Background
On June 7, 2023, Shane Burton (the applicant), was involved in a motor vehicle accident, after which he was extricated from the vehicle with the jaws of life and later had to be intubated for life saving measures. He ended up in a coma for four days, and suffered from a range of injuries, including two brain bleeds, damage to the C8 and T12 areas of his spine, degloving of his right hand, his lung was punctured and he lost function in his upper left arm.
The applicant complied with 32(1) of the Statutory Accident Benefits Schedule (the SABS) by informing the respondent of his intention to apply for accident benefits within seven days after the circumstances arose that gave rise to the entitlement of benefits. However, his application for benefits via the OCF-1 form was not completed within 30 days, as required by section 32(5) of the SABS. Instead, it was completed almost a year later on June 4, 2024.
Preliminary Issue
The preliminary issue was whether the applicant was barred from proceeding with his claim for accident benefits because he failed to submit his OCF-1 within the 30-day timeframe prescribed by Section 32(5) of the SABS?
Law
Section 34 of the SABS permits an applicant’s failure to comply with the time limits if they have a reasonable explanation for their delay.
The interpretation of “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada, 2003 ONFSCDRS 92 (Horvath), and was reiterated by the Tribunal in K.H. vs Northbridge, 2019 CanLII 101613 (ON LAT). The guiding principles are summarized as follows:
- An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.
- The onus is on the insured person to establish a “reasonable explanation.”
- Ignorance of the law alone is not a “reasonable explanation.”
- 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.
- The lack of prejudice to the insurer does not make an explanation automatically reasonable.
- 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 within the time limit.
Position of the Parties
The respondent argued that on June 20, 2023, the applicant spoke with the initial claims adjuster who then emailed him the application package including the OCF-1. However, the applicant took a year to return the completed form despite evidence showing communication with the applicant, that he understood the need to submit the OCF-1.
The applicant argued that the respondent didn’t communicate that filling out the OCF-1 was necessary until June 3, 2024. At that time, the applicant asked for the respondent’s assistance but was denied it despite being physically unable to fill out the form.
Analysis
The adjudicators briefly began with the first principle in Horvath, finding there was no dispute about the severity of the applicant’s injuries, and so it was credible and worthy of belief they prevented him from completing and submitting the OCF-1 in a timely manner. They then turned to the requirement that an insured person must establish a “reasonable explanation” for their delay.
June 20, 2023, Email
The adjudicators found that the information relayed to the applicant by email on June 20, 2023, after speaking with the initial adjuster did not suggest any urgency in submitting the OCF-1. Rather, the correspondence indicated that the form was needed before any payments on the claim could be made but there was no mention of time constraints.
Attempts to Reach the Applicant
The respondent argued they attempted to contact the applicant multiple times but were ignored. The log notes showed that the initial claims adjuster spoke to the applicant on June 20, 2023 and then once the file was transferred to a senior claims adjuster, they followed up with the applicant on June 29, June 30, July 4, July 6 and July 10. It was then on July 10 that the applicant responded.
The adjudicators did not believe the respondent’s argument that they tried contacting the applicant multiple times but were ignored. Rather, the respondent had also reached out to Elora Physio on July 7 and July 24, 2023, which corroborated that another party was having difficulty reaching the applicant by telephone. During these calls with Elora Physio, the respondent communicated that they were trying to get a hold of the applicant but not that his benefits were at risk. Also, the log notes showed the messages left to the applicant during this period only expressed that the respondent wanted to discuss, explain or get an update on the status of the claim.
Help From Partner and the Necessity of the OCF-1
During the call on July 10, after the respondent got in touch with the applicant, he conveyed that he didn’t think he would need assistive devices as his wife is a nurse and providing him with help. He further stated that he would work on the OCF-1 when ready to proceed claiming for injuries. The senior adjuster testified she did not communicate to the applicant during this call that there was a deadline for submitting the OCF-1 nor did they confirm whether the applicant had received or was able to access the OCF-1 sent on June 20, 2023.
Log Notes and Need for Assistance When Filling Out the Form
The log notes show the respondent created a letter on May 31, 2024, advising the applicant his file would be closed if he didn’t return the OCF-1 within ten business days. The letter was sent via email on June 3, 2024, which gave the applicant only four business days to respond.
The applicant received the letter the same day and contacted the respondent via phone. During their conversation, the respondent told the applicant the OCF-1 needed to be completed and to provide a reasonable explanation for the delay in pursuing his claim.
The applicant testified that the day after the call, on June 4, 2024, he told the respondent he didn’t have an email containing the application package and requested the respondent to send one. The adjudicators found this corroborated the fact that the applicant never received the original application package on June 20, 2023.
The applicant further testified that he told the respondent he needed help completing the form. However, the adjuster handling the file told the applicant that he must complete the form himself and physically sign it, which would require it to be printed, signed and scanned. The adjuster testified that this is a requirement to demonstrate the applicant’s intent to claim benefits. The respondent offered someone to attend in-person to assist with the forms but they would only provide guidance as the applicant had to fill it out himself.
The respondent, however, could not point to any provision within the SABS barring them from filling out the form on behalf of the applicant or that a digital signature was insufficient.
The adjudicators ultimately found that at no point did the respondent communicate to the applicant that he was in jeopardy of having his benefits denied if he didn’t complete the OCF-1. When considering the personal characteristics and reasonable person standard in Horvath, based on the applicant’s testimony, his brain injuries and other physical trauma, he was unable to initiate claims for himself. In the instance of his property damage claim, this was done by the car rental company and any collateral benefits were initiated by his employer.
The applicant had consequently established a reasonable excuse for his delay in submitting the OCF-1.
Prejudice
The adjudicators lastly turned their attention to the question of balancing prejudice to the insurer versus hardship to the claimant and whether it is equitable to relieve against the consequences of the failure to comply with the time limit. Although the respondent had argued they were unable to conduct any assessments of the applicant due to the delay, the adjudicators found that any prejudice to the respondent was significantly outweighed by the potential hardship of the applicant in light of the life-altering injuries he sustained, should he be denied benefits.
