Trevorrow-Gasher v. Intact Insurance Company, 2025 CanLII 94799

Licence Appeal Tribunal

Citation: Trevorrow-Gasher v. Intact Insurance Company 2025 ONLAT 24-015176/AABS-PI-A

Licence Appeal Tribunal File Number: 24-015176/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:

Annette Trevorrow-Gasher

Applicant

and

Intact Insurance Company

Respondent

AMENDED PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Michael Adamek, Counsel

For the Respondent: Christine McKenna, Counsel

HEARD: By way of written submissions

OVERVIEW

1Annette Trevorrow-Gasher, the applicant, was involved in an automobile accident on December 27, 2023, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided is:

i. Is the applicant 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?

RESULT

[3] The applicant is not barred from proceeding with her application for accident benefits.

3The respondent has not established that the applicant is barred from proceeding with her claim for accident benefits due to a failure to submit her OCF-1 within the time limits prescribed in the Schedule.

ANALYSIS

Law

4Section 32(1) of the Schedule provides that a person who intends to apply for accident benefits shall notify the insurer of their intention no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day.

5Once an insurer receives notice of an applicant’s intention to apply for statutory accident benefits, the insurer must provide the applicant with the appropriate OCF-1 forms, a written explanation of the benefits available, information to assist the person in applying for benefits and information on the election relating to the specified benefits, if applicable (s. 32(2)). Pursuant to section 32(5) of the Schedule, the applicant must then submit a completed and signed application for benefits to the respondent within 30 days after receiving the forms.

6Section 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. The 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:

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.

7Pursuant to section 55(1)1, an insured person may not apply to the Tribunal if they have not notified the insurer of the circumstances giving rise to a benefit or have not applied for the benefit within the times set out in the Schedule.

Background

8The applicant was involved in a motor vehicle accident on December 27, 2023, and advised the respondent of the accident on December 30, 2023. On January 5, 2024 the respondent mailed and emailed an accident benefits package, including an OCF-1, to the applicant. The letter stated that the “claims process will begin if you complete and return this form within 30 days”. On February 17, 2024 the respondent sent a letter via email, following-up on the outstanding OCF-1. The letter referenced s. 32(5) of the Schedule, and requested that the OCF-1 be submitted before March 2, 2024. The respondent stated that if the completed application was not received by that time, the applicant’s file would be closed.

9The applicant did not submit a completed OCF-1 by March 2, 2024. Rather, on April 29, 2024 the applicant’s counsel submitted the completed OCF-1 dated April 24, 2024. By way of letter dated June 6, 2024, the respondent requested additional documentation, and that the applicant attend an Examination Under Oath (“EUO”).

10At the August 27, 2024 EUO the applicant provided her reasons for the delay in submitting her OCF-1. Namely, that she had a concussion and was not supposed to be looking at a screen, that she was in a lot of pain post-accident, and that she was very stressed due to a potential eviction from her building. The applicant testified that she was “overwhelmed” and not well enough to complete the accident benefit forms, so she had to retain a lawyer to help.

Parties’ Positions

11The respondent submits that the applicant failed to submit her completed OCF-1 within 30 days of receiving the application forms, as required by s. 32(5) of the Schedule. It further argues that the applicant’s explanations for the delay are neither credible nor reasonable.

12The respondent disputes that the applicant sustained a concussion in the accident, or that she suffered from brain fog. It further argues that the medical evidence does not establish severe injuries that would have prevented the completion of the OCF-1. With respect to the applicant’s claim of stress due to eviction, the respondent argues that the applicant was first informed of the potential eviction in 2021, and that there was no proposed timeline for the eviction. Finally, the respondent submits the applicant is a “sophisticated” party, who is fluent in English, runs her own business, advocates on behalf of the elderly and a tenant coalition and is familiar with the accident benefits process as she had been in previous motor vehicle accidents.

13The respondent further submits that it has suffered prejudice as a result of the applicant’s delay. It argues that the applicant’s pre-accident medical history is extremely complex, and that she had a surgery in the period between the accident and submission of the OCF-1. As a result, the respondent argues that it was unable to assess the applicant or investigate the accident, leading to difficulty in determining causation with respect to the applicant’s injuries.

14The applicant argues that she has a reasonable explanation for the delay in submitting her OCF-1. She submits that after the accident, she suffered from serious impairments including brain fog and concussion symptoms, as corroborated by her family doctor, Dr. Crampton. Further, her ODSP application from June 28, 2016 illustrates a number of pre-existing health conditions including headaches which affected her ability to concentrate.

15The applicant disputes that simply because she was involved in prior motor vehicle accidents, she must have knowledge of the 30 day time limit. With respect to the respondent’s argument that it would be impossible to differentiate between her accident and non-accident impairments due to the delay, the applicant argues that causation remains a live issue between the parties. The fact that an insured person has a complicated medical history does not mean that an insurer becomes prejudiced in its ability to adjudicate an accident benefits claim.

16Finally, the applicant argues that she only provided her OCF-1 eight weeks after the March 2, 2024 deadline stipulated in the February 17, 2024 letter. Even after receiving the OCF-1, the adjuster waited one month to review it, suggesting that time was not of the essence. The applicant further submits that the respondent did not provide its determination as to whether it would accept the applicant’s OCF-1 until December 12, 2024, nearly eight months after she provided her completed application.

