Volume. 7 Issue. 40 – November 1, 2023
This week’s edition features two cases in which the Applicant failed to comply with s.32 of the Schedule. In Coffee Lid “Intervening Act”, an improperly secured lid on a coffee purchased at a drive through was found to be the cause of the applicant’s coffee spill related injuries. In addition, his reason for a 7 month delay in advising the Respondent of the incident was found not to be reasonable, therefore he would not have been able to proceed with his claim had the matter been deemed an “accident”.
However, in 18 Month Notice Delay Excused, the Applicant was found to be an unsophisticated party, who would not reasonably have known that being struck by a vehicle as a pedestrian would entitle him to make claims against an automobile policy.
inHEALTH MEDIATION EVENT
(December 4-8, 2023)
Limited Availability – Resolve your high-risk AB cases now!
inHEALTH Mediation expedites the resolution of your high-risk CAT, IRB and Tolling Agreement cases.
Gather some tough cases that you want to resolve and let’s get the parties talking. You can reserve multiple time slots or even a full day. Learn more…
Coffee Cup Lid Issue an Intervening Act
Coffee Lid “Intervening Act” – The Applicant Rathbone, in 22-009104 v Co-operators, was stopped at a drive through window, purchasing two coffees. As he transferred the second from the window into the car, the lid came off, resulting in coffee spilling onto his lap, and he reacted to same by dropping the remainder of the coffee onto his lap. He secured burn injuries, and ultimately sought treatment at the hospital for his injuries. Rathbone submitted both that the described incident satisfied the definition of “accident” in accordance with the Schedule, and as well that he had a reasonable explanation for not reporting this August 2021 incident to Co-operators until March 2022.
Rathbone contended that there was no intervening act that would absolve the respondent of liability. He relied on the Court in Dittmann v. Aviva, that was affirmed by the Court of Appeal. In Dittman, she was also transferring the coffee from the drive through window into the car, holding same by the lid, at which time the cup released from the lid, and the coffee thusly spilled onto her lap. The Court held “That the beverage might inadvertently spill is a normal incident of the risk created by that use. Accordingly, it cannot be said to have been outside the “ordinary course of things…”. Therefore, Dittman was involved in an “accident”, as there was no intervening act that would effectively break the chain of causation.
However, despite markedly similar circumstances, the Tribunal found that the facts of the within case were distinguishable. It was noted that Rathbone had mentioned at his EUO that the fact of the lid not being secured properly to his coffee cup a couple of times. Therefore, it was found that “the fact that the lid was not secured properly was the intervening act that caused the injuries and broke the chain of causation… his injuries resulted from an intervening cause, which was the improperly secured lid that caused the coffee to spill onto him.” Accordingly, the use or operation of the vehicle did not directly cause the injuries sustained by Rathbone.
With respect to the aforementioned late notice, Rathbone testified at his EUO that “…I understand it happened within a vehicle, but my — my first mind or my first reaction was not that this could be anything that could be covered under my car insurance policy.” It was not until he received a legal opinion that he discovered that he could apply for accident benefits as a result of the incident. The Tribunal did “not find this explanation credible or worthy of belief. The applicant had retained experienced legal counsel within weeks of the incident. It is unclear why it took almost seven months to notify the respondent… In my view, the applicant’s explanation for the delay is not reasonable”.
Therefore, Rathbone was found not to have complied with s.32 and s.34 of the Schedule, having “failed to provide a reasonable explanation for the delay in notifying the respondent regarding the circumstances that gave rise to the entitlement to the benefit…”.
Notice Delayed by 18 Months Found Reasonable
18 Month Notice Delay Excused – In 22-009102 v Onlia, the Tribunal was to decide on the preliminary issue as to whether the Applicant Shaver was “barred from proceeding to a hearing as the applicant failed to notify the respondent of the circumstances giving rise to a claim for benefits no later than the seventh day after the circumstances arose, or as soon as practicable after that day (as required by section 32(1) of the Schedule). In contrast to the case noted above, the Tribunal determined that, despite an 18 month delay in providing notice “it would be equitable to relieve against the consequences of the applicant’s failure to comply with s. 32 because he has provided a reasonable explanation for the delay.”
At his EUO, Shaver “testified that the main reasons were that he is not “smart with this stuff”, he “wanted to look into it”, he “didn’t know there was anything I could do about it”, and he “wasn’t sure at all”. The Tribunal however, found it “credible and worthy of belief that an unsophisticated party might not realize that that one can apply for accident benefits through their insurer in circumstances where they were hit as a pedestrian. While I agree that ignorance of the law is not a reasonable explanation, the test of “reasonable explanation” is both a subjective and objective test that should take into account both the personal characteristics and the “reasonable person” standard.”
The Tribunal further reasoned that Shaver “is an unsophisticated party. He has a limited level of education and worked as a labourer/landscaper. Given the applicant’s personal characteristics, I am persuaded that he would not have known that he was entitled to benefits after being struck as a pedestrian. He also stated that if he had known that accident benefits were available to him, he would have contacted the respondent right away. I do not have any reason to disbelieve him. It was not until he spoke to a lawyer that he found out that he was able to file an application for accident benefits. Once he retained counsel in February 2022, he immediately notified the respondent of his intent.”
Accordingly, Shaver was allowed to proceed with his application, with “the hardship to the applicant if he is prevented from proceeding to a substantive issue hearing would be far greater than any prejudice faced by the respondent.”
Access inHEALTH’s research resources through Live Chat and receive your OAR. Get It now!