Licence Appeal Tribunal File Number: 23-013831/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:
Hirondina Botelho
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Faranaz Siganporia, Counsel
For the Respondent:
Sabina Arulampalam, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Hirondina Botelho, the applicant, was involved in an automobile accident on October 11, 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, Unifund Assurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues listed in the Case Conference Report and Order dated May 7, 2024 (“CCRO”) as being 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. Is the applicant entitled to $2,200.00 for physiotherapy services proposed by Canadian Muscle and Joint Pain Clinic Inc. in a treatment plan/OCF-18 dated August 9, 2023?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3Although not listed as an issue in dispute, it is clear from the submissions of the parties that the question of whether the applicant is precluded from applying because she did not comply with the timelines in s. 32(5) of the Schedule is central to this dispute. Considering the Tribunal’s mandate to resolve disputes under the Insurance Act in accordance with the Schedule, the fact that this question is central to the dispute in this case, and that the parties make submissions on this question, I have addressed the issue of compliance with s. 32(5) in my decision as set out below.
RESULT
4The applicant is precluded from applying to the Tribunal because she did not comply with the timelines set out in s. 32(5) of the Schedule.
PROCEDURAL ISSUE
5The respondent submits that the applicant’s written submissions exceed the ten-page limit ordered in the CCRO. Accordingly, the respondent is requesting that the Tribunal strike from the record the portion of submissions that exceed the ordered page limit. In reply, the applicant points out that her written submissions are single spaced. The applicant attached a double-spaced version of her written submissions, demonstrating that the submissions (excluding the style of cause and the contact information of the legal representatives) total ten pages. I find that the applicant’s written submissions do not exceed ten pages and decline to strike any of her submissions from the record.
ANALYSIS
The applicant’s entitlement to benefits
6At the outset, I note as set out above that, although it is not included as an issue in dispute, both parties make submissions with respect to the applicant’s entitlement to benefits having regard to her delay in submitting an Application for Accident Benefits (OCF-1) to the respondent. The respondent takes the position that the applicant is statute-barred from proceeding with her application because she did not comply with s. 32(5) of the Schedule.
7The respondent points out that issue #1 in the application is listed as the respondent’s denial of the accident benefits claim resulting from the delayed application for benefits. The CCRO indicates that the applicant had withdrawn issue #1. On May 22, 2024, the respondent sent an email to the Tribunal indicating that the withdrawal of issue #1 was an error and requesting that it be added as an issue in dispute on the CCRO. On May 27, 2024, the applicant sent an email to the Tribunal indicating that she agreed to add issue #1 to the CCRO as an issue in dispute. On January 2, 2025, the Tribunal advised the parties that the adjudicator determined that an amendment was not required.
8For the reasons set out above, and as the applicant’s entitlement to benefits is contingent on her compliance with s. 32(5) of the Schedule, I will now turn to that question.
The applicant is precluded from applying based on her non-compliance with s. 32(5)
9The applicant is precluded from applying to the Tribunal because she did not comply with the timelines set out in s. 32(5) of the Schedule.
10Section 32(5) requires an insured person to submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms.
11Section 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.
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. 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.
13Pursuant 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.
14The applicant refers to the Adjuster’s Log Notes (“Log Notes”) dated October 14, 2021, indicating that she contacted the respondent to report the accident. The applicant submits that following the accident, she attended to see her family physician, Dr. Tarek Shokr. The applicant says that Dr. Shokr was concerned that one of her breast implants may have ruptured in the accident, among other injuries, and advised her to wait to seek any physical treatment until after he had completed his investigation on the extent of her injuries. Accordingly, the applicant did not seek treatment, based on Dr. Shokr’s advice. The applicant further submits that on January 19, 2023, Dr. Shokr informed her that she could start treatment for her accident-related injuries. The applicant sought treatment in August of 2023 and submitted a treatment plan and an OCF-1, both dated August 9, 2023.
15When the respondent denied treatment because it was investigating the delay in reporting injuries, the applicant provided it with a letter from Dr. Shokr dated August 16, 2023, confirming why he advised her to defer any form of treatment at the time following the accident. The applicant also submitted into evidence a sworn affidavit dated June 3, 2024 from Dr. Shokr confirming the reasons why he advised her to delay seeking treatment.
16The applicant argues that she has a reasonable explanation for not submitting the OCF-1 until August of 2023. The applicant concedes that she was not medically incapable of completing the form. Rather, she believed that she did not need to submit the form until she was seeking treatment. Once her doctor cleared her to start treatment, she then completed and sent in the form.
