Citation: Sheikh v. TTC Insurance Company Limited, 2025 ONLAT 23-008468/AABS

Licence Appeal Tribunal File Number: 23-008468/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:

Qurra-Tul-Ain Sheikh

Applicant

and

TTC Insurance Company Limited

Respondent

DECISION

ADJUDICATOR:

Samia Makhamra

APPEARANCES:

For the Applicant:

Frank Mercurio, Paralegal

For the Respondent:

Steve Anderson, Counsel

Heard by written submissions

OVERVIEW

1Qurra-Tul-Ain Sheikh, the applicant, was involved in an automobile accident on August 25, 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 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

2The preliminary issue to be decided is:

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

SUBSTANTIVE ISSUES

3The substantive issues in dispute are:

i. Is the applicant entitled to $3,622.73 for physiotherapy services, proposed by Mackenzie Medical Rehab Centre in a treatment plan/OCF- 18 (“plan”) submitted March 7, 2023?

ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant is barred from proceeding with her claim for benefits as she failed to submit the application for accident benefits (OCF-1) within the time prescribed in the Schedule. Her application for the substantive issues in dispute is barred by s. 55(1) and is accordingly dismissed.

ANALYSIS

5I find that the applicant is statute-barred from proceeding with her application before the Tribunal as she did not provide a reasonable explanation for the delay in submitting the OCF-1.

6Section 55(1) of the Schedule states that an insured person shall not apply to the Tribunal if they have not submitted an application for a benefit within the times prescribed by the Schedule. Section 32(5) states that the applicant shall submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms. Section 34 states that a person’s failure to comply with that time limit does not disentitle them to a benefit if they have a reasonable explanation.

7I find that the evidence shows as follows. By letter dated September 12, 2022, the respondent sent the applicant an OCF-1.

8On February 21, 2023, through her representative, the applicant submitted a completed OCF-1 to the respondent.

9The respondent followed up on March 30, 2023, asking the applicant for a reasonable explanation for the delay in submitting the OCF-1.

10By letter dated April 3, 2023, the applicant’s representative advised that the delay was because the applicant did not believe her injuries required medical treatment at the time of the accident. She then submitted an OCF-1 when her symptoms became worse, requiring medical intervention.

11The applicant submitted to an examination under oath (EUO) on June 16, 2023. During the EUO, amongst other details, the applicant stated that her symptoms began shortly after the accident.

12The interpretation of “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada, 2003 ONFSCDRS 92 (“Horvath”), and was more recently reiterated in K.H. vs Northbridge, 2019 CanLII 101613 (ON LAT). The guiding principles are summarized as follows:

i. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.

ii. The onus is on the insured person to establish a “reasonable explanation.”

iii. Ignorance of the law alone is not a “reasonable explanation”.

iv. 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.

v. The lack of prejudice to the insurer does not make an explanation automatically reasonable.

vi. 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.

13On review of the submissions and evidence, I find the applicant’s explanation is not reasonable. Specifically, I find that the medical evidence indicates that the applicant’s impairments from the accident required medical attention shortly following the accident, and not a few months later when she submitted the OCF-1 to the respondent. This is also confirmed by the applicant’s own statements during the EUO. According to the medical records:

a. The applicant attended at the Medical Urgent Care on August 26, 2022, a day after the accident. Medical records noted body pain, lower back, neck, and leg pain. She was referred to physiotherapy and prescribed medication.

b. She attended at the Medical Urgent Care again on September 14, 2022 where it was noted that she had been to work, and that back pain had returned. She was prescribed Naproxen 500mg and Baclofen 10mg to manage pain symptoms.

c. She attended Mackenzie Medical Rehab Centre Inc. on February 2, 2023, for an assessment. The medical record for this visit noted her symptoms as headaches, neck, mid-back, lower back, and shoulder pain, with progression and worsening of pain symptoms. It was also noted that she had been taking pain medication on a regular basis.

14In considering the first factor in Horvath, it is difficult to reconcile the applicant’s statement that she did not believe her symptoms were serious enough with the information in the medical records. I find that the medical records show that she required medical attention following the accident, and not months later as claimed. Accordingly, I find that the applicant’s explanation fails the test for reasonableness.

15Consistent with the fourth factor in Horvath, a reasonable explanation must be assessed on a subjective-objective standard that considers an individual’s self-reported circumstances against what a reasonable person would do in those circumstances. I do not find it reasonable that the applicant did not believe her impairments were serious enough to submit an OCF-1 for the five months or so that took her to complete the form, as during that same period she sought and received medical help for her impairments, including on the day after the accident.

16Further, the applicant has not provided an explanation for the contradiction between the explanation for the delay in submitting the OCF-1 and the medical evidence. Accordingly, based on the above, on balance, I find that the applicant has not proven that her explanation for the delay is reasonable. In other words, she has not made any argument or demonstrated that the Tribunal should relieve against the consequences of her failure to act. As such, I find that she is barred from proceeding with her application to the Tribunal pursuant to s. 55(1) of the Schedule.

ORDER

17The applicant has not provided a reasonable explanation for failing to submit a completed and signed application for benefits within 30 days after receiving the application forms, pursuant to s. 32(5) of the Schedule. Her application for the substantive issues in dispute is barred by s. 55(1) and is accordingly dismissed.