HSH lawyer, Meghan Hull Jacquin was successful in a preliminary issue Hearing before the Financial Services Commission of Ontario (FSCO), where the Insurer, Jevco argued that their Insured was precluded from proceeding to Arbitration, as his application for accident benefits had not been submitted until nearly two years after his motor vehicle accident.
The Insured was involved in a rear-end collision in September, 2007 while on his way to work. Following his second surgery, when told that he would not likely be able to return to work, he decided to sue the at-fault driver in tort. He obtained approval from the Workplace Safety and Insurance Board (WSIB) to opt out of the Workers’ Compensation regime, sued in tort and applied for accident benefits.
The Insurer argued that this was not a case of delayed application at all, as their Insured had notified the Insurer immediately after the accident, provided a statement, but did not submit an Application for Accident Benefits (OCF-1). They argued that this was a ‘delay’ as he had made it clear that he was not to pursuing accident benefits, so the section which allows a reasonable explanation for a delayed application did not apply.
Arbitrator Henry found that the Insured’s late application was to be considered a ‘delay’ and that his explanation was a reasonable one pursuant to the SABS. While he acknowledged prejudice to the Insurer, the prejudice to the Insured far outweighed that of the Insurer.
See the decision at FSCO A12-003634.