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| [[Category:Accident Benefits]] | | [[Category:Accident Benefits]] |
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| ==Canavan v. Unifund Assurance Company, 2021 CanLII 18912 (ON LAT)<ref name="Canavan"/>==
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| 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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| 3. There is no dispute between the parties that the applicant submitted his OCF-1 outside of the prescribed timelines in section 32 of the Schedule[1]. <b><u>Instead, the preliminary issue before the Tribunal is whether he has a reasonable explanation for that delay that would permit him to proceed with his application for accident benefits.</b></u>
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| 8. The issues to be decided are:
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| a) Is the applicant statue barred means of section 32(5) and 55(1) of the Schedule and if so has the applicant provided a reasonable explanation of delay pursuant to section 34 of the Schedule, such that he ought to be entitled to proceed with his claim for accident benefits?
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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.
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| 12. The onus is on Unifund to show that the applicant did not provide the required documents within the timelines prescribed in the Schedule.
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| 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.
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| 14. Both parties rely upon the following principals that were adopted by the Tribunal in K.H v Northbridge General Insurance Company<ref name="KH"/> in interpreting what constitutes a “reasonable explanation” for the purposes of s. 34 of the Schedule:
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| a. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed;
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| b. The onus is on the insured person to establish a “reasonable explanation;”
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| c. Ignorance of the law alone is not a “reasonable explanation;”
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| 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;
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| e. The lack of prejudice to the insurer does not make an explanation automatically reasonable; and
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| 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.
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| <ref name="Canavan">Canavan v. Unifund Assurance Company, 2021 CanLII 18912 (ON LAT), <https://canlii.ca/t/jdpxq>, retrieved on 2021-04-26</ref>
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| <ref name="KH">K.H. v Northbridge General Insurance Company, 2019 CanLII 101613 (ON LAT), <https://canlii.ca/t/j33w1>, retrieved on 2021-04-26</ref>
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