DIVISIONAL COURT FILE NO.: DC-26-002
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HEENEY, MATHESON AND JENSEN JJ.
BETWEEN:
SUMMER MENDOWEGAN
Appellant
– and –
DEFINITY INSURANCE COMPANY
Respondent
Daniel Lester, counsel, for the Appellant
Nicholas Maida, counsel, for the Respondent
HEARD: June 17, 2026, by videoconference, virtually at Thunder Bay
The judgment of the Court was delivered by,
1This is appeal of a decision of the License Appeal Tribunal (“LAT”), rendered by Adjudicator Tami Cogan (“the adjudicator”) on August 5, 2025, and the internal reconsideration decision of Vice-Chair Tyler Moore dated January 23, 2026, which dismissed the request for reconsideration.
The Facts:
2The primary decision in question found that Summer Mendowegan (“the appellant”) was statute-barred from proceeding with an application for statutory accident benefits (“SABs”), arising out of an accident on July 29, 2023. She was struck by an uninsured motorcycle while attempting to cross a dirt road, after exiting a vehicle insured by Definity Insurance Company (“the respondent”). She sustained serious injuries, including a near-complete left foot amputation. Pursuant to s. 32(1) of the Statutory Accident Benefits Schedule, O. Reg. 34/10, a person who intends to apply for benefits must notify the insurer of his or her intention to do so no later than the seventh day after the accident. The appellant did not notify the respondent until September 20, 2024, almost 14 months after the accident and eight months after her aunt told her to contact a lawyer.
3Section 34 of the Schedule provides as follows:
- A person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.
4The adjudicator received written submissions from the parties as to whether or not the appellant provided a reasonable explanation for failing to comply with s. 32(1). It is common ground that the onus of proof on this issue is on the appellant.
5The appellant argued, in sum, that as an unsophisticated accident victim in Northwestern Ontario, she was not aware of the availability of accident benefits through the policy on the vehicle that she had been a passenger in, and only became aware of this when she retained counsel, following which she gave immediate notice. She had no insurance of her own. Neither the police, nor hospital staff, nor anyone from Non-Insured Health Benefits discussed the availability of other insurance benefits with her. She argued that she is a young, Indigenous woman, residing in rural northwestern Ontario with limited access to internet.
6The respondent, in response, relied on several admissions made by the appellant during her examination under oath, including the following:
- She took photographs of her injuries while in hospital because she knew that she wished to sue the person who hit her;
- She spoke with her aunt in January 2024 and was told to speak with “Dan”, her current lawyer;
- After returning home from the hospital in October 2023, she still had access to the internet and continued her job working online.
7The legal test applied by the adjudicator in determining whether the appellant had provided a reasonable explanation was precisely the same test that was accepted by this court in Aviva v. McNamara, 2022 ONSC 1462 (Div. Ct.) at para. 22, as being the correct one. It is as follows:
- An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.
- The onus is on the insured person to establish a "reasonable explanation."
- Ignorance of the law alone is not a "reasonable explanation."
- The test of "reasonable explanation" is both a subjective and objective test that should take account of both personal characteristics and a "reasonable person" standard.
- The lack of prejudice to the insurer does not make an explanation automatically reasonable.
- An assessment of reasonableness includes a balancing of prejudice to the insurer, hardship to the applicant and whether it is equitable to relieve against the consequences of the failure to comply with the time limit.
8The adjudicator considered each factor in turn in her decision, and the arguments raised by the parties. Of particular note, she agreed that the appellant is an unsophisticated party, but observed that that is only one consideration in determining if her explanation for delay is reasonable. She found that the appellant’s claim that she had limited access to the internet was not supported by the evidence. The adjudicator agreed that some delay was reasonable after the accident but here it was fourteen months.
9When considering item #6 ˗ the balancing exercise between hardship to the appellant and prejudice to the respondent ˗ the adjudicator found prejudice. She noted that the appellant had sustained injuries in a number of incidents between the date of the accident and the time it was reported to the insurer, including an attendance at hospital on April 4, 2024 resulting from a slip and fall on ice a week before; lower back pain reported on July 26, 2024, having started one week earlier after a night of drinking; an assault on July 28, 2024; an attendance at hospital on August 30, 2024, after having “wiped out” while riding an electric bike and landing on her right hip; and spinal surgery for acute cauda equina syndrome on September 19, 2024.
