Category: Late Application

Adams v. Aviva Insurance Company (2024 ONSC 715)

The claimant appealed the Tribunal’s decision that her late application barred her claim for accident benefits. The accident was on August 28, 2018. The claimant notified the insurer of the accident on June 13, 2019. The Tribunal held that the claimant did not have a reasonable excuse for the delay, and dismissed the application. The Divisional Court allowed the appeal and directed the matter to a new adjudicator. The Court held that the Tribunal erred in not considering the interplay between section 32(10), section 34, and section 55.

Nichols v. Gore Mutual Insurance Company (21-008322)

The claimant sought reconsideration of the Tribunal’s decision that the late OCF-1 barred the application. The Tribunal found that the insurer had not provided the application package, yet found that section 32 applied. Adjudicator Kaur granted the reconsideration, holding that the 30 day deadline to submit the OCF-1 did not start running because the claimant did not receive the application package from the insurer.

Younes v. Liberty Mutual Insurance Company (20-006050)

This is a preliminary decision regarding late notice to the insurer. The claimant applied for Accident Benefits 20 years after the accident. In addition, the claimant’s insurance expired before the accident. Before October 1, 2003, S. 32(1) of the SABS provided that the insured must advise the insurer of an intention to claim benefits within 30 days of the loss date. The claimant did not notify the insurer according to S. 32(1)(a). As well the claimant was found to have failed to submit the OCF-1 within 30 days. The claimant did not provide a reasonable explanation for the delay. The claimant was barred from proceeding with LAT application.

Adams v. Aviva Insurance Company (22-002323/AABS)

This is a preliminary decision regarding late notice to the insurer. The claimant applied for accident benefits one year after the accident. The claimant’s explanation for the delay was that she had retained counsel after the accident and did not know the process for claiming benefits. The Adjudicator found that reliance on the solicitor was not a reasonable excuse for the claimant’s delay. The claimant’s LAT application was dismissed.

Adjetey v. Economical Insurance (22-000712)

This is a preliminary decision regarding late notice to the insurer. The claimant applied for accident benefits two years after the accident. Section 32(1) of the SABS provides that the insured must give notice of the intention to claim benefits within 7 days of the loss date. The claimant conceded that they were two years late but argued that they had a reasonable explanation under s. 34 of the SABS. The claimant explained that since their impairment stemmed from two accidents, and as time progressed they learned that their impairment was caused by the subject accident. The claimant did not provide any substantive evidence for their impairment. The insurer was not required to send an OCF-1 as it did not know about the accident. The Adjudicator found that the claimant failed to provide a reasonable explanation for failure to comply with timelines under the SABS. The LAT application was dismissed.

Katsiashvili v. Economical Mutual Insurance (21-015596)

The insurer argued that the claimant was not involved in a legitimate accident, pointing to inconsistencies is the material facts leading up to the accident, the description of the accident, and the injuries sustained. Adjudicator Kaur rejected the insurer’s position, holding that the inconsistencies were minor, or were immaterial, or were not in fact inconsistencies when considered as a whole. The insurer also argued that the claimant’s five month delay in applying for benefits barred the claim. Adjudicator Kaur dismissed the insurer’s arguments as the insurer refused to produce its log notes detailing the interactions with the claimant. The claimant argued that the insurer refused to provide the necessary forms; the insurer did not produce evidence to the contrary.

Thompson v. Aviva Insurance Company (20-005734)

The claimant’s spouse was involved in an accident in 2015. In 2019, the claimant applied for accident benefits, including IRBs. The insurer denied the claim on the grounds that the application was submitted late. The claimant applied to the LAT seeking entitlement to IRBs, and two treatment plans related to psychological treatment. Adjudicator Norris granted the claimant entitlement to IRBs for an eight month period between the submission of her application and the insurer’s denial, which was compelled by section 36. The remainder of the claim for IRBs was denied on the basis that the claimant failed to apply for IRBs within 104 weeks of the accident. Because the claimant applied almost four years after the accident, she could not prove entitlement to pre-104 week IRBs, and could therefore not claim post-104 week IRBs.

Basuric v. Dominion of Canada General Insurance Company (2022 ONSC 6148)

The claimant appealed the Tribunal’s decision that her application for accident benefits was submitted late without reasonable excuse, and that she was barred from seeking accident benefits. The Court dismissed the appeal, holding that the appeal was on a point of mixed fact and law, and as such was not subject to appeal. The Court also held that the claimant sought to raise new arguments on appeal, which was improper.

Valentine v AIG Insurance (20-008673)

A preliminary issue hearing was held to determine whether the claimant’s application for NEBs was statute-barred. The claimant was involved in a motor vehicle accident on December 5, 2017, and submitted an OCF-3 dated June 14, 2019, indicating that she did not suffer a complete inability to carry on a normal life. The insurer subsequently advised the claimant that she would not be entitled to an NEB benefit. The claimant submitted a second OCF-3, almost three years later indicating that she now suffered a substantial inability to carry on a normal life. The insurer argued that the claimant had failed to properly apply for NEBs as she did not submit a complete OCF-3 within 104 weeks of the accident. Adjudicator Grant agreed with the insurer, outlining that section 36(3) of the SABS provides that the entitlement period for the NEB commences once a completed OCF-3 is received. As the claimant failed to submit an OCF-3 which supported an entitlement to the NEB benefit within the prescribed time her claim could not proceed.

Katsaros v TD Insurance Meloche Monnex (20-010657)

A preliminary issue hearing was held to determine whether the claimant’s application for IRBs was statute-barred per the limitation period. The claimant was involved in a motor vehicle accident on October 21, 2016 and was able to return to work within a week. Almost a year later, the claimant stopped working and began receiving short-term disability benefits from his employer. Two years later, the claimant submitted another OCF-3 indicating that he now suffered a substantial inability to carry out the essential tasks of his pre-accident employment. The insurer argued that the claimant failed to properly apply for IRBs as he did not submit an OCF-3 establishing a substantial inability within 104 weeks of the accident as required by the SABS. Vice-Chair McGee disagreed with the insurer, noting that the claimant had submitted an OCF-3 within the prescribed time. The requirement is for a completed OCF-3 to be filed. It is not necessary for the form to positively indicate that the claimant has a substantial inability, submission of the form itself will allow the window to be left open to a future income replacement benefit claim.