Did the applicant submit her OCF-1 within the 30 day time limit set out in s. 32(5)?

17I find that the applicant did not submit her application within 30 days of receiving the application forms.

18The respondent first sent the applicant an accident benefits package on January 5, 2024. However, when the OCF-1 was not received, the respondent sent a follow-up letter on February 17, 2024 requesting that the OCF-1 be submitted by March 2, 2024. The applicant provided the completed application on April 29, 2024, which is eight weeks after the respondent’s stipulated deadline and outside of the 30 day time limit prescribed by s. 32(5).

The applicant has provided a reasonable explanation for the delay in submitting her OCF-1

19I find the applicant’s claim that she was unable to complete the form due to her post-accident symptoms and stress due to her eviction, is both credible and reasonable.

20Although the respondent argues that the applicant was not formally diagnosed with a concussion post-accident, the clinical notes and records (“CNRs”) of her family physician, Dr. Crampton, state that three days post-accident the applicant reported hitting her head and suffering from mild concussion symptoms. Further, Dr. Crampton provided a Disability Certificate where one of the accident-related injuries was identified as being a concussion. The applicant also told the respondent’s adjuster on February 17, 2024 that she had sustained a concussion.

21At her EUO the applicant testified that due to her concussion, she was limited in looking at screens and reading, and that she was in a lot of pain and discomfort due to the accident. Dr. Crampton’s CNRs corroborate the applicant’s pain complaints post-accident. Soon after the accident the applicant reported pain in her legs, hip, thigh, back, neck, arms and shoulders. X-rays and MRIs were conducted which subsequently revealed that she had a meniscus tear in her knee. In the February 9, 2024 CNR entry Dr. Crampton noted that the applicant had chronic knee and ankle pain post-accident. I note that these accident-related impairments are in addition to the applicant’s pre-existing medical conditions.

22The respondent concedes that the applicant’s pre-accident medical history is “extremely complex”, including chronic pain, multiple surgeries and pre and post-accident opioid pain medication use. The applicant is currently receiving ODSP benefits and in her 2016 ODSP application, it was noted that her frequent headaches affected the applicant’s concentration and ability to function. Her doctor stated in the form that the applicant was “currently completely disabled by her ongoing neurological problems and breast cancer related problem”. I find that these pre-existing impairments, together with the post-accident concussive symptoms and additional pain complaints, would reasonably cause the applicant difficulty in completing her OCF-1 within 30 days.

23I further accept the applicant’s argument that she was under stress due to the fear of eviction. Although the respondent notes that eviction was first raised in 2021 and no timeline had been provided, the CNRs of Dr. Crampton support the applicant’s position. On April 11, 2024 during a social work consult, the applicant reported multiple stressors, including potential eviction and that she was concerned about finding affordable housing. On April 22, 2024 Dr. Crampton provided a doctor’s note, stating that the applicant’s “mental health has deteriorated significantly due to major disruption due to renovation eviction at her place of residence.”

24The applicant explained in her EUO that due to her concussion, being in “a lot of pain” and stress due to the potential eviction, she was not well enough to complete the form, which was why she retained a lawyer. In my view, this explanation is both credible and reasonable. Once retained, the applicant’s counsel immediately reached out to the respondent and once it was determined that an OCF-1 had not been submitted, the applicant’s counsel submitted the completed OCF-1.

25I further do not agree with the respondent that post-accident the applicant was functioning at a “high-level” sufficient enough to complete the OCF-1 within 30 days. The respondent argues that post-accident the applicant ran her own business, advocated on behalf of the elderly and a tenant coalition. However, the applicant testified at the EUO that although pre-accident she had sometimes “consulted” on health and safety, advocated for the elderly and was involved in her tenant coalition, she had to “back off quite a bit” post-accident due to brain fog, pain and stress. I further agree with the applicant that just because she had been involved in a previous motor vehicle accident, this does not necessarily mean that she was aware of the 30 day timeline to submit a completed OCF-1.

26With respect to prejudice to the respondent, I agree with the applicant that the fact that she has a complicated medical history (both pre and post-accident) does not necessarily mean that the respondent is prejudiced in its ability to adjudicate her claim. Although the respondent argues that the applicant had a surgery during the period of delay making it difficult to determine causation, this would be a live issue to be considered at the substantive hearing.

27Further, I note that the Schedule is consumer protection legislation. The Divisional Court in Hussein v. Intact Insurance Company, 2025 ONSC 842, has stated that consumers who have motor vehicle accidents are in a vulnerable position, particularly in the period immediately following the accident. Given the consumer protection mandate of the Schedule, I find that the hardship to the applicant, in not being able to access accident benefits, outweighs the prejudice to the respondent caused by the few months delay in submitting the OCF-1. I find it is reasonable to allow the applicant to proceed with her claim.

CONCLUSION AND ORDER

[28] The applicant may proceed with her accident benefits application.

28The respondent has not established that the applicant is barred from proceeding with her claim for accident benefits due to a failure to submit her OCF-1 within the time limits prescribed in the Schedule.

29Given that there were no substantive issues in dispute and this application has been disposed of at this preliminary issue hearing, the Tribunal’s file is now closed.