10The adjudicator concluded that the respondent suffered prejudice as a result of the delay because it was denied the opportunity to conduct a timely assessment of the appellant's medical condition, thereby impairing its ability to address causation and to determine whether the appellant's current medical issues were attributable to the accident or to post-accident events.
11Weighing all of the factors, the adjudicator ultimately concluded that the appellant had failed to provide a reasonable explanation for the 14-month delay, and was therefore statute-barred from applying for SABs.
12In his reconsideration decision, Vice-Chair Moore found no error of fact or law in the adjudicator’s weighing of the evidence and her conclusions, and observed that cases involving s. 32 compliance are “highly fact-specific and contextual.” He dismissed the application for reconsideration.
Jurisdiction:
13Pursuant to s. 280 of the Insurance Act, R.S.O. 1990, c. I.8, the parties may apply to the LAT to resolve a dispute regarding entitlement to SABs. Pursuant to s. 11(1) of the License Appeal Tribunal Act, 1999, S.O. 1999, c.12, an appeal from a decision of the LAT lies to the Divisional Court.
14Pursuant to s. 11(6) of the latter Act, such an appeal may be made “on a question of law only”.
15It is common ground that if a question of law is shown to arise, it is reviewable on a standard of correctness.
The Issues:
16Although the parties framed the issues before this court in a variety of ways, this case, as it was argued before this panel, can be distilled into one central question: did the adjudicator err in law in failing to expressly address the decision of Adjudicator Kaur in Shaver v. Onlia, 2023 ONLAT 22-009102, 2023 CanLii 58481 (ON Lat) (“Shaver”)?
17This precedent was relied upon by the appellant in her written submissions to the adjudicator concerning the “reasonable explanation” issue. It was, in fact, the only authority relied upon by the appellant in her submissions.
18In Shaver, Adjudicator Kaur was dealing with an applicant who failed to provide notice of his claim for SABs until 18 months post-accident. Adjudicator Kaur found that the test of “reasonable explanation” was both a subjective and an objective one that should consider the personal characteristics and the reasonable person standard. She found that the applicant was an unsophisticated party with limited education who worked as a labourer/landscaper. Adjudicator Kaur was persuaded that the applicant would not have known that he was entitled to benefits after having been struck by a motor vehicle as a pedestrian. Accordingly, she held that the applicant had provided a reasonable excuse for the late notice, and allowed the claim for SABs to proceed.
19In the case at bar, the adjudicator did not mention Shaver in her decision, and accordingly she did not distinguish that authority, nor otherwise explain why an arguably analogous case produced a result contrary to the conclusion she ultimately reached. The appellant argues that the failure to consider Shaver constitutes an error of law.
20In his reconsideration decision, Vice-Chair Moore found that the adjudicator had applied the correct legal test, and that the manner in which she weighed the evidence did not constitute an error of fact or law. He noted that the adjudicator considered both subjective and objective factors in her analysis. He agreed with the appellant that the adjudicator “should have addressed Shaver in its decision”, but the requesting party must both show that an error occurred and that the error would likely have impacted on the outcome. He found that the appellant had not pointed him to any legal principle that was missed in the adjudicator’s decision.
Analysis:
21The question now before this court is, does the adjudicator’s failure to address Shaver constitute an error of law?
22In Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 (Div. Ct.), at paras. 28-9, Kristjanson J., speaking for the court, discussed the circumstances under which a question of law might arise in an appeal of a decision of the LAT concerning entitlement to SABs:
On a statutory appeal limited to questions of law alone, the court considers whether the decision-maker correctly identified and interpreted the governing law or legal standard relevant to the facts found by the decision-maker. There are limited circumstances in which findings of fact, or the administrative decision-maker’s assessment of evidence, may give rise to an error of law alone for the purposes of appeal. If the adjudicator ignored items of evidence that the law required him or her to consider in making the decision, then the adjudicator erred in law: Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748 at para. 41. Challenges to the sufficiency or weight of evidence supporting a finding of fact do not give rise to a question of law. An error in law or legal principle made during the fact-finding exercise, however, can give rise to an extricable question of law. A “misapprehension” of the evidence does not constitute an error of law unless the failure is based on a wrong legal principle: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 25 and 29. It is an error of law to make a finding of fact on a material point where the factual finding is based solely on (a) no evidence, (b) irrelevant evidence, or (c) an irrational inference (Johannson v. Saskatchewan Government Insurance, 2019 SKCA 52 at paras. 24-25).
