A recent legal ruling clarifies that the onus is on injury victims to proactively communicate with their insurers when they intend to seek accident benefits with the help of a personal injury lawyer.
Although claimants will get some leeway to account for their lack of experience in legal proceedings, the sympathy of adjudicators only extends so far, as one Ontario man recently discovered when his case was dismissed by the Licence Appeal Tribunal (LAT) — yet another ruling emphasizing the hard line courts and tribunals will take on statutory deadlines and limitation periods set out in Ontario’s Statutory Accident Benefits Schedule (SABS).
Notification of accident not the same as notification of injuries
The case of Jakupovic v. Intact Insurance Company concerned a man involved in a motor vehicle accident in February 2019. Although he called his insurer one day after the crash to report “heavy damage” to his vehicle, he did not tell the company that he intended to apply for accident benefits until December 2020 — almost two years after the accident.
His insurer eventually denied the claim for accident benefits on the basis that the man waited too long, prompting his application to the LAT, where he argued that the company should have probed him further about his injuries when he called to report the accident.
Under s. 32 of the SABS, a person involved in a motor vehicle accident has seven days from an incident to notify their insurer of their intention to claim accident benefits, or “as soon as practicable” after that day. Insurance companies must then respond with a benefits application package that includes the OCF-1 form, a written explanation of the benefits available and other information to assist the claimant.
Receiving the benefits package triggers yet another deadline for injury victims, giving them 30 days to submit a completed and signed application for benefits to their insurer. Another provision in the SABS clarifies 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 Jakupovic, the LAT adjudicator agreed with the insurer that the accident report was not enough to meet the notice requirements under s. 32, observing that the adjuster’s notes suggested the driver made no mention of any injury in either the initial conversation or subsequent communications regarding his property damage claim. In addition, the decision rejected the idea that there is any onus on the insurer to ascertain whether an insured individual intends to claim benefits under the SABS.
“The Schedule is clear that the applicant must first notify the respondent of their intention to seek accident benefits no later than the seventh day after the circumstances arose that give rise to the entitlement, or as soon as practicable after that day,” the adjudicator continued.
The LAT may show leniency for a missed deadline under s. 32 if the insured can demonstrate a “reasonable explanation” for the delayed notification.However, the term “reasonable explanation” is not specifically defined under the SABS. Instead, LAT adjudicators decide whether the claimant has met the threshold based on an assessment of the following guiding principles set out in LAT case law:
- 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.
In this case, the adjudicator was unconvinced by the claimant’s pleas of ignorance regarding the availability of accident benefits.
“He knew enough to contact the respondent regarding the damage to his vehicle. Moreover, it does not explain how he was not aware that his policy covered accident benefits given that the policy does set this out,” the decision reads.
Takeaways for accident victims
This decision is just the latest in a long line of cases reinforcing the need for communication between an injured person and their insurer in the days following their accident.
You don’t need to be certain that you will file a benefits claim to inform your insurer. Legal precedents on enforcing deadlines suggest that starting the process early can help you avoid missing the seven-day deadline under the SABS, even if you’re uncertain about the long-term effects of your injuries. Nothing is ultimately lost if your injuries resolve on their own and you decide not to go ahead with a claim.
It’s also important to remember that a missed deadline is not necessarily the end of your accident benefits case. The less time you wait, the more chance you will be able to provide a reasonable explanation for the delay that will keep your claim alive.
The SABS is a complicated piece of legislation, and while every auto insurance policy in the province contains details about your reporting deadlines, it’s not exactly the most user-friendly document. Reach out to a personal injury lawyer if you need help decoding the contents.
The deadlines in a personal injury case don’t stop with accident benefits notification. If you end up filing a tort claim in court, the Limitations Act generally requires any civil lawsuit to be filed within two years from the date that the claim was discovered. If your case involves injuries sustained on city property, it triggers special notification timelines to preserve a negligence claim against the appropriate municipal authority.
If you have suffered an injury or are unsure about your notification responsibilities, don’t hesitate to contact one of our experienced personal injury lawyers at Edwards Pollard for help. Our team will waste no time giving you a quick, fair assessment of the strength of your case while ensuring that all the key deadlines are met.
