Man making his next move

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.”

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