Volume. 9 Issue. 4 – January 29, 2025
This week the Tribunal addresses as case wherein both the insurer and the insured apparently faced competing issues with transmitting essential documents via the mail. Read on to understand why the Tribunal felt that the insured had made a more compelling case for having sent their application, despite the insurer contending never having received same.
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Application Lost in the Mail Deemed as Received?
Lost in the Mail – At issue, in 24-001290 v Allstate, was whether the Applicant Jandu, injured in a February 2022 MVA, was barred from proceeding with his claim for benefits, having failed to submit the application for benefits (OCF-1) within the time prescribed by the Schedule. Allstate had sent the OCF-1 to Jandu on multiple occasions, each time however Jandu indicated not having received same. Finally, on July 6, 2022, Jandu left a message for Allstate advising that he had received the forms and needed assistance. Allstate in turn returned the message and explained each form. Jandu submitted that he retained counsel on July 7, 2022, and that the OCF-1 was sent to the respondent via regular mail on July 29, 2022. The OCF-1 enclosed in the letter was also dated July 29, 2022. However, Allstate submits that it did not receive the OCF-1 until June 19, 2024, when counsel for Jandu emailed counsel for Allstate with a copy of the letter of July 29, 2022, and its enclosures.
It was the contention of Jandu that the OCF-1 was submitted to Allstate in the letter dated July 29, 2022. Allstate however countered that it never received this letter and did not receive the OCF-1 until June 19, 2024. Ultimately however, the Tribunal agreed with Jandu that the letter enclosing the OCF-1 was in fact submitted on July 29, 2022. Further, the Tribunal made clear that even if Allstate did not receive the OCF-1, Jandu’s obligation under the Schedule is to submit the OCF-1, not to ensure that Allstate received it. Allstate also argued that there was no proof that the letter was actually sent on July 29, 2022, as Jandu had not provided an email, fax, or proof of postage. This argument however was not found compelling, as the Tribunal did not accept that a letter sent by regular mail would necessarily have a paper trial indicating the date that it was posted.
The Tribunal noted that the only evidence that the letter may not have been received is that Allstate’s log notes do not indicate that the OCF-1 was received, and further that Allstate had advised Jandu on July 7, 2023, that it had not been received. However, this was not viewed as necessarily determinative of the issue, as Allstate may not have received it or logged it even if it was sent. As the only paper trail is a copy of the letter and the OCF-1, the Tribunal opted to look to the actions of Jandu, ultimately finding there to be “compelling evidence that the applicant was under the impression that the OCF-1 was received by the respondent, which indicates to me that the letter was sent.”
Firstly, Jandu submitted that enclosed alongside the OCF-1 was a direction from his counsel, also dated July 29, 2022, advising Allstate that they had been retained, as well as requesting that the respondent direct all correspondence to his counsel. Jandu argues that if the direction was not received by the Allstate, there would have been no communication between Allstate and Jandu’s representative. To that end, on December 28, 2022, Allstate provided a copy of its file to the Jandu’s counsel. Accordingly, the Tribunal decided to “accept at the very least that the applicant believed he sent the respondent the direction, which was signed on the same day and sent in the same package as the OCF-1.” Allstate countered that this argument “rests on the unproven assumption that there were no other relevant communications between them. Although the onus is on the applicant to prove his case, he cannot prove a negative. If there was correspondence that contradicted the applicant’s claim, it was incumbent on the respondent to provide that evidence in its defence. It did not do so.”
Secondly, the Tribunal found that Jandu’s subsequent submission of an OCF-23 indicates that he at least “believed he had sent in his application for benefits and was therefore entitled to request funding for treatment. While this is not necessarily proof that the respondent actually received the OCF-1, I find that the applicant’s actions were not indicative of a person who neglected to send it. As I have no reason to believe that the letter was not sent, was sent to the wrong address, or was sent on a different date, I am persuaded that the applicant submitted the OCF-1 to the respondent on July 29, 2022.”
The Tribunal then considered whether Jandu had breached s. 32(5) wherein he was required to submit the OCF-1 within 30 days of receiving same. Allstate submitted that it sent the letter enclosing the accident benefits package, including the OCF-1, by mail on June 22, 2022. Jandu had not advised what date he received the letter, however the Tribunal noted that, in the absence of actual proof that the package was sent on the aforementioned date, even were it sent on that date, Jandu would have been deemed to have received it on June 29, 2022. As it had been determined that Jandu in fact submitted the OCF-1 on July 29, 2022, which was within 30 days after he would have been deemed to receive it, he was therefore not in breach of s. 32(5) of the Schedule.
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Allstate had contended that the forms in question were also provided to Jandu on February 15, April 11, and May 1, 2022, and therefore even if the OCF-1 was submitted on July 29, 2022, the applicant was still in breach of s. 32(5). However, only the February letter was before the Tribunal , “and otherwise the respondent only produced the adjusters’ log notes and emails directed to the respondent’s printing department requesting them to send the forms to the applicant. I do not have a copy of the other letters.”
Confirming that Jandu has the burden of proving that he complied with s. 32(5), Allstate also faced the burden of proving that it sent the application forms in accordance with s. 32(2). This entails that “the forms must have been sent to the correct address. I have reviewed the February letter and compared it with the address on the OCF-1, and it appears that the respondent misspelled the applicant’s street name and that the postal codes are different. Further, I am not persuaded by the internal emails to the printing department and adjuster’s notes alone that the other letters were sent, or that they were sent to the correct address, especially as the applicant advised the respondent multiple times that he did not receive them. I am accordingly not convinced that the applicant received the forms prior to June 22, 2022.”
Therefore, the Tribunal ordered that Jandu may proceed with his claim for benefits.
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