Volume. 8 Issue. 39 – November 13, 2024
The Tribunal considers a matter wherein the Applicant failed to advise the insurer as to the intent to make an AB application until six months post MVA. It seems that the insurer’s failure to clarify an apparent misunderstanding with respect to rating played a role in the ultimate decision.
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Applicant’s Explanation for Delayed Application Found Reasonable
Business Practice or Legal Matter? – Injured in a June 2022 MVA, the Applicant Mathichandr, in 23-015718 v Dominion, did not submit an OCF-1 Application for AB until December 14, 2022. Dominion took the position that Mathichandr failed to give notice of her intention to apply for benefits and submit a completed and signed application for benefits within the time limits as set out in s. 32 of the Schedule. Further, that she failed to provide a reasonable explanation for the delay in notifying the respondent pursuant to s. 34. Accordingly, Dominion sought an order barring the Mathichandr’s application to the Tribunal pursuant to paragraph 1 of s. 55(1).
The Tribunal agreed with Dominion that Mathichandr failed to establish, on a balance of probabilities, that she notified Dominion of her intention to apply for accident benefits within seven days after the circumstances arose that gave rise to her entitlement to accident benefits, or as soon as practicable after that day. The Tribunal noted that on July 25, 2022, Mathichandr’s husband had a phone call with an adjuster, and he reported that no one sustained injuries in the accident. There was no evidence of any further related communication with the respondent until December 14, 2022, when the completed OCF-1 form was submitted.
Reference was made to a log note dated July 25, 2022, that indicates “insured said he cannot put the claim in as his rates will go up. The applicant’s husband and the adjuster disagreed on who was at fault in the accident, and he described the damage to the vehicles. He advised the adjuster that there were no injuries. There is nothing in the log notes regarding benefits under the Schedule. It appears that the topic of the phone call was primarily about fault and property damage. I accordingly am not persuaded that the applicant or her husband expressed an intention to apply for benefits during the call on July 25, 2022.”
Mathichandr’s husband “swore an affidavit on May 23, 2024, which states that he answered the adjuster’s questions based on his very limited ability to understand and speak English.” While accepting that the there way have been some difficulty in the ability to understand and speak English, there was however “no evidence before me that the applicant advised the adjuster of a language barrier, or that he requested a Tamil interpreter for the phone call.” The Tribunal found that “On a balance of probabilities, I find it more likely that the applicant’s husband accurately communicated his belief that no one was injured in the accident during the phone call with the adjuster, and any language barrier did not have an impact on his communication of that piece of information.” Accordingly, “there is no compelling evidence that it was not practicable to notify the insurer until December 14, 2022; the applicant had an opportunity to speak with the adjuster on July 25, 2022, and had the ability to notify the insurer then…”.
Despite the foregoing, the Tribunal was satisfied “on a balance of probabilities that the applicant’s explanation for the delayed initiation of her claim is reasonable.” After receiving the OCF-1, the respondent requested an explanation for the delay. On March 3, 2023, the applicant advised the following: “[she] was informed and believed that her spouse’s auto insurance policy would be affected if she were to claim for accident benefits through his insurance policy.”
The Tribunal accepted this explanation “as credible and worthy of belief. The applicant’s husband raised the issue of his rates going up in his conversation with the adjuster on July 25, 2022. There is no indication within the log note that this concern was addressed by the adjuster. I accept that this was something that they were concerned might happen if they made a claim.” The Tribunal did not agree with Dominion that “the applicant’s assumption that making a claim would affect her husband’s policy is the same as being ignorant of the law. Whether the policy would be affected or whether her husband’s rate would go up is not a legal question. It is a question with respect to how insurers operate their businesses.”
Acknowledging there being some prejudice to Dominion, same was found not to outweigh the prejudice to Mathichandr if she faced a complete bar to accident benefits. Concluding, her not being able to access benefits to support her recovery from any injuries sustained would have a greater impact on her than on Dominion being forced to accept a claim that was delayed by approximately 6 months. Accordingly, Mathichandr may proceed with her claim for benefits because she provided a reasonable explanation for her delayed submission of an OCF-1.
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