If the adjudicator considered all the mandatory or relevant evidence, but reached the wrong conclusion, then the error is one of mixed law and fact. If the adjudicator erred in applying the law (the correct legal standard) to the facts, that is a matter of mixed law and fact: Southam Inc. at paras. 41-42.
23In the case at bar, it is conceded that the adjudicator applied the correct six-part legal test when determining whether the appellant had provided a reasonable explanation for failing to notify the respondent of her involvement in the accident within the requisite time period. The appellant’s complaint is that, when applying that test to the evidence before her, the adjudicator failed to approach the case in a similar manner to Shaver, in that she failed to give sufficient weight to the fact that the appellant was unsophisticated, and that she “failed to correctly balance” the prejudice to the insurer for having lost the opportunity to medically assess the appellant in a timely manner as against the hardship to the appellant in having her claim for accident benefits barred. I find that these are not questions of law, they are questions of mixed fact and law. They constitute the application of the correct legal standard to the facts of the case.
24This court has ruled more than once that questions as to whether an applicant for SABs has provided a reasonable explanation for late notice are questions of mixed fact and law, not questions of law only: see Basuric v. Dominion of Canada General Insurance Company, 2022 ONSC 6148 (Div. Ct.); Aviva v. McNamara (supra).
25While questions of mixed fact and law are reviewable on an application for judicial review (on a standard of reasonableness), no such application has been brought. Thus, this appeal must fail unless the appellant can demonstrate an error of law.
26Given that Shaver was the one and only legal authority relied upon by the appellant in her submissions, I agree that it would have been preferable had the adjudicator expressly discussed it in her reasons, and provided an explanation as to why an arguably similar fact situation there led to the opposite result arrived at by the adjudicator. However, counsel for the appellant candidly concedes that he is unable to provide any authority for the proposition that the failure to expressly discuss a particular precedent in reasons for decision amounts to an error of law.
27In CNH Canada Ltd. v. Chesterman Farm Equipment Ltd., 2018 ONCA 637, at para. 87, the Court of Appeal made it clear that “an alleged inconsistency with another decision of the tribunal is not reason for this court to intervene”.
28The appellant relies on Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 to argue that those affected by administrative decisions are entitled to expect that like cases will generally be treated alike. At para. 129, Wagner C.J.C. said the following in that regard:
Administrative decision makers are not bound by their previous decisions in the same sense that courts are bound by stare decisis. As this Court noted in Domtar, “a lack of unanimity is the price to pay for the decision-making freedom and independence” given to administrative decision makers, and the mere fact that some conflict exists among an administrative body’s decisions does not threaten the rule of law: p. 800. Nevertheless, administrative decision makers and reviewing courts alike must be concerned with the general consistency of administrative decisions. Those affected by administrative decisions are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision maker — expectations that do not evaporate simply because the parties are not before a judge.
29However, Wagner C.J.C. went on, at paras 130-131, to describe how and when any inconsistency in established internal decisions might be addressed:
Fortunately, administrative bodies generally have a range of resources at their disposal to address these types of concerns. Access to past reasons and summaries of past reasons enables multiple individual decision makers within a single organization (such as administrative tribunal members) to learn from each other’s work, and contributes to a harmonized decision-making culture. Institutions also routinely rely on standards, policy directives and internal legal opinions to encourage greater uniformity and guide the work of frontline decision makers. This Court has also held that plenary meetings of a tribunal’s members can be an effective tool to “foster coherence” and “avoid ... conflicting results”: I.W.A., Local 2-69 v. Consolidated Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282 (S.C.C.), at pp. 324-28. Where disagreement arises within an administrative body about how to appropriately resolve a given issue, that institution may also develop strategies to address that divergence internally and on its own initiative. Of course, consistency can also be encouraged through less formal methods, such as the development of training materials, checklists and templates for the purpose of streamlining and strengthening institutional best practices, provided that these methods do not operate to fetter decision making.
