Samad v. TTC Insurance Company Limited, 2025 CanLII 47366

Samad v. TTC Insurance Company Limited

Citation: Samad v. TTC Insurance Company Limited, 2025 ONLAT 24-010898/AABS-PI

Licence Appeal Tribunal File Number: 24-010898/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:

Rubina Samad

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

1Rubina Samad, 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:

i. Is the applicant barred from proceeding to a hearing as she 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 her 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. Her uncle, Ibrahim Rahman, was also a passenger on the bus and has submitted an application to the Tribunal (Tribunal File No. 24-011168/AABS).

5Immediately after the subject accident, the applicant attended at Humber River Hospital and reported symptoms of neck and back pain, along with nausea and vomiting. The applicant also contacted the Toronto Police Services and confirmed that she was a passenger on the bus that was involved in the accident.

6On December 17, 2021, the applicant’s uncle Mr. Rahman, advised the respondent that the applicant was injured in the accident on August 6, 2021.

7On 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 August 6, 2021.

8On December 21, 2021, an audio recorded statement of the applicant was taken by the respondent. The applicant confirmed that she was a passenger on a TTC bus that was involved in an accident on August 6, 2021. The applicant further confirmed that she had been involved in a previous accident in 2011 and had legal counsel for her 2011 accident claim. The applicant advised that she suffered injuries to her back and ankle in the 2011 accident and the subject accident made her symptoms worse. Following the subject accident, she attended at Humber River Hospital and was seen by her family physician, Dr. Paul Matthew, who referred her for physiotherapy and to a pain clinic.

9On December 30, 2021, the respondent sent the applicant an Accident Benefits package.

10The applicant submitted her Application for Accident Benefits form (“OCF-1”), dated February 9, 2022, to the respondent, on February 11, 2022.

11By correspondence dated March 29, 2022, the respondent advised the applicant that her claim was denied because she had failed to comply with s. 32(1) of the Schedule, as she had not notified the respondent of her intention to apply for benefits within seven days of the accident. The respondent cited s. 34 of the Schedule and offered the applicant an opportunity to provide a reasonable explanation for the delay.

12By email dated May 19, 2022, counsel for the applicant advised the respondent that the delay in submitting the OCF-1 was due to her immediate priority of taking care and providing support for Mr. Rahman who fell down an escalator in December 2021.

13On December 7, 2022, the applicant participated in an Examination Under Oath (“EUO”) at the request of the respondent.

14By correspondence dated December 9, 2022 and January 5, 2023, the respondent requested information and medical documentation from the applicant. The applicant’s representative provided some of the requested information and medical documentation on January 23, 2023.

15By correspondence dated May 4, 2023, the respondent advised the applicant that she is not entitled to accident benefits in accordance with sections 32, 34 and 55 of the Schedule. The respondent further advised that the explanation for delay was not reasonable and notes that “you admitted at the EUO that you could have contacted the TTC and could have completed forms. You did not have a reason for not doing so.”

16By correspondence dated May 9, 2023, the respondent reiterated its position that the applicant’s explanation for the delayed submission was not reasonable. It 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

17Section 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.

18Once 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.

19Section 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.

20Pursuant 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.

21The 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.

22The onus is on the applicant to establish that she has a reasonable explanation for the delay.

Parties’ Positions

23The 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(1) of the Schedule. The respondent submits that the applicant did not notify the respondent of her intention to apply for accident benefits until almost four and a half months after the accident, well-outside the seven-day timeline prescribed by s. 32(1) of the Schedule.

24The respondent submits that the applicant failed to notify it within seven days about the accident. The respondent submits that the applicant’s evidence at her EUO was that she took the TTC after the subject accident and could have reported the incident to an employee in uniform or could have called TTC Customer Service. The applicant further acknowledged that in the four months after the accident, she did not report the incident to anyone at the TTC, but she told her lawyer everything. The respondent submits that while the applicant may have been under stress dealing with her injuries connected to her 2011 accident and the subject accident, she had access to legal and medical support along with the requisite cognitive ability to contact the respondent with information regarding her accident-related injuries.

25The 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.”

26The applicant submits that she has a reasonable explanation for the delay in notifying the respondent of the accident. The applicant argues that given that she was an inexperienced party and unaware of the accident benefits process, the respondent failed in its duty to inform her of potential eligibility for accident benefits by not providing an accident benefits package nor any guidance on available entitlements before the applicant retained counsel on November 30, 2021. The applicant submits that she reported the incident to the police and the respondent should have obtained the police report and provided the information pertaining to their entitlement to accident benefits to passengers on the TTC bus involved in the accident.

27The applicant further submits that she notified the respondent as soon as she knew she could claim accident benefits for this incident, which was as soon as practicable. She submits that within the time period of seven days of retaining counsel on November 30, 2021, Mr. Rahman was in contact with the respondent on December 7, 2021, on behalf of himself and the applicant. On December 17, 2021, when Mr. Rahman spoke to the respondent, he advised that the applicant was also claiming accident benefits. Within four days thereafter on December 21, 2021, the applicant provided a statement to the respondent of her intention to apply for accident benefits.

28The applicant further submits that her explanation is credible and worthy of belief since she may not have known that the procedure of accident benefits was the same as the method to claiming benefits that she previously claimed in respect to her 2011 accident. She argues that being on a public transit bus is different than being an operator and/or passenger in a car like the 2011 accident.

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

29I 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 she first notified the respondent of her intention to apply for benefits when she provided a statement to the respondent on December 21, 2021. This delay is well outside of the seven-day timeline as mandated by s. 32(1). Therefore, the main issue is whether the applicant has provided a reasonable explanation for the delay.

Section 34 – reasonable explanation for the delay

30I find that the applicant has not established a reasonable explanation for her delay in notifying the respondent of her intention to apply for accident benefits.

31I 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 responsibility of an insured to take responsibility for advancing his or her own claims.

32I 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 her immediate priority of taking care and providing support for Mr. Rahman who fell down an escalator in December 2021. The issue in dispute before me is the delay in informing the respondent of her intention to apply for accident benefits, not in submitting her OCF-1. I find that the applicant has not provided the Tribunal with any evidence that she provided the respondent with a reasonable explanation for the delay at issue in response to the respondent’s letter dated March 29, 2022.

33I further find that ignorance of the law alone is not a “reasonable explanation”, as set out in Horvath. I find that the applicant confirmed in her recorded statement on December 21, 2021, that she had legal representation for her 2011 accident claim and that at the time of the subject accident, the claim had not yet settled. She further stated at her EUO that she did not speak to anyone from the TTC that she was injured or may want to make a claim following the accident. She then states, “No, I told my lawyer about everything”. I agree with the respondent that the applicant had access to legal advice following the subject accident. I further find that there is no evidence that the applicant lacked the capacity to request assistance or was unable to contact her legal representative for advice.

34I agree with the respondent that the applicant was familiar with the accident benefits process stemming from her involvement from her 2011 accident and her 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.

35I 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 a four-and-a-half-month delay is significant, particularly in a case such as this where the applicant was aware of her injuries, and she had an open accident benefits claim in respect to a previous accident. Although the applicant argues that the respondent is not prejudiced by a four-and-a-half-month 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.

36For 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 she is statute-barred pursuant to s. 55(1) of the Schedule from proceeding with her application before the Tribunal.

ORDER

37The applicant is statute barred from proceeding to a hearing for her claim for accident benefits. The application is dismissed.