Injury victims should err on the side of early communication with their insurers as courts and tribunals take a hard line on statutory deadlines and limitation periods in motor vehicle accident cases.
Proving your damages is only one element of a personal injury action. If they ever want to get as far as a trial or settlement agreement, claimants will also have to meet a series of legal deadlines along the way, set out in provincial legislation and regulations such as Ontario’s Limitations Act or its Statutory Accident Benefits Schedule (SABS).
Courts and tribunals in Canada are notoriously overworked, and their decision-makers will have little hesitation in tossing out cases when an important deadline is missed without a good excuse, as one Ontario man recently discovered when the province’s Licence Appeal Tribunal dismissed his claim for accident benefits.
Accident benefits claim barred
The case of Adjetey v Economical Insurance concerned a man involved in a motor vehicle accident in October 2019. His insurer initially denied his claim for accident benefits because his application form, known as an OCF-1, was submitted almost two years after the incident, in September 2021.
At the LAT hearing, the man argued that the insurer was to blame for the delay because it failed to send him the OCF-1 form. The insurance company countered that the claimant was at fault because he had not notified them of his intent to apply for benefits.
Under s. 32 of the SABS, a person involved in a motor vehicle accident has seven days from the incident to notify their insurer of their intention to claim accident benefits or “as soon as practicable” after that day. Once they receive their OCF-1 forms, the same section gives a claimant 30 days to submit a completed and signed application for benefits to their insurer.
Another provision in the SABS highlights that missing either deadline will not necessarily be fatal to a claim, as long as the person has a “reasonable explanation” for failing to comply.
In Adjetey, the LAT adjudicator sided with the insurer, finding the claimant’s arguments “unpersuasive and illogical,” since the insurance company could not have been expected to send out forms without knowing an accident had occurred. In addition, the decision says the claimant never mentioned this explanation during an earlier examination under oath, and provided no evidence to back up his position.
What is a reasonable explanation?
The decision, in this case, appeared to be relatively straightforward for the LAT adjudicator. At the other end of the scale, it’s easy to imagine a claimant being excused for missing the seven-day notification deadline because they were in hospital recovering from an accident.
For the more contentious cases in between these extremes, the LAT set out its guiding principles for interpreting whether a claimant has provided a “reasonable explanation” for a missed SABS deadline:
- The explanation must be credible or worthy of belief
- The onus is on the insured person to establish that their explanation is reasonable
- Ignorance of the law alone is not a reasonable explanation
- The test is both a subjective and objective test that should take account of both personal characteristics and a “reasonable person” standard
- Lack of prejudice to the insurer does not make an explanation automatically reasonable
- The assessment 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.
Lessons for accident victims
In the early days following an accident, our Oakville personal injury lawyers recommend early communication with your insurer.
Even if you’re not sure you will ultimately need to make a claim for benefits, it is best to notify them as soon as possible to avoid the possibility of missing the seven-day deadline under the SABS.
Just because you receive an OCF-1 form from your insurer doesn’t mean you have to apply for accident benefits, and nothing is lost if your injuries resolve on their own and you decide not to go ahead with a claim.
Depending on the facts of your case and the nature of your claim, you may need to meet other key legal deadlines. For example, injuries involving municipal property trigger special notification timelines if you wish to preserve a negligence claim against the appropriate authority, while the Limitations Act generally requires any civil lawsuit to be filed within two years from the date that the claim was discovered.
At Edwards Pollard, our experienced personal injury lawyers do not take these issues lightly. We will waste no time giving you a quick, fair assessment of the strength of your case while ensuring that all the critical deadlines are met.
If you have been injured in an accident and would like to speak to a personal injury lawyer in Oakville about your situation, we would be happy to assist or simply call (289) 529-0404.