Whether a particular decision is consistent with the administrative body’s past decisions is also a constraint that the reviewing court should consider when determining whether an administrative decision is reasonable. Where a decision maker does depart from longstanding practices or established internal authority, it bears the justificatory burden of explaining that departure in its reasons. If the decision maker does not satisfy this burden, the decision will be unreasonable. In this sense, the legitimate expectations of the parties help to determine both whether reasons are required and what those reasons must explain: Baker, at para. 26. We repeat that this does not mean administrative decision makers are bound by internal precedent in the same manner as courts. Rather, it means that a decision that departs from longstanding practices or established internal decisions will be reasonable if that departure is justified, thereby reducing the risk of arbitrariness, which would undermine public confidence in administrative decision makers and in the justice system as a whole.
30These passages reaffirm the longstanding principle that administrative tribunals are not bound by prior tribunal decisions, in the same way that courts are bound by stare decisis. Some conflict among an administrative body’s decisions, such as that which arguably exists between the decision under review and Shaver, does not threaten the rule of law. One can conclude from this that the failure of a tribunal to follow a prior decision does not amount to an error of law. In contrast, the failure of a court of law to follow binding precedent could well amount to an error of law.
31Wagner C.J.C. outlines a number of strategies for encouraging coherence in administrative decision-making, such as policy directives, training, and similar measures. The only role for the courts in such an exercise is outlined in para. 131. Where a decision-maker departs from longstanding practices or established internal authority, a court may conclude that the decision is unreasonable, absent reasons from the tribunal that explain and justify that departure. This could only occur on an application for judicial review, where the decision, as a whole, is reviewable on a standard of reasonableness.
32The case before this court is not an application for judicial review but is, instead, an appeal on a question of law only. Nowhere does Wagner C.J.C. state that a departure from established internal authority constitutes an error of law.
33Furthermore, there is nothing before the court to indicate that the decision of the adjudicator constitutes a departure from longstanding internal authority, nor that Shaver is representative of any longstanding internal authority. Instead, one may well conclude that Shaver is an outlier. KH v. Northbridge General Insurance Company, 2019 CanLii 101613 (ON LAT) is a decision which concluded that the applicant had failed to provide a reasonable explanation for late notice, and was cited by the adjudicator in her decision. KH had been cited on by the LAT 126 times as of the date of the respondent’s factum. By contrast, Shaver had been cited only 6 times, and each time was distinguished.
34Finally, the appellant relies on Tomec v. Economical Mutual Insurance Co., 2019 ONCA 882 at paras 42-3, where the Court of Appeal confirmed that the SABs are remedial and constitute consumer protection legislation. As such they should be read in their context and in their ordinary sense, harmoniously with the scheme of the Act and the intention of the legislature. The goal of the legislation is to reduce the economic dislocation and hardship of motor vehicle accident victims.
35None of this is disputed by the respondent. However, this case is not about statutory interpretation. It is, instead, about the application of the admittedly correct legal test that flows from the statute, to the facts of the case.
36Before concluding, I should mention that the appellant’s factum obliquely mentioned a lack of procedural fairness, but that issue was not fleshed out in the factum, nor was it argued in oral argument, and accordingly it will not be addressed.
37While I sympathize with the appellant, and wish her a full recovery from her injuries, I am compelled to conclude that her appeal does not raise a question of law, and for that reason it must be dismissed.
38With respect to costs, they are awarded to the respondent, in the agreed-upon sum of $5,000 all inclusive.
T. Heeney J.
I agree. W. Matheson J.
I agree. K. Jensen J.
Released: August 6, 2026
CITATION: Mendowegan v. Definity Insurance Company, 2026 ONSC 4087
Divisional Court File No.: DC-26-002
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HEENEY, MATHESON AND JENSEN JJ.
BETWEEN:
SUMMER MENDOWEGAN
Appellant
– and –
DEFINITY INSURANCE COMPANY
Respondent
REASONS FOR JUDGMENT ON APPEAL
Released: August 6, 2026