Licence Appeal Tribunal File Number: 23-010617/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:
Connor (prev. William) A MacLeod
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Laura Goulet
APPEARANCES:
For the Applicant: Connor (prev. William) MacLeod, Applicant
For the Respondent: Mai Nguyen, Counsel
HEARD: By way of written submissions
OVERVIEW
1Connor MacLeod, the applicant, was involved in an automobile accident on August 18, 2018, 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, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The preliminary issues to be decided are:
i. Does the Tribunal have jurisdiction under s. 280 of the Insurance Act, RSO 1990 (“the Insurance Act”) in this matter?
ii. Is the election of benefits final pursuant to s. 35 of the Schedule?
iii. Is the applicant precluded from applying pursuant to s. 32 of the Schedule?
SUBSTANTIVE ISSUES
3The substantive issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?
ii. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
iii. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from August 18, 2018, to August 18, 2020?
iv. Is the applicant entitled to a non-earner benefit of $185.00 per week from August 18, 2018, to ongoing?
v. Is the applicant entitled to a medical benefit from August 18, 2018, to ongoing?
vi. Is the applicant entitled to a rehabilitation benefit from May 18, 2018, to ongoing?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is precluded from applying to the Tribunal because he did not comply with the timelines set out in s. 32 of the Schedule.
PROCEDURAL ISSUES
The applicant’s submissions
5In his submissions, the applicant generally refers to supplemental information that is appended to his submissions, and he indicates that he also relies on evidence disclosed in his Case Conference Summary. The applicant’s submissions, including the pages appended, total 1,179 pages, none of which are bookmarked or tabbed.
6In paragraphs 18 and 19 of the Case Conference Report and Order (“CCRO”) dated March 4, 2024, the Tribunal ordered that submissions must make specific reference to the evidence and authorities by tab and page number, and that the hearing adjudicator has the discretion to determine whether to consider submissions that do not comply.
7In making my findings, I have considered the applicant’s submissions. In accordance with the Order of the Tribunal in the CCRO dated March 4, 2024, I have exercised my discretion and I have not considered any of the evidence appended to the submissions that was not specifically referenced by the applicant. It is not the Tribunal’s task to make the case for the applicant because doing so would cross into impermissible advocacy on behalf of one of the parties when it is the Tribunal’s place to be a neutral decision maker.
Request to exclude the applicant’s reply submissions
8The respondent requests that the Tribunal exclude paragraphs 2 to 13 of the applicant’s reply submissions, as well as all medical documentation attached thereto. The respondent argues that the reply submissions are improper and relying on them would constitute a breach of the rules of evidence. The respondent submits that the reply submissions are an attempt to bring forward new facts, new arguments, and/or reformulate initial arguments relating to the issues in dispute. The respondent further submits that it is entitled to have the applicant’s full case from the outset, so that it knows what it must address in response.
9The respondent also submits that it would be procedurally unfair pursuant to Rule 3.1(a) of the Common Rules of Practice and Procedure (“Common Rules”) for the Tribunal to consider the applicant’s written reply submissions as the respondent does not have the right of further reply. Rule 3.1(a) of the Common Rules sets out that the Rules will be liberally interpreted and applied and may be waived, varied, or applied at the request of a party to facilitate a fair, open, and accessible process and to allow effective participation by all parties, whether they are self-represented or have a representative. I find that, because the first notice of case conference in this matter was issued after August 21, 2023, the Licence Appeal Tribunal Rules, 2023 (“New Rules”) apply. In any event, Rule 3.1 of the New Rules essentially mirrors Rule 3.1 in the Common Rules; however, the respondent did not explain how Rule 3.1 applies to the situation in this case since the New Rules do not address the procedures as they relate to the right of further reply.
10The respondent refers to several Tribunal decisions in support of its submissions: see E.M. v. Aviva Insurance Company, 2020 CanLII 12741 (ON LAT), Garvey v. Economical Insurance Company, 2023 CanLII 26960 (ON LAT), AJ v. Aviva General Insurance, 2020 CanLII 72500 (ON LAT), and Spence v. Aviva General Insurance, 2023 CanLII 84381 (ON LAT).
11In response, the applicant submits that all information in his reply submissions was contained in the application, in the supporting material with the application, in the reply to the Response to an Application, in the case conference submissions and in his initial submissions.
12I have reviewed the Tribunal decisions that were cited by the respondent. I am not bound by other decisions of the Tribunal. I also note that in all these cases both parties were represented by counsel or a legal representative.
13In this case, I have considered that the applicant is self-represented. In my view, the applicant’s submissions on the issue of non-compliance with s. 32 of the Schedule are in his reply submissions, and I find that it is important to consider the applicant’s argument, even though he should have made it in his original submissions with specific reference to any evidence attached. Since I also find that there is no prejudice to the respondent that results from the Tribunal’s consideration of the applicant’s reply submissions, I decline to exclude them, and I have considered them in coming to my decision.
