Limitation Period (OCF-1)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-29
CLNP Page ID:	1954
Page Categories:	OCF-1
Citation:	Limitation Period (OCF-1), CLNP 1954, <7p>, retrieved on 2024-04-29
Editor:	MKent
Last Updated:	2022/07/07

Canavan v. Unifund Assurance Company, 2021 CanLII 18912 (ON LAT)

[2] The applicant did not submit his application for accident benefits (OCF-1) to the respondent, Unifund, until more than 2 years had passed. The parties have differing views on the exact date of the submission of the OCF-1 however, both parties agree that it was more than 2 years following the accident.

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[11] Section 32(1) of the Schedule requires an insured person to inform an insurer of an accident within seven days, at which point the insurer will provide the insured with an OCF-1 along with various other documents. Section 32(5) then requires an insured person to complete and deliver these forms back to the insurer within 30 days.

[12] The onus is on Unifund to show that the applicant did not provide the required documents within the timelines prescribed in the Schedule.

[13] The parties agreed that the applicant informed the insurer of the accident within seven days. The parties agree that timelines in s. 32(5) of the Schedule were not met by the applicant in that he did not complete and deliver the OCF-1 within the thirty days. Accordingly, the applicant raises the exception in section 34 which allows an insured person to proceed with a late application for accident benefits if the person has a “reasonable explanation” for the delay. The applicant has the onus to show the exception in section 34 should be granted.

[14] Both parties rely upon the following principals that were adopted by the Tribunal in K.H v Northbridge General Insurance Company[2] in interpreting what constitutes a “reasonable explanation” for the purposes of s. 34 of the Schedule:

a. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed;

b. The onus is on the insured person to establish a “reasonable explanation;”

c. Ignorance of the law alone is not a “reasonable explanation;”

d. The test for a “reasonable explanation” is both a subjective and objective test that should take account of both personal characteristics and a “reasonable person” standard;

e. The lack of prejudice to the insurer does not make an explanation automatically reasonable; and

f. 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 with the time limit.[3]

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[25] The applicant further submits that he was in an emotional distressed state such that he could not submit his OCF-1. The applicant provides little to no evidence of this other than to say he was in an abusive relationship. He does not provide any information or evidence as to how or why this prevented him from filling out the OCF-1 provided to him by Unifund on or about January 28, 2014 and submitting the same to Unifund. The applicant submits that in the case of Kuronen v Allstate Insurance Company of Canada[7] the arbitrator allowed the applicant’s claim for accident benefits because the applicant was dealing with a number of issues including a separation from his wife.

[26] In Kuronen the arbitrator spent a considerable amount of time distilling the evidence regarding Mr. Kuronen’s state at the time and following the accident. This including noting that Mr. Kuronen was abusing alcohol and street drugs, he refused to follow doctor’s orders following major surgery (that included an open reduction and internal fixations) of his fractures, he was jailed and arrested for assault and then he lived on the street for a period of time. The separation of Mr. Kuronen from his spouse was a minor reason in that decision.

(...)

[32] 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 with the time limit.[8]