Licence Appeal Tribunal File Number: 24-011958/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:

M.G.

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Tami Cogan

APPEARANCES:

For the Applicant: Aron Zaltz, Counsel

For the Respondent: Sabina Arulampalam, Counsel

Hearing Reporter: Kim Terryberry

HEARD by Videoconference: June 23, 2024

OVERVIEW

1M.G., the applicant, was involved in an automobile accident on October 15, 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, Unifund Assurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2Is 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?

RESULT

3The applicant’s explanation for failing to apply for accident benefits within the timelines prescribed by the Schedule is unreasonable. Her application is barred from proceeding under s. 55(1)1 of the Schedule and is accordingly dismissed.

PROCEDURAL ISSUES

OCF-23 not an issue in dispute

4At the onset of the hearing the applicant withdrew the substantive issue as listed in the Case Conference Report and Order, of whether the applicant is entitled to $1,800.00 for physiotherapy services, proposed by Northern Chiropractic and Physiotherapy Management Services, in an OCF-23 dated July 19, 2024. The parties agreed payment is due in accordance with the Schedule if it is determined that the applicant is entitled to accident benefits under the Schedule. Therefore, the Tribunal need not make a determination on the issue.

Motion for an Emergency Summons

5At the onset of the hearing, the respondent brought a motion seeking an emergency summons to be issued for Dr. Dan Shlepakov, Chiropractor. The witness was listed on the applicant’s final witness list and the respondent intended to cross-examine the witness. The applicant informed the respondent a few days before the hearing that the witness will not be attending. The respondent was unable to obtain a summons through normal procedure with less than 10 days before the hearing. In the alternative to a summons, the respondent seeks that an adverse inference be drawn against the applicant due to the witness’s non-attendance.

6The applicant submits that a summons had been obtained and it was served on the administrator at the clinic where the witness was working at the time services were rendered. It is the applicant’s understanding that the witness no longer works there, and the College of Chiropractors of Ontario’s website lists the witness employed at a Scarborough clinic that is no longer in business. The applicant did not lead evidence of an affidavit of service for the summons.

7I find that an adverse inference is appropriate because the respondent was led to believe the witness would be in attendance and therefore did not take action to secure his attendance. I have not been persuaded that the applicant made reasonable efforts to serve the witness with a summons. The parties may make further submissions at the close of the hearing.

Motion for Anonymization of Tribunal Decision

8At the onset of the hearing, the applicant sought an order to have the Tribunal’s decision anonymized to protect the privacy of the applicant on the grounds that the testimony will contain intimate personal details.

9The respondent did not take a position on this request.

10The open court principle applies to administrative tribunals, whose proceedings and adjudicative records are presumptively open to the public. Normally, the Tribunal’s decisions include the full names of the parties to the proceeding. Public access to tribunal proceedings and the adjudicative record is protected by s. 2(b) of the Charter of Rights and Freedoms. Limitations on the open courts principle may take the form of anonymization of the decision, a publication ban, sealing all or part of the adjudicative record, or holding a hearing behind closed doors. In the case of Sherman Estate v Donovan, 2021 SCC 25, the Supreme Court of Canada held that a person seeking to limit the open courts principle must establish the following:

i. Court openness poses a serious risk to an important public interest;

ii. The order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk;

iii. As a matter of proportionality, the benefits of the order outweigh its negative effects.

11Further, s. 2(2) of the Tribunal Adjudicative Records Act, 2019 (“TARA”), the Tribunal may order that all or part of an adjudicative record be treated as confidential and not disclosed to the public if the Tribunal determines that:

i. matters involving public security may be disclosed; or

ii. intimate financial or personal matters or other matters contained in the record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public.

12Rule 13.1 of the Licence Appeal Tribunal Rules is consistent with TARA and permits the Tribunal to restrict public access to the adjudicative record on the same grounds.

13The Supreme Court recognized privacy as an important public interest. I find that the public disclosure of the applicant’s identity does pose a serious risk to their privacy relating to their medical and mental health conditions.

14The order sought is not for a publication ban or the sealing of the Tribunal’s decision. The order sought is for the order to be anonymized through the use of initials, allowing the decision and its reasons to be public. I find this is the most reasonable measure to protect the applicant’s privacy.