ANALYSIS
PRELIMINARY ISSUE:
The applicant is precluded from applying based on his non-compliance with s. 32
14The applicant is precluded from applying to the Tribunal because he did not comply with the timelines set out in s. 32 of the Schedule.
15Section 32(1) of the Schedule requires an insured person to inform an insurer of their intention to claim accident benefits within seven days of the accident, or as soon as practicable after.
16Section 34 states that if the insured person does not comply with that time limit, the insured person may still be entitled to benefits if they have a reasonable explanation for the delay.
17The 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. v. 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.
18Pursuant to section 55(1)1, an insured person shall not apply to the Tribunal if they have not notified the insurer of the circumstances giving rise to a claim for a benefit or have not applied for the benefit within the times set out in the Schedule.
19The respondent points out that the applicant submitted an application (OCF-1) dated August 13, 2019. This is almost one year after the accident. Although the respondent does not directly state that this was the date it was first notified of the applicant’s intention to claim benefits, I note that the applicant did not direct me to evidence that he informed the respondent of his intention to claim accident benefits prior to this time.
20The respondent submits that an Examination Under Oath (“EUO”) was arranged for February 18, 2020, to investigate the loss and the late reporting of the loss. The respondent further submits that the EUO was terminated prematurely by the applicant’s legal representative, and, after several attempts to reschedule, a further EUO was scheduled for May 15, 2020.
21The respondent put into evidence its letter addressed to the applicant dated May 21, 2020, confirming that the applicant did not attend at the EUO, and advising him that he was non-compliant with s. 33(2) of the Schedule, which requires him to submit to an EUO. The letter indicated that the applicant was not entitled to the payment of any benefits until such time as he agreed to attend and complete the EUO. The letter went on to advise the applicant that if he wished to reschedule the EUO, to have his legal representative contact the respondent.
22The respondent submits that the applicant did not agree to complete his EUO until well after he had submitted his application with the Tribunal dated August 13, 2023, five years after the accident. The respondent submits that the applicant is not entitled to any benefits during any period of non-compliance.
23The applicant, who is self-represented, submits that he is willing to participate in EUOs or medical examinations required by the respondent. He further submits that it was his former counsel’s choice to discontinue the EUO and that he never disagreed to complete the EUO, nor did he instruct his former counsel to discontinue the EUO. The applicant also submits that his former counsel discontinued the EUO to protect the applicant’s rights, which were breached by the respondent’s examiner, and that a denial for incomplete or unattended EUOs would be considered reprisal. The applicant does not explain how his rights were breached, nor does he direct me to any evidence to substantiate this.
24The applicant points out that he attended the February 18, 2020 EUO which was discontinued. He further submits that his former counsel did not inform him of the EUO scheduled for May 15, 2020, and that he does not have a record of the notice provided by the respondent.
25In his submissions, the applicant indicated that his retainer with his previous counsel dissolved in 2023.
26I find that the applicant was obligated, pursuant to s. 32(1) of the Schedule, to inform the respondent of his intention to claim accident benefits within seven days of the accident, or as soon as practicable after. The accident occurred on August 18, 2018, and the applicant did not submit an application until August 13, 2019, almost one year later. The applicant did not direct me to evidence that he informed the respondent of his intention to claim accident benefits prior to August 13, 2019.
27Pursuant to s. 34, the applicant may still be entitled to benefits if he had a reasonable explanation for the delay.
28I note that the respondent scheduled EUOs in part to investigate the applicant’s late reporting. I have considered the applicant’s submissions in relation to his non completion of the EUO scheduled for February 18, 2020, and his nonattendance at the EUO scheduled for May 15, 2020. I note that the applicant does not address why he did not respond to the respondent’s letter dated May 21, 2020, or why he did not attempt to reschedule the EUO prior to 2023.
29More importantly, the applicant does not provide any information with respect to the reasons for the delay in notifying the respondent of his intention to seek accident benefits. The onus rests with the applicant to establish a reasonable explanation for the delay. Since the applicant does not provide any explanation, an analysis of whether it is “reasonable” pursuant to Horvath cannot be made. Without any specific submissions or evidence on this point by the applicant, I find that he has not established on a balance of probabilities that he had a reasonable explanation for the delay.
30Section 55(1)1 of the Schedule is clear: an insured person shall not apply to the Tribunal if they have not notified the insurer of the circumstances giving rise to a claim for a benefit or have not applied for the benefit within the times set out in the Schedule (emphasis added). Since I have found that the applicant did not comply with the timelines set out in s. 32(1), pursuant to s. 55(1)1, the applicant is precluded from applying to the Tribunal.
31As I have found that the applicant is barred from proceeding with his application, I do not need to consider the substantive issues in dispute.
ORDER
32For the above reasons, I find:
i. The applicant is precluded from proceeding with his application pursuant to s. 55(1) of the Schedule because he did not comply with the timelines set out in s. 32.
ii. The application is dismissed.
Released: June 19, 2025
Laura Goulet
Adjudicator