Citation: Abushban v. Definity Insurance Company, 2025 ONLAT 25-004651/AABS - PI

Licence Appeal Tribunal File Number: 25-004651/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Mai Abushban

Applicant

and

Definity Insurance Company

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR: Trina Morissette, Vice-Chair

APPEARANCES:

For the Applicant: Kameliya Stancheva, Paralegal

For the Respondent: Nathalie Rosenthall, Counsel

HEARD: In writing

OVERVIEW

1Mai Abushban, the applicant, was involved in an automobile accident on March 30, 2023, and sought benefits from Definity Insurance Company, the respondent, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“the Schedule”). The applicant was denied benefits by the respondent and applied to the Licence Appeal Tribunal (“the Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2At a case conference held in this matter on July 15, 2025, the following preliminary issue was added to the application:

i. Is the applicant barred from proceeding to a hearing as she 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?

3In its submissions, the respondent also raised a subsequent issue being whether the applicant is barred from proceeding with her claim for accident benefits because she failed to provide documentation pursuant to section 33 of the Schedule. Although the applicant addresses this issue in her responding submissions, this is not a proper preliminary issue and will not be considered in the context of this Preliminary Issue Decision.

RESULT

4The applicant is barred from proceeding with her application.

ANALYSIS

Background and the Parties’ Positions

5On March 30, 2023, the applicant was a passenger in an Uber with her son when the accident occurred. No further details regarding the accident were submitted.

6The respondent submits that the applicant did not notify it of the circumstances giving rise to her claim for benefits within seven days of the incident and did not provide her OCF-1 within the time prescribed by the Schedule. The OCF-1 was submitted one year and six months following the accident and to date, the applicant has not provided a reasonable explanation for the delays. It argues that this has caused prejudice due to its inability to contemporaneously investigate and assess the applicant’s claim. As such, the applicant should be barred from proceeding with her application under section 55.

7The applicant submits that she provided a reasonable explanation for the late notice and the late submission of the OCF-1. She explained that she was not aware that she could receive accident benefits until a friend suggested she contact Uber to report the accident. She argues that her explanation is credible and supported by the correspondence provided to the respondent in October 2024 and again in October 2025 (I note here that this preliminary issue was decided before October 2025 and can only conclude this was an error). She submits that to deny her claim on a technical basis would be procedurally unfair and inconsistent with the objective of the Schedule.

The Law

8Section 32(1) of the Schedule provides that a person who intends to apply for accident benefits shall notify the insurer of their intention no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day.

9Once an insurer receives notice of an applicant’s intention to apply for statutory accident benefits, the insurer must provide the applicant with the appropriate OCF-1 forms, a written explanation of the benefits available, information to assist the person in applying for the benefits and information on the election relating to the specified benefits, if applicable (section 32(2)). Pursuant to section 32(5) of the Schedule, the applicant must then submit a completed and signed application for benefits to the respondent within 30 days after receiving the forms.

10Section 34 of the Schedule states that “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.” The onus is on the applicant to establish a reasonable explanation for the delay. The interpretation of “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada, 2003 ONFSCDRS 92 and was reiterated in K.H. v. Northbridge, 2019 CanLII 101613 (ON LAT) (“K.H.”). The guiding principles are summarized as follows:

a. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed;

b. The onus is on the insured person to establish a “reasonable explanation”;

c. Ignorance of the law alone is not a “reasonable explanation”;

d. The test for “reasonable explanation” is both a subjective and objective test that should take account of both personal characteristics and a “reasonable person” standard;

e. The lack of prejudice to the insurer does not make an explanation automatically reasonable; and

f. 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.

11Based on the parties’ submissions and the evidence submitted, the facts are as follows.

12The accident occurred on March 30, 2023. Neither party provided information on the specific date the applicant provided notification to the respondent pursuant to section 32(1) but the applicant does not dispute that she notified the respondent beyond the seventh day. The evidence suggests that the respondent was notified at some point before July 23, 2024, and the required documentation (OCF-1 form) was provided to the applicant on July 23, 2024 to be completed and returned to the respondent pursuant to section 32(5).

13The respondent relies on an Explanation of Benefits (“EOB”) dated July 23, 2024 as evidence that the applicant had not provided a completed OCF-1 by that date. I note that this EOB denies a treatment plan claimed by the applicant, and as part of its reasons for the denial, the respondent states that the applicant had not yet submitted a completed OCF-1. From this, I infer that the applicant notified the respondent of the accident prior to July 23, 2024 but had not yet provided her completed OCF-1.

