What are the first steps of applying for accident benefits?

Here you can learn about the starting point of accident benefits applications

Within seven days of the accident, the injured person must notify their insurer (such as through their insurance agent or broker) that he/she intends to apply for accident benefits.

Who is the appropriate insurer/defendant?

       If the injured person is …        The AB insurer is …
  • The driver of the vehicle involved in the MVA
  • If the driver has auto insurance, his/her own insurer
  • If the driver does not have auto insurance but is covered by someone else’s auto insurance, that insurer
  • If the driver was driving a company vehicle, the insurer of the company vehicle
  •  A passenger in a vehicle involved in the MVA
  • If the passenger has auto insurance, his/her own insurer
  • If the passenger does not have auto insurance, the driver’s insurer
  • If the driver does not have auto insurance, the insurer of any other person involved in the MVA
  •  A pedestrian involved in the MVA
  • If the pedestrian has auto insurance, his/her own insurer
  • If the pedestrian does not have auto insurance, the at-fault driver’s insurer
  • If the driver does not have auto insurance, the insurer of any other person involved in the MVA

A claim number and adjuster will be assigned to the insured’s file. The insured will be sent a blank “Application for Accident Benefits”, OCF-1. The OCF-1 must be completed and submitted within 30 days of receipt. If it is incomplete, the insurer has 10 days to notify the insured of what is missing. The insured has 30 days from such notice to submit an additional application.

If the insured does not submit an OCF-1 within the 30-day time limit, he/she is still entitled to claim benefits if he/she has a “reasonable explanation” for failing to comply pursuant to s. 32(10) of SABS (to be discussed in more detail in the next blog post)

If the accident occurred while the insured was working, the insured must either apply for Worker Insurance Safety Board (WSIB) Benefits or opt out by filing a letter with WSIB. The insured cannot take both WSIB benefits and accident benefits. Once a decision is made, the Election Form must be completed and submitted within three months of the accident. The insurer is not required to pay weekly benefits for any period of time before an election is made. You should meet with your legal representative to discuss your case and decide which plan – WSIB or SABS – will provide the best benefits option.

The insured must complete and submit a “Disability Certificate” (OCF-3) along with the OCF-1. The insured or their legal representative completes Parts 1-4 of the OCF-3 while their health practitioner completes Parts 6-10. Note that Part 3 describes the accident and so should be reviewed by the legal representative because the tort insurer may use it against the insured in the tort claim, such as by arguing that the insured was negligent. The insurer will request subsequent Disability Certificates to determine ongoing benefit payments.

What is a “reasonable explanation” for a delay in applying for accident benefits?

Find out about what this legal term means and some examples

In J.V. v. Unifund Insurance Company (2019), the License and Appeal Tribunal (aka LAT) adopted a test for what constitutes a “reasonable explanation” under sub-s. 32(10) of the SABS.

It adopted a method of analysis from the Financial Services Commission of Ontario Arbitrator’s precedent Horvath v. Allstate Insurance Co. of Canada (2003).

Because decisions of courts of coordinate jurisdiction in Canada are not legally binding on each other, the J.V. v. Unifund precedent is not binding but is highly persuasive for LAT members.

The J.V. v. Unifund test for determining whether there is a reasonable explanation for a delay consists of the following factors:

  • An explanation must be determined to be credible or worthy of belief before its reasonableness can be determined,
  • The onus of proof is on the insured person to establish a “reasonable explanation”,
  • Ignorance of the law is not a “reasonable explanation”,
  • The test of “reasonable explanation” is both subjective and objective, and should take account of both personal characteristics and a reasonable person standard,
  • The lack of prejudice to the insurer – that is, the fact that the delay does not harm the insurer – does not make an explanation automatically reasonable, and
  • 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.

Precedents – Prior Cases/Examples

       A reasonable explanation        Not a reasonable explanation
  • Addiction problems combined with incarceration and marital difficulties while suffering accident-related injuries (Kuronen v. Allstate (FSCO 1995))
  • Being young, having a lengthy stay in the hospital, being unfamiliar with the accident benefits scheme and relying on incorrect advice by an insurance agent (Deol v. Liberty Mutual (FSCO 2000))
  • Not having the mental or emotional means to pursue a claim or treatment for one’s own injuries until after one’s spousal claim has been settled (R(S) v. State Farm (FSCO 2011))
  • Being afraid of medical professionals (Syed v. Allstate (FSCO 2003))
  • Hoping purportedly serious injuries would go away on their own (Syed v. Allstate (FSCO 2003))
  • Solely relying on counsel to apply on one’s behalf (Carruthers v. Royal and Sun (FSCO 2002))

Hypothetical: The applicant Nicole was involved in a single-vehicle accident. Nicole’s husband was driving at the time of the accident and had been drinking over the legal limit. Neither she nor her husband were insured. The accident occurred in 2013. They did not report the accident to police or attend the hospital. In 2015 she separated from her husband who she alleges was abusive. Nicole did not make a claim for accident benefits in 2013. Instead, she made her claim in 2019 on the basis that she had sustained a traumatic brain injury. Her insurer maintains that her claim is statute-barred, but she says she has a reasonable explanation for her delay and should be permitted to proceed. Her proposed reasonable explanation has six factors:

  • Nicole did not notify her insurer of her intention to apply for benefits within seven days of the accident because she was trying to protect her husband from DUI charges,
  • She felt intimidated by her husband from pursuing accident benefits,
  • She and her husband had an alcohol dependency,
  • She was under financial stress,
  • She believed that her symptoms would improve, and
  • She had no support

There are strong arguments that Nicole’s explanation is not sufficient for her delay.

  • While her argument about DV is worthy of belief, there was a significant amount of time (6 years) to work around these issues,
  • She separated from her husband in 2015 and could have pursued an application for accident benefits at that time,
  • It is unclear how alcohol dependency prevented her from notifying her insurer of her intention to apply for accident benefits sooner, and
  • It would be prejudicial to the insurer. Much time has elapsed since the accident. It is impossible to determine now whether her injuries were caused by the accident or some intervening event.

(Hypothetical fact scenario adapted from J.M. v. Unifund)