Citation: Rawlins v. Definity Insurance Company, 2025 ONLAT 25-006120/AABS - PI

Licence Appeal Tribunal File Number: 25-006120/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:

Sheldon Rawlins

Applicant

and

Definity Insurance Company

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR:

Trina Morissette, Vice-Chair

APPEARANCES:

For the Applicant:

Kayla Cuff, Paralegal

For the Respondent:

Melinda Baxter, Counsel

HEARD: In writing

OVERVIEW

1Sheldon Rawlins, the applicant, was involved in an automobile accident on October 9, 2024, 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 on August 13, 2025, the following preliminary issues were added to the application:

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

ii. Is the applicant barred from proceeding with their claim for benefits as they failed to submit the application for benefits (OCF-1) within the time prescribed in the Schedule?

RESULT

3The applicant is permitted to proceed with his application.

BACKGROUND

4On October 9, 2024, the applicant was driving his employer’s cube van when an e-bike exited a plaza onto the street at high speed, cutting off the vehicle travelling in front of the cube van, and causing it to suddenly brake. The applicant was unable to stop in time and rear-ended the vehicle. The accident was reported, and a Motor Vehicle Collision Report was prepared.

5The following day, after attending work in the morning, the applicant visited the Mount Dennis Weston Health Centre (“the centre”) where he reported pain in his knee. The applicant, a crew leader with a landscaping company, was prescribed Tylenol 1000 mg, told to ice and elevate his knee, and was recommended physiotherapy and massage therapy. The applicant was also recommended to be placed on modified work duties until the following week.

6The following week, the applicant re-attended the centre for a follow-up and complained of continued pain in his knee. At this time, he was provided a referral letter for physiotherapy and physiatry.

ANALYSIS

7Section 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.

8Once 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.

9Section 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.

10Additionally, pursuant to Hussein v. Intact Insurance Company, 2025 ONSC 842 (“Hussein”), an interpretation of section 32(1) must recognize the reality that consumers who have motor vehicle accidents are in a vulnerable position, particularly in the period immediately following the accident. Hussein provides that the insurer has a positive obligation to inquire and assist an insured person with their application for accident benefits and affirms that insurers cannot simply rely on the insured person’s inaction to determine that no benefits will be claimed.

11The respondent submits that it was not notified that the applicant had been involved in an accident or that he intended to seek accident benefits until it received the applicant’s OCF-1 on February 13, 2025, being four months and four days after the accident. Aside from an email received from the applicant’s counsel on February 25, 2025 which provided the applicant’s reason for the delay in submitting his application, no further explanation or evidence was provided to support the explanation. The respondent submits that the explanation provided is neither reasonable, nor credible and the applicant should be barred from proceeding with his application.

12The applicant submits that a reasonable explanation for the delay was provided. The applicant states that he immediately reported the accident to his employer and understood that his employer would report the accident to its insurer. He had no access to the insurer’s information. The applicant was also unaware of his entitlement to accident benefits through his employer’s policy and only learned of his rights once he retained counsel. With the assistance of his counsel, the applicant obtained the Motor Vehicle Collision Report on February 5, 2025, learned of the respondent’s information, and submitted the OCF-1 eight days later.

13For the reasons that follow, I find that the applicant has provided a credible, believable and in my view, reasonable explanation for submitting his application to the respondent on February 13, 2025 with no prior notification. Further, given the respondent did not provide an accident benefits package to the applicant for completion, I find that the 30-day timeline of section 32(5) was never initiated.

14The parties agree that the first communication between the applicant and the respondent was on February 13, 2025 when the OCF-1 was submitted to the respondent. On February 14, 2025 the respondent sent a letter to the applicant confirming receipt of the application, however it advised the applicant that he did not provide notice pursuant to section 32(1) of the Schedule, he failed to submit a completed OCF-1 within 30 days pursuant to section 32(5), and he did not provide a reasonable explanation for the late notice of his claim. The respondent requested that the applicant provide a reasonable explanation for the delay in addition to other medical documentation.

