Category: Late Application

The claimant applied to the LAT seeking entitlement to accident benefits. A preliminary issues hearing was held to determine: (1) whether the claimant was disentitled to accident benefits because he did not have a reasonable explanation for failing to comply with the time limit imposed by s. 32(1) of the SABS, and (2) whether the claimant was barred by s. 55(1)1 of the SABS from commencing the LAT application because he had not notified the insurer of the circumstances giving rise to the claim for benefits or he had not submitted an application for benefits within the timelines prescribed by the SABS. The parties agreed that the claimant applied for accident benefits 11 months after the accident. The issue was whether the claimant had a reasonable explanation for the delay and was entitled to apply for benefits pursuant to s. 34 of the SABS. The claimant was driving his uncle’s vehicle at the time of the accident. The uncle notified his insurer of the accident within the prescribed timelines, but the claimant did not notify his own insurer of the accident or claim benefits until 11 months post-accident. The claimant said that he thought it was sufficient for the uncle to notify his insurer, and the claimant was not aware that he had to contact his own insurer to apply for benefits. Applying the six factors from the FSCO decision in Horvath v. Allstate, Adjudicator Paluch found that the claimant’s explanation was credible and worthy of belief, but the claimant did not meet his onus of establishing that the explanation was “reasonable.” In particular, Adjudicator Paluch found that ignorance of the law/the insurance policy is not a reasonable explanation. The claimant was barred from applying to the LAT pursuant to s. 55(1)1 of the SABS.

The insurer raised a preliminary issue, arguing that the claimant’s claim was barred pursuant to section 55 of the SABS because she failed to submit a completed OCF-1 until more than a year and a half after the accident. Both parties agreed that the claimant failed to comply with the time limit set out in the SABS, and the dispute centred on whether the claimant’s explanation for her delay in applying for benefits was a reasonable one. The claimant submitted that her injuries were latent and developed as time passed following the accident. Adjudicator Norris did not accept the claimant’s explanation, as it was contradictory to her answers at the EUO, and would not exempt her from the timelines set out in the SABS in any event. As such, the claimant was barred from applying to the Tribunal pursuant to section 55, and her application was dismissed.

The insurer raised a preliminary issue, arguing that the claimant’s claim was barred pursuant to section 55 of the SABS because she failed to notify the insurer of her intention to apply for accident benefits until over three years after the accident. Both parties agreed that the claimant failed to comply with the time limit set out in the SABS. The dispute centred on whether the claimant’s explanation for her delay in applying for benefits was a reasonable one. Vice Chair McGee found that the claimant’s lack of awareness as to what was covered by her automobile policy was not a reasonable explanation for her delay in seeking benefits. She also did not accept that the claimant’s stress of caring for her catastrophically injured daughter would have accounted for a more than three year delay in inquiring about her own accident benefit coverage, particularly given the high level of functioning demonstrated by the claimant in doing so. Vice Chair further noted that the claimant’s delay had resulted in prejudice to the insurer, as they were unable to conduct contemporaneous assessments and surveillance, and could face hurdles in attempting to gather medical records. As such, the claimant’s application was barred by section 55 and accordingly dismissed.

A preliminary issues hearing was held to determine whether the claimant was barred from proceeding with a LAT application pursuant to s. 55(1) and s. 32(1) of the SABS for failure to notify the insurer of the circumstances giving rise to a claim for a benefit and/or not applying for a benefit within the times prescribed in the SABS. The claimant did not submit an OCF-1 until nearly 17 months after the accident. He submitted that he initially did not find it necessary to contact his insurer or make an application for accident benefits because he felt he was recovering from his accident-related injuries. When he believed his aches and pain post-accident were worsening, he retained a lawyer who submitted the OCF-1. Adjudicator Driesel reviewed the medical record, the motor vehicle accident report, case law on what constitutes a “reasonable explanation”, and the claimant’s examination testimony, and found that the claimant did not have a reasonable explanation for the delay in applying for accident benefits. The claimant was barred from proceeding with the LAT application.

The claimant submitted his application for accident benefits more than two years after the accident. The insurer argued that the application was late and that the claimant did not have a reasonable excuse for the lateness, and that the claim was therefore barred. Adjudicator Chakravarti agreed that the claimant did not comply with the timelines to submit an application and that the claim was barred. She rejected the claimant’s arguments that he was under immense psychological and financial pressure from an abusive relationship, and his argument that he was given the “runaround” by the insurer and that lawyers did not help him make an application. The claimant admitted receiving the insurer’s initial communication with a copy of a blank OCF-1 with instructions on applying for accident benefits. He also admitted speaking with the insurance adjusters in the weeks after the accident. He otherwise did not file any affidavit evidence or provide oral evidence in support of his reasons for applying late. The evidence provided by the insurer showed that the claimant had returned to work one week after the accident, and that he was able to apply for short-term disability benefits and WSIB during the same period he said he was unable to apply for accident benefits. Adjudicator Chakravarti accepted that the insurer would be prejudiced by the delay because it could not obtain contemporaneous medical examinations and records, or otherwise investigate the claim.

The claimant witnessed the aftermath of an accident in October 2016 involving his brother, partner, and three children. He applied for accident benefits two years later. The insurer argued that the claimant’s application was barred as being late without reasonable explanation. Adjudicator Grant agreed with the insurer and dismissed the claim. The claimant argued that he did not know he could apply for accident benefits as a witness to an accident involving family members, and that once he found out he could apply, he did not know how. Adjudicator Grant rejected both arguments. The evidence showed that the claimant knew very early after the accident that he could receive accident benefits and notify the insurer of his intention. In the summer of 2017, the claimant met a personal injury lawyer who explained the accident benefits system and forms to him. The claimant also knew about the availability of accident benefits from dealing with the claims of his family members. Adjudicator Grant found that the claimant had no reasonable explanation for his delay in applying for accident benefits, noting that ignorance of the law was not reasonable. He also held that the claimant’s delay in submitting an application caused prejudice to the insurer because it could not assess the claimant in a timely fashion. Particularly prejudicial was the claimant’s development of psychological impairments from other issues that would be nearly impossible to separate from psychological impairment caused by the accident.