Citation: Clement v. Definity Insurance Company, 2025 ONLAT 25-005227/AABS - PI

Licence Appeal Tribunal File Number: 25-005227/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:

Morgan Clement

Applicant

and

Definity Insurance Company

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR:

Trina Morissette, Vice-Chair

APPEARANCES:

For the Applicant:

Licia Lionessa, Paralegal

For the Respondent:

Karina Dziuba, Counsel

HEARD: In writing

OVERVIEW

1Morgan Clement, the applicant, was involved in an automobile accident on July 12, 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 8, 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 July 12, 2024, the applicant was the driver of a vehicle when he noticed smoke coming from the charging port of his mobile phone. The applicant stopped, exited the vehicle, and called 911 as the vehicle caught fire.

5The applicant is a self-employed electrician. Pursuant to a signed Statutory Declaration submitted, he sustained injuries to his head, shoulder and lower back due to his sudden deceleration.

ANALYSIS

6Section 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.

7Once 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.

8Section 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.

9The parties agree that on July 15, 2024, the applicant contacted the respondent and advised it of the accident that occurred on July 12, 2024. As this was within the 7-day timeframe for notification, section 32(1) of the Schedule was met.

10The respondent submits that despite numerous requests and follow-ups, the completed OCF-1 was only submitted on November 29, 2024 being 147 days (approximately five months) following the accident. The respondent argues that the applicant failed to provide a reasonable explanation for his delay and submits that the explanation provided is neither credible nor worthy of belief. The applicant should therefore be barred from proceeding with his application.

11The applicant submits that after he advised the respondent of the accident, he received the accident benefit package by email without any prior conversation or explanation as to what the forms meant, the duty to complete them within a specific time frame, and the consequences of late filing. The applicant also argues that follow-up communications he had with the respondent’s adjuster extended the 30-day time period to provide the completed OCF-1. The applicant therefore argues that he has provided a reasonable explanation for the delay in submitting his application.

12I note that both parties made errors with the identification of dates (e.g., noting 2014 when the correct date is 2024; 2025 when the correct date is 2024) in their written submissions. I recognize that these were simple errors and have considered their submissions within the context of the correct dates. Based on the parties’ submissions and the evidence submitted, I find the sequence of events as follows.

13On or about July 19, 2024, the respondent left a voicemail message with the applicant advising that the accident benefits package will be provided by email. The email of July 19, 2024 was submitted to the Tribunal and confirms that the accident benefits package was sent, and it notes that the application must be returned within 30 days.

14On August 16, 2024, the respondent contacted the applicant by telephone. During this conversation, the applicant confirmed that he received and reviewed the accident benefits package. Adjuster’s log notes submitted to the Tribunal indicate that the applicant advised the respondent that he was unsure if he wanted to proceed with his claim at that time. The applicant explained that he had been taking medication but had not been going to treatment. The applicant advised that he would be seeing his family physician and would make a decision shortly. This telephone conversation was followed up by an email to the applicant granting a discretionary extension of the 30 days (deadline September 16, 2024) failing which, “the claim will be closed”.

15On September 17, 2024, the respondent followed up with the applicant by telephone. The adjuster’s log notes indicate that the applicant was asked if he had decided whether he wanted to claim for accident benefits to which he responded that he wanted one more week to decide. The applicant was advised by the respondent to send an email if he decided to not pursue a claim or submit a completed OCF-1 if he chose to proceed.

16Having not received a response from the applicant, the claim file was closed on October 17, 2024, as reflected by the log notes.

17On October 30, 2024, forty-three days following their last communication, the applicant submitted a treatment plan in the amount of $3,520.00 for physiotherapy services. The respondent submits that upon receipt of this treatment plan, a voicemail message was left with the applicant advising that the file had been closed due to his failure to submit a completed application.

18I note that the respondent’s submission is not supported by the evidence; there is no adjuster’s log note confirming that a voicemail was left. Rather, the adjuster’s log notes show that on November 13, 2024, an Explanation of Benefits (“EOB”) was sent to the applicant denying the treatment plan and explaining that there was insufficient medical documentation provided that would support that the applicant’s injuries should be treated outside the minor injury guideline (“MIG”). The EOB states:

If you disagree with this determination, please provide medical documentation that confirms your inquiries are not “minor” […] Upon receipt of your medical records, if the information warrants it, we will review our decision regarding the above-mentioned treatment plan as well as if Section 44 Insurer’s Examinations would be necessary at this juncture.

The EOB did not make mention of the outstanding OCF-1.

19An adjuster’s log note confirms that on November 20, 2024, following receipt of the applicant’s Treatment Confirmation Form (OCF-23), a voicemail message was left with the applicant advising that the treatment plan submitted had been approved but that a completed OCF-1 was required before any invoices could be paid.

20On November 29, 2024, the applicant submitted a completed OCF-1 to the respondent.

21On December 13, 2024, the respondent requested additional information of the applicant including a reasonable explanation in writing for the delay in notifying of his intention to submit a claim. An adjuster’s log note of the same date indicates that the respondent requested that this explanation, as well as a completed Statutory Declaration and additional medical information, be submitted by December 27, 2024.

22On December 18, 2024 – nine days prior to the December 27, 2024 deadline noted above – the respondent sent an EOB to the applicant advising that the treatment plan was denied because no OCF-1 was filed within the required timeline. The EOB states that after providing the applicant with the accident benefit forms, it had “tried to reach [the applicant] via phone between July 15, 2024 – August 15, 2024 without success”.

23Regarding the “unsuccessful attempts” at reaching the applicant between July 15 and August 15, 2024, the adjuster’s log notes indicate that a voicemail message was left on July 18, 2024 in regards to a car rental. The applicant returned this call on July 19, 2024 as discussed above. Also, in an adjuster’s log note dated August 16, 2024, a summary of the steps taken on this claim are listed and include an entry that states “had contacted him twice and left 2 v/m”, however, aside from the voicemail left on July 18, 2024 (which the applicant returned on July 19, 2024) the adjuster’s log notes show no other voicemail. The EOB makes no reference to the extension of the 30-day timeframe given on August 16, 2024 (to September 16, 2024) or any further communication between the parties.

24By January 13, 2025, the applicant retained counsel. In a letter to the respondent dated January 13, 2025, the applicant’s counsel states:

Further to your correspondence dated December 13, 2024, please note our client previously advised [the respondent] that he would proceed with a claim for accident benefits if the medications/treatment prescribed by his family doctor failed to relieve his pain. Unfortunately, he continues to ingest medication and his injuries have