14The evidence shows that the applicant then submitted her completed OCF-1 on September 13, 2024. On September 26, 2024, the respondent sent correspondence to the applicant acknowledging receipt of the completed OCF-1 and advised the applicant that since the OCF-1 was submitted one year and six months after the date of the accident, the applicant must provide a reasonable explanation for the delay.

15On October 10, 2024, the respondent sent a subsequent letter to the applicant again requesting a reasonable explanation for the delay.

16As previously stated, the applicant does not dispute that she failed to comply with the timelines in section 32 of the Schedule. Rather, the sole focus in her submissions was that she had a reasonable explanation for the delays. On October 16, 2024, counsel for the applicant provided the following information by letter to the respondent:

Further to your inquiries, please be advised that the reason for the client’s late application for Accident Benefits was due to her being a passenger in an Uber with her son and being unaware she could receive treatments after the incident. A friend later advised her to report the accident to Uber, who then provided the claim and policy numbers. Additionally, the Uber driver had pressured her to leave the scene before the police and ambulance arrived.

17On October 24, 2024, the respondent sent another letter to the applicant requesting more information and specifically requesting the reasons for the delay in submitting her OCF-1.

18In her submissions, the applicant states that she provided a signed “declaration” to the respondent on September 26, 2024, and again on October 25, 2024. She does not provide the details of this “declaration”, nor does she submit a copy of this document to the Tribunal. What she did submit is a copy of an email sent to the respondent on October 25, 2024 which states that she is providing an attached “Stat Dec was submitted on Sep 26, 2024” but nowhere in her evidence did the applicant submit a copy of this document.

19The applicant also submits that she sent a further “declaration” (date unknown) following the case conference in compliance with the Case Conference Report and Order, however, she did not provide a copy of this “declaration”, nor did she provide details of its content.

20Without any details of the two “declarations” relied on by the applicant – and I note that it is unknown if these “declarations” provided an explanation for the delays - the sole document submitted by the applicant that provides any explanation for the delays is the October 16, 2024 letter from her counsel to the respondent reproduced above.

21I find that the letter of October 25, 2024 does not provide a reasonable explanation for the delay in notifying the respondent pursuant to section 34. It advises the respondent that she was unaware she could apply for accident benefits which, as per K.H., does not on its own constitute a reasonable explanation. The applicant has not submitted any documentation to support her statement, such as correspondence with the Uber driver and/or the Uber company, and has not submitted either of the two “declarations” she references in her submissions.

22I find that the applicant has not satisfied her onus of providing a reasonable explanation for her delays pursuant to section 34. Even if I found that the October 25, 2024 letter was a reasonable explanation for the delay in notifying the respondent of the accident (section 32(1)) it does not provide a reasonable explanation for the delay in submitting her completed OCF-1 (section 32(5)).

23An assessment of reasonableness includes a balancing of prejudice to the respondent, hardship to the applicant, and whether it is equitable to relieve against the consequences of the failure to comply with the time limits at section 32. The applicant submits that it would be procedurally unfair for her claim to be denied on a “technical basis” however, taking into account the principles of K.H., I find that the applicant has not provided any documentation to support that she only learned of her entitlement to accident benefits after contacting Uber, her ignorance of these rights is not sufficient on its own, the delay of one and a half years in submitting her completed OCF-1 is significant, and her delays have caused prejudice to the respondent in fulfilling its obligations to investigate and assess her claim.

24For these reasons, I find that the applicant has not met her onus to establish a reasonable explanation for her delays.

Section 55

25Pursuant to section 55(1)1 of the Schedule, an insured person shall not apply to the Tribunal under section 280(2) of the Insurance Act if the insured person has not notified the insurer of the circumstances giving rise to the claim or has not submitted an application for the benefit within the time limits prescribed in section 32.

26As outlined above, I find that the applicant did not notify the respondent within the timelines prescribed by the Schedule, she did not submit an application for benefit within the timelines prescribed by the Schedule and she has not provided a reasonable explanation for the delays. Accordingly, I find that the applicant is statute-barred from proceeding with her application before the Tribunal.

ORDER

27The applicant is barred by section 55(1) from proceeding with her application before the Tribunal. The Tribunal shall vacate any date that has been scheduled for the substantive issues hearing.