17The applicant further submits that the respondent did not fulfill its fiduciary duty to the applicant and did not make best efforts to obtain the OCF-1 from her for the following reasons:
i. The respondent only sent one letter on October 14, 2021, containing the accident benefit forms.
ii. The respondent did not try to follow up by letter, email or phone call, to remind the applicant to submit the forms.
iii. The respondent did not make the applicant aware of the potentially draconian consequence of not submitting the OCF-1 within 30 days after receiving the application forms.
18The applicant submits that if the respondent intended to take such an oppressive measure as to deny her coverage to all benefits for the delay in submitting the OCF-1, then it should have made best efforts to attempt to follow up with her.
19The applicant argues that the respondent did not suffer any prejudice due to her delay in submitting the OFC-1 for the following reasons:
i. The applicant made the respondent aware of the accident and the extent of the preliminary injuries in her telephone call with the adjuster on October 14, 2021, and therefore the respondent was able to set aside reserves in a timely fashion.
ii. The applicant is not seeking accident benefits for the period prior to submitting her OCF-1.
iii. The applicant submitted the OCF-1 prior to the two-year mark following the accident.
20The respondent submits that it provided an accident benefits package to the applicant on October 14, 2021, along with a letter, specifically advising her of the statutory requirement to complete the OCF-1 within 30 days of receiving it. The respondent points out that the applicant returned the accident benefits package by email on August 10, 2023, 668 days after the accident.
21The respondent also submits that due to the significant time lapse between the accident in October 2021 and the submission of the OCF-1 in August 2023, it has been highly prejudiced because it was not aware of the applicant’s intention to seek accident benefits and could not assess her for a period of almost two years post-accident. The respondent argues that this delay has prevented it from properly adjusting and investigating the file and obtaining contemporaneous assessments.
22In reply, the applicant refers to the respondent’s letter dated October 14, 2021, which states: “If you intend to present a claim for any of the Accident Benefits outlined in the attached explanation of benefits, the Application for Accident Benefits (OCF-1) must be completed and returned to my attention within 30 days after receiving this package. No Accident Benefits are payable until we are in receipt of your fully completed Application for Accident Benefits (OCF-1).” The applicant argues that the letter makes no mention that there is a “statutory requirement” to complete the OCF-1 within 30 days or that all accident benefits would be denied indefinitely going forward if the OCF-1 is not received within 30 days. The applicant further submits that the second sentence implies that accident benefits are payable after the OCF-1 is submitted, but not before, which is how she understood the letter.
23I find that the respondent’s letter indicating that the OCF-1 “must” be completed and returned within 30 days of receipt, is sufficiently clear. Further, I note that the Log Notes dated October 14, 2021 indicate that the adjuster advised the applicant that accident benefit forms would be sent in the mail and that she has 30 days to return them or the insurer would assume that she no longer wished to claim and would close the file.
24I have considered the applicant’s submissions that the respondent did not fulfill its fiduciary duty to the applicant by not making best efforts to obtain the OCF-1. I find that the Schedule does not impose such an obligation on the respondent. I also find that the respondent complied with its obligation under s. 32(2) by providing the benefits package to the applicant on the same date the applicant reported the accident. Further, I find that it is clear from the reference in the Log Notes from October 14, 2021, that the insurer would not be following up with the applicant after sending the benefits package.
25I find that the applicant’s reliance on Dr. Shakr’s advice to delay treatment is not a reasonable explanation for not completing and submitting the OCF-1. Even if I were to find that the applicant thought that she did not have to complete the OCF-1 until she sought treatment, it is well settled that ignorance of the law alone is not a “reasonable explanation.” Further, I am not satisfied on a balance of probabilities that the reason for the entire delay in completing the OCF-1 is because the applicant’s doctor advised her to defer seeking treatment. I note that Dr. Shakr indicates in his affidavit that he advised the applicant she could commence physical treatment for her accident-related injuries on or around January 19, 2023. The applicant did not seek treatment and complete an OCF-1 until well over six months later, on August 9, 2023.
26Finally, I find that the applicant’s delay in submitting the OCF-1 has resulted in prejudice to the respondent because it has substantially interfered with the respondent’s ability to investigate the claim and to obtain contemporaneous evidence of the applicant’s injuries. The applicant did not make submissions with respect to hardship; therefore, I find that she has not shown that the Tribunal should relieve against the consequences of her non-compliance with the time limit requirement.
27Section 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(5) and did not demonstrate on a balance of probabilities that she had a reasonable explanation for the delay, pursuant to s. 55(1)1, the applicant is precluded from applying to the Tribunal.
28Given that I have found that the applicant is barred from proceeding with her application, I do not need to consider the substantive issues in dispute.
ORDER
29For the above reasons, I find:
i. The applicant is precluded from proceeding with her application pursuant to s. 55(1) of the Schedule because she did not comply with the timelines set out in s. 32(5).
ii. The application is dismissed.
Released: August 27, 2025
__________________________
Laura Goulet
Adjudicator