15On February 25, 2025, the applicant’s counsel provided the following explanation to the respondent:

Please be advised that after my client’s MVA he was unaware he had any entitlement to Accident Benefits. Furthermore, he was not in communication with your office as his employer handled the [property damage] claim for the vehicle. As a result of his accident-related injuries, he retained our office at which point we advised him of his entitlement to Accident Benefits through his employer’s auto insurance policy. At that time, [the applicant] was not in possession of the auto insurance policy details nor had his employer provided him with the claim number. Despite our client’s best efforts, we were not able to obtain auto insurance details until we received the police report at which point we submitted an Application for Accident Benefits.

16The respondent submits that this explanation is neither reasonable nor credible and argues that the applicant did not notify it of his intent to claim accident benefits until he submitted his OCF-1 on February 13, 2025. The respondent also submits that the applicant did not produce evidence of his or his counsel’s attempts to obtain the policy information from his employer, or their attempts to obtain the information through the accident report.

17Section 32(1) of the Schedule imposes an obligation to notify the insurer within seven days of the accident. The applicant submits that since he was involved in an accident with his employer’s vehicle, he immediately reported the accident to his employer and understood that the employer would report the accident to its insurer. I note that nowhere in the respondent’s submissions does the respondent confirm or deny that it was contacted by the employer and informed of the accident.

18The respondent filed with its submissions adjuster’s log notes which it redacted based on privilege and reserves. These redactions include all entries prior to the filing of the application with the Tribunal on May 5, 2025 - eleven redactions in all, including the date the respondent was first notified of the accident. Its basis for the redactions is identified as “redactions up to the date of the Tribunal application”.

19I find it disingenuous of the respondent to argue that it was not notified “by the applicant” of the accident pursuant to section 32(1) until it received his OCF-1. The accident occurred with the employer’s vehicle which was insured through a policy between the employer and the respondent. There are eleven redacted entries in the adjuster’s log notes prior to the filing of the Tribunal application. Nowhere in the respondent’s submissions does it address whether or not the employer notified it of the accident. Based on the respondent’s omissions and the number of log note entries, I find that the applicant’s belief that his employer notified the respondent of the accident, is credible, believable and reasonable.

20I agree with the applicant, pursuant to Hussein, that the respondent would then have a positive duty to inquire and obtain information regarding the driver (employee) of the vehicle, and to provide the employee with the accident benefits package informing him/her of their right to claim accident benefits and the necessary forms to complete. But here, with no evidence to support that the respondent was notified by the employer, a finding that the respondent did not follow through with its obligations pursuant to Hussein would be speculative.

21Section 32(5) of the Schedule provides that an individual must submit a completed and signed application for benefits to the insurer within 30 days after receiving the required forms. Here, the accident benefits package was never sent by the respondent and therefore the 30-day timeline was never initiated. The applicant completed his OCF-1 form and provided it to the respondent on his own initiative.

22The respondent also submits that the applicant’s explanation is not credible because he had been involved in a previous accident on November 30, 2021, in which he sustained injuries, received physical and psychological treatment, and therefore was aware of the claims process. I am not persuaded by this argument because although the applicant concedes he sought accident benefits following the 2021 accident, it was not sought through his employer’s insurer. I find that the applicant’s knowledge of the claims process in 2021 does not contradict his explanation that he was not aware that he was entitled to benefits under his employer’s policy.

23I find that the applicant’s explanation for submitting his application for accident benefits on February 13, 2025 without prior notice to the respondent is believable, credible and reasonable. The accident occurred with the employer’s vehicle, which was insured through a policy between the employer and the respondent, and the applicant believed the employer had notified the respondent of the accident to deal with the property damage claim. I also find that the four-month delay in providing the completed OCF-1 is not a significant delay, particularly considering the time it would require for the applicant to obtain the accident report. Once the report was received, I find that the applicant acted diligently in submitting his application.

24An 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 respondent submits that it has suffered prejudice by the delay since it has been precluded from properly assessing and investigating the claim for the four-month period. In my view, the four-month delay is not significant, given the particular facts of this case. Given the minimal delay, I find there is limited prejudice to the respondent, and there is significant hardship caused by denying the applicant’s access to potential claims under the Schedule.

25Accordingly, I find that the applicant is not disentitled from receiving benefits and may proceed with his application.

ORDER

26The applicant may proceed with his application before the Tribunal.