15I find the negative effect of anonymizing the decision is minimal because the decision and the reasons for the decision remain available to the public, thus the public can understand the basis of the decision without intruding upon the health privacy of the applicant. I find that proportionally, the benefit of protecting the applicant’s privacy and professional reputation outweighs the negative effects of the public not knowing the applicant’s identity.

16The Tribunal’s decision will be anonymized by using the applicant’s initials as the only identifier.

Section 10 Award Claim Withdrawn

17During closing submissions, the applicant advised the substantive issue of the s. 10 award claim would not be pursued, and it was withdrawn.

ANALYSIS

The applicant is barred from proceeding with her claim for benefits as she failed to submit the application for benefits (OCF-1) within the time prescribed in the Schedule, without reasonable excuse.

18Pursuant to section 32(5) of the Schedule, the applicant must submit a completed and signed application for benefits to the respondent 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.

20There is no dispute that the applicant reported the accident to the respondent via telephone on October 18, 2022, three days after the accident. There is no dispute that the respondent sent the applicant the application package for Accident Benefits on October 18, 2022, and that it specified the deadline for submission and consequences of not doing so. Further, there is no dispute that the applicant received the application package shortly thereafter. There is also no dispute that the OCF-1 was received by the respondent on May 31, 2024.

21The applicant concedes that her OCF-1 was submitted to the respondent late and that it is her onus to provide a reasonable excuse. She submits that she has a credible and reasonable excuse, namely the car accident triggered past traumatic events in her life and led to her accident-related symptoms being intensified and an inability to function. The applicant submits that when she received the application package, she did not read the entire letter and was unaware of the timeline to submit the OCF-1 as she was overwhelmed and did not understand it. She further submits that her past traumas left her vulnerable and the “thin skull” principle applies. Due to her past traumas, she was mentally incapable of taking the necessary actions to apply for accident benefits. The application for accident benefits was initiated at the prompting of her counsel, as the applicant, due to past traumas, holds a core belief that she is unworthy of pursuing her rights. This belief created a significant barrier to her doing so independently.

22The applicant further submits that during the 19 months between the accident and the OCF-1 being submitted, the applicant was focused on providing for her disabled adult son and her caregiving responsibilities. Also, the applicant urges the Tribunal to use the highest level of empathy and its discretion to extend the 30-day timeline under s. 34 of the Schedule. She submits that because the Schedule is consumer protection legislation, the applicant should be granted protection from forfeiture.

23The decision of the Catherine Horvath v. Allstate Insurance Company of Canada, 2003 ONFSCDRS 92 has been routinely followed by this Tribunal in similar disputes over accident benefits. Horvath sets out a list of six factors that may be considered in deciding whether an explanation for delay is “reasonable” under s. 34 of the Schedule:

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 a “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.

24I find that the applicant’s excuse is not credible for the following reasons.

25The applicant testified that she contacted the respondent three days after the accident. The adjuster’s log notes support that the adjuster referred the applicant to Northern Chiropractic Clinic and advised her that the clinic will call her to arrange an appointment. It is not clear to me if the applicant was informed that the clinic would assist her with the completion of the accident benefits application. The records of the Northern Chiropractic Clinic support that the clinic did contact the applicant on October 18, 2022, and scheduled an appointment for October 19, 2022. This appointment was cancelled by the clinic and re-scheduled for November 3, 2022. This appointment was cancelled by the applicant and re-scheduled for November 4, 2022, which was also cancelled but not re-scheduled. The applicant testified that if she cancelled the appointment, it was for financial reasons. She also testified that she decided “to just suffer through it”. I find that although the applicant had access to a resource that could assist her both physically as well as with the accident benefits application, she may not have understood the value of this resource.

26The applicant testified that when she received the accident benefits application package, with the OCF-1, she did not understand the respondent’s letter, she felt overwhelmed and did not read the entire letter. The applicant also testified that she held onto the OCF-1 for 19 months, which I find supports that the applicant recognized the document was important. Further, she testified that when she received and read the letter, she did not think she could get an appointment with [a doctor], in time to submit the form. I find this supports that she was aware that there was a deadline attached to the submission of the form. I find the OHIP records support that the applicant attended her family physician on November 9, 2022, within three weeks of receiving the application package. The applicant also attended her family physician on November 23, 2022, December 6, 2022, January 19, 2023, March 2, 2023, May 2, 2023, July 10, 2023, October 10, 2023, February 1, 2024, March 4, 2024, and May 2, 2024. I find that during any of these appointments the applicant had the opportunity to present the OCF-1 form for [a doctor] for her assistance and completion. The applicant did not testify as to why she did not present the OCF-1 to [a doctor].

27The applicant testified that when she saw [a doctor] after the accident, the doctor saw that she was in distress and directed her to call the Canadian Mental Health Association (“CMHA”). On November 15, 2022, the applicant made a self-referral to CMHA and subsequently attended six counselling sessions between then and March 2023. Ms. Kim Smith, Social Work Counsellor, testified that the counselling is directed by the client and that the applicant requested resources for Cognitive Behavioural Therapy (“CBT”). I note that the CMHA counselling records do not refer to the accident and this was confirmed by Ms. Smith during her testimony. The applicant testified that out of courtesy she always gave notice to cancel scheduled appointments. The testimony of the applicant, as well as Ms. Smith and the CMHA records support that the applicant discharged herself from CMHA early, and although she had access, she did not re-engage their services. I find the evidence supports that the applicant demonstrated awareness and capability to access assistance and resources, which I find is inconsistent with her submission that she was mentally incapable of taking the necessary actions to apply for accident benefits.

28The applicant testified that due to financial stress she sought assistance from an acquaintance to assist her with the process of selling her home. Further she testified that she sought assistance from a friend to apply for Ontario Works (“OW”) in February 2023 as well as Ontario Disability Support Program benefits (“ODSP”). The application for OW was completed on the computer and required her to provide income tax records. The applicant also testified that her case worker from OW referred her to a legal clinic for assistance in disputing the denial of ODSP. Subsequently, she engaged with the legal clinic and successfully appealed a denial of her ODSP. In November 2023, she received a letter from Employment Insurance (“EI”) regarding an overpayment and she owed $7,740.00. The applicant testified that she had help with the process to appeal the EI overpayment; however, she was evasive about who assisted her and denied she had help from the legal clinic. The applicant also testified that she responded to an advertisement on Facebook and sought legal assistance to pursue legal action in relation to past traumatic events. I find this engagement with government support programs and seeking legal assistance demonstrates the applicant knew when and how to ask for assistance and was capable of asking for assistance with the accident benefits application package much earlier than she did.

29The respondent submits that the applicant also advocated for her own health. The OHIP summary demonstrates the applicant had nineteen medical appointments in the 19-months between the accident and when she submitted the OCF-1. The applicant requested to be sent for a mammogram in November 2022. In March 2023, the applicant attended the Rapid Access Centre for low back pain. She requested to be sent for a bone density test, a hearing test due to ringing in her ears, a CT scan for vertigo, a sleep study for snoring, and to Northern Chiropractic for hip and knee issues. The applicant also self-initiated a 3-month membership for use of the whirlpool at the Water Tower Inn. I agree with the respondent that the medical records of [a doctor] support the applicant advocated for herself after the accident, sought treatment as needed, and was capable of asking for assistance to complete the OCF-1 and submit it to the respondent in a timely manner.

30I do not accept the applicant’s submission that her PTSD was triggered by the accident to a point that she was unable to function and was mentally incapable of taking the necessary actions to apply for accident benefits. I find the applicant’s excuse is not credible because the evidence strongly supports that the applicant was capable of seeking assistance, advocating for her own wellbeing, and accessing resources for assistance. I find the applicant has demonstrated the ability to initiate pursuit and subsequently, successfully appeal several government funding programs, which is not consistent with someone unable to function and mentally incapable of taking necessary actions to pursue her rights. Therefore, I find the applicant’s excuse is not credible.

31Having found the applicant’s excuse is not credible, I need not consider if the excuse is reasonable.

32I find the applicant has not met her burden on the balance of probabilities to prove that she has a reasonable excuse for not applying for accident benefits within the Schedule’s prescribed timelines.

SUBSTANTIVE ISSUES IN DISPUTE

33Given my finding that the applicant is barred from proceeding with her application for accident benefits, it is not necessary to address the substantive issues in dispute as listed in the Case Conference Report and Order.

CONCLUSION and ORDER

34The applicant’s explanation for failing to apply for accident benefits within the timelines prescribed by the Schedule is unreasonable. Her application is barred from proceeding under s. 55(1)1 of the Schedule and is accordingly dismissed.