

Law

19Section 32(1) of the Schedule provides that a person who intends to apply for accident benefits shall notify the insurer of their intention to apply 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.

20Once 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.

21Section 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.

22Pursuant 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.

23The 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 CanLII 101613 (ON LAT). 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.

24The onus is on the applicant to establish that she has a reasonable explanation for the delay.

Parties’ Positions

25The 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(1) of the Schedule. The respondent submits that the applicant did not notify the respondent of his intention to apply for accident benefits until well-outside the seven-day timeline prescribed by s. 32(1) of the Schedule.

26The respondent submits that the applicant failed to notify the respondent within seven days about the accident despite contacting the Police. The respondent submits that the applicant gave evidence at his EUO that he spoke to the police following the accident and his niece obtained a copy of the police report. The respondent argues that despite this, the applicant failed to contact the respondent.

27The respondent further submits that the applicant failed to notify it about the accident, pursuant to the timelines prescribed in the Schedule, despite reporting the accident and his injuries to Dr. Ibrahim, walk-in clinic doctor; and attending several treatment facilities from August 6, 2021 to November, 2021.

28The respondent argues that the applicant’s position that he was unaware of how to contact the respondent in the months following the accident is not credible. The respondent argues that the applicant had access to experienced legal counsel and an appointed litigation guardian who was helping him make decisions in his tort and accident benefits claim in respect to his previous accident in 2011. This claim remained open at the time of the subject accident. The respondent submits that while the applicant may have been under stress dealing with his injuries connected to the 2011 accident and the subject accident, he had access to legal and medical support, along with the requisite cognitive ability to contact the respondent with information regarding his accident-related injuries and any intention to pursue accident benefits.

29The respondent relies upon the decision in Syed v. Allstate Insurance Company of Canada, FSCO A02-000461, February 14, 2023, where the Arbitrator adopted the principal that “an applicant must take responsibility for advancing his/her own case. It is not sufficient that an insured person leaves everything up to his/her own agent.”

30The applicant submits that he has a reasonable explanation for the delay in notifying the respondent of the accident. The applicant argues that he did not retain legal counsel for this incident until November 30, 2021, and therefore only started receiving legal advice from this time onward. The applicant disputes the respondent’s submission that the applicant had legal representation prior to November 30, 2021.

31The applicant submits he is justified in his delayed notification of the accident, because the respondent failed in its duty to inform him of the potential eligibility for accident benefits by not providing an accident benefits package nor any guidance on available entitlement or how to access his benefits before December 8, 2021. The applicant submits that the respondent should have obtained the police report from the accident to obtain details of the individuals that may be entitled to accident benefits and then provided those individuals with the application package.

32The applicant further submits that he was on a TTC bus for this accident, which is materially different than being an operator and/or passenger in a vehicle like the 2011 accident. The applicant argues that it is unreasonable for him to have been aware of the process. The applicant submits that he ensured that he appeared on the police report, attended for treatment, and had a legal representative to assist him.

Section 32(1) – failure to notify the respondent within seven days or as soon as practicable

33I find that the applicant did not notify the respondent within the timeframe set out in s. 32(1) of the Schedule. The applicant does not dispute that he failed to notify the respondent of the accident and his intention to apply for benefits within seven days of the accident. I find that respondent acknowledges that it learned of the applicant’s intent to apply for benefits on October 28, 2021. The respondent submits that it spoke to the applicant on October 28, 2021, and the applicant advised that he would be retaining legal counsel. This is well outside of the seven-day notice requirement in s. 32(1) of the Schedule. Therefore, the main issue is whether the applicant has provided a reasonable explanation for the delay.

Section 34 – reasonable explanation for the delay

34I find that the applicant has not established a reasonable explanation for his delay in notifying the respondent of his intention to apply for accident benefits.

35I am not persuaded that the applicant’s stated reasons for the delay meet the “reasonable explanation” test as delineated in Horvath. I do not accept the applicant’s argument that the respondent should have obtained the police report from the accident in question and contacted all passengers about their potential right to claim accident benefits. The applicant has not provided me with any authority that requires an insurer to do this in the circumstances. I agree with the respondent that it is the obligation of an insured to take responsibility for advancing their own claims.

36I find that the email dated May 19, 2022, sent from counsel for the applicant to the respondent, did not address the delay in question. The letter advised the respondent that the delay in submitting the OCF-1 for the applicant was due to his fall in December 2021. The issue in dispute before me is the delay in informing the respondent of his intention to apply for accident benefits, not in submitting his OCF-1. I find that the applicant has not provided the Tribunal with any evidence that he provided the respondent with a reasonable explanation for the delay at issue.

37I find that ignorance of the law alone is not a “reasonable explanation”, as set out in Horvath. I find that the applicant confirmed in his EUO, that he had legal representation for his 2011 accident claim and that at the time of the subject accident, the claim had not yet settled. I agree with the respondent that the applicant had access to legal advice following the subject accident. I find that it is reasonable to assume that the applicant would have advised his current legal counsel of the subject accident, when he was actively involved in an ongoing legal dispute about injuries he suffered in a previous accident. I further find that there is no evidence that the applicant lacked the capacity to request assistance or was unable to contact his legal representative for advice in respect to the subject accident.

38I agree with the respondent that the applicant was familiar with the accident benefits process stemming from his involvement from his 2011 accident and his claim for accident benefits that remained open at the time of the subject accident. While the two accidents can be differentiated because the 2011 accident involved a vehicle and the subject accident happened on a TTC bus, I agree with the respondent that this was not a situation where an insured was unaware of the accident benefits process.

39I am not persuaded by the applicant’s argument that the respondent was not prejudiced by the delay in notification of the applicant’s claim for accident benefits. In my view the delay is significant, particularly in a case such as this where the applicant was aware of his injuries, and he had an open accident benefits claim in respect to a previous accident. Although the applicant argues that the respondent is not prejudiced by the delay, as specified in Horvath, the lack of prejudice to the insurer does not make an explanation automatically reasonable. Rather, the onus rests with the applicant to provide a reasonable explanation for the delay.

40For the reasons set out above, I find the applicant did not notify the respondent of the accident 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.

ORDER

41The applicant is statute barred from proceeding to a hearing for his claim for accident benefits. The application is dismissed.