Licence Appeal Tribunal File Number: 23-002442/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:
Ashur Hedo
Applicant
and
The Dominion of Canada General Insurance Company (Travelers)
Respondent
DECISION
ADJUDICATOR: Rachel Levitsky
APPEARANCES:
For the Applicant: Thomas Zwiebel, Counsel
For the Respondent: Jason Hepburn, Counsel
HEARD: By way of written submissions
OVERVIEW
1Ashur Hedo, the applicant, was involved in an automobile accident on January 3, 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, The Dominion of Canada General Insurance Company (Travelers), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The preliminary issue in dispute is:
i. Is the applicant barred from applying to the Tribunal pursuant to paragraph 1 of section 55(1) of the Schedule because he failed to submit an application for benefits within the time prescribed?
3I note that, although the preliminary issue listed in the Case Conference Report and Order of October 19, 2023 (“CCRO”), was whether the applicant failed to notify the respondent of the circumstances giving rise to a claim for benefits within seven days, that does not appear to be the issue in dispute based on the parties’ submissions or the facts before me. However, the body of the CCRO indicates that the application shall proceed to a hearing for a determination of the issue I have listed above, and that is the issue the parties have made their submissions on.
RESULT
4The applicant is barred from applying to the Tribunal pursuant to s. 55(1) of the Schedule.
5As there are no substantive issues in dispute, the Tribunal file shall be closed.
PROCEDURAL ISSUE
6The respondent submits that a letter from the applicant’s counsel to the respondent dated May 3, 2022, and any references to that letter are inadmissible due to settlement privilege and should be excluded from the Tribunal’s record. The respondent also requests that any references to without prejudice settlement discussions in the applicant’s submissions be excluded.
7Section 15(2)(a) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, expressly prohibits the Tribunal from admitting any evidence that is privileged. The Court of Appeal in Re Hollinger Inc., 2011 ONCA 579 (“Hollinger”), outlined the test for whether communications are settlement privileged. There must be a litigious dispute, the communications must have been made with the express or implied intent that they not be disclosed, and the purpose of the communication must have been an attempt to effect a settlement. The Court in Hollinger also states that there is a strong public interest in the settlement of disputes and the avoidance of litigation, and unless parties have an assurance that efforts to negotiate a resolution will not be used against them in litigation, they will be reluctant to engage in the settlement process in the first place. Although the respondent did not refer me to this case, I am bound by it.
8At the time the applicant was involved in the accident, he was in the process of settlement negotiations with the respondent for claims stemming from a previous accident. According to the parties’ submissions, the settlement was finalized on March 4, 2022. The letter in question was provided two months later.
9I find that the purpose of the letter itself was not an attempt to effect a settlement. The letter does not mention the settlement of the claim arising from the accident of January 3, 2022. It vaguely references settlement discussions relating to a matter completely unrelated to the one before me, for which a settlement had already occurred. The purpose of the letter was to explain that the settlement negotiations for the first accident affected the timing of the submission of the OCF-1 for the second accident, and why the claim for the second accident should not be denied.
10I also find that the references in the letter to the settlement discussions were vague such that I have very little insight into the details of the settlement discussions. There is also no information in the letter as to offers made or accepted. I find that as I can discern no pertinent details of the negotiations, the references to the settlement communications in this letter do not attract settlement privilege. To refuse to accept the vague references to settlement in this letter would, in my view, go beyond the purview of the public policy goal of settlement privilege and would inappropriately muzzle the applicant.
11I accordingly find that settlement privilege does not attach to the letter of May 3, 2022, and I decline to exclude it or any references to it from the hearing.
12However, at one point in the applicant’s submissions, he included further details of settlement negotiations which went beyond the information in the letter, and I find that settlement privilege attaches to that communication. I have accordingly excluded the last sentence in the second to last paragraph on the first page (the applicant’s submissions did not include page or paragraph numbers). Otherwise, any other references to settlement negotiations in the applicant’s submissions were vague and did not contain details, so I have not excluded any other part of the applicant’s submissions from this hearing.
ANALYSIS
13The applicant advised the respondent that he was involved in an accident that took place on January 3, 2022. The applicant was subsequently provided with a letter from the respondent dated January 11, 2022, advising him that he had to submit the completed OCF-1 form within 30 days of receiving the letter. On February 17, 2022, the respondent emailed the applicant and again requested the completed OCF-1 if he was planning to attend treatment. The applicant was also sent a letter dated March 2, 2022, indicating that the respondent had still not received his completed OCF-1. The respondent also requested a written explanation for the delay of the submission of the application.
14On April 16, 2022, the applicant’s counsel faxed a signed OCF-1 to the respondent. The respondent advised the applicant in a letter dated April 29, 2022, that he was not entitled to accident benefits because he failed to provide the completed OCF-1 within 30 days of receiving it and failed to provide a reasonable explanation for the delay.
15On May 3, 2022, the applicant’s counsel provided an explanation for the delay. He stated: “I believe that [the applicant] wanted a conclusion to his first accident benefit file, which settled with you in full light of the second accident”. He invited the respondent to review their correspondence where he noted that it would be of great cost reduction to the respondent to delineate which injuries were from each accident. He also indicated that as they were trying to settle the first matter, they did not want the new accident to complicate this process logistically as information would overlap.
16The respondent wrote to the applicant on June 14, 2022, and advised that his explanation for the delay was not reasonable, and that the three-month delay in providing the OCF-1 prejudiced its ability to understand, identify, and assess his injuries or impairments.
17Section 32(5) of the Schedule 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.
18The 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 (“K.H.”). The guiding principles are summarized as follows:
a. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.
b. The onus is on the insured person to establish a “reasonable explanation.”
c. Ignorance of the law alone is not a “reasonable explanation”.
d. 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.
e. The lack of prejudice to the insurer does not make an explanation automatically reasonable.
f. 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.
19The applicant has not explained how delaying the submission of the OCF-1 would have assisted in delineating the injuries sustained from each accident. The applicant’s injuries from each accident were not affected by the contents of the OCF-1. The applicant does not even mention any injuries in the OCF-1. I accordingly do not find this explanation to be reasonable.
20Additionally, I find that the explanation that the OCF-1 would have impacted the settlement process to be unreasonable. I do not accept that submitting the OCF-1 would have complicated the settlement process logistically due to overlapping information. I have not been provided with a copy of the OCF-1 or any evidence of the information from the first accident, but the applicant admits in his submissions that “all of the information contained on the new OCF-1 was the same as the first one, except for the date of loss and the circumstances of the accident”. The applicant has not explained what overlapping information in the OCF-1s would have complicated the settlement process. Given the sparsity of the information contained in the OCF-1 before me and the fact that the respondent already knew the applicant was involved in a second accident, I am not convinced that the form itself would have actually complicated the settlement process.
21Further, the applicant has not explained why he waited until April 16, 2022, to fax his completed OCF-1 to the respondent. This was more than 30 days after March 4, 2022, the date he submits he settled the claim for his previous accident. I find that this lessens the credibility of the applicant’s explanation. Presumably if the barrier to the submission of the OCF-1 was the settlement, once that barrier was no longer in place the applicant should have had no reason to delay the submission of his OCF-1.
22Much of the applicant’s submissions centred on prejudice and unfairness. I am mindful that a bar on proceedings could theoretically have an impact on the applicant, however there is little evidence before me of the extent of this impact. Aside from an OCF-3 which indicates that he had neck, shoulder, and lower back pain, there is no evidence that the applicant sought or attended treatment for his injuries, the severity of his injuries, or what benefits he would be claiming as a result of this accident.
23I find that it would not be appropriate based on the information before me to relieve against the consequences of the failure to comply with the time limit. In my view, in this case the lack of a reasonable explanation supersedes the theoretical impact a bar on proceedings could have on the applicant.
24I find that as the applicant did not comply with s. 32(5), he is barred from applying to the Tribunal pursuant to s. 55(1) of the Schedule.
ORDER
25The applicant is barred from applying to the Tribunal pursuant to s. 55(1) of the Schedule.
26As there are no substantive issues in dispute, the Tribunal file shall be closed.
Released: February 4, 2025
Rachel Levitsky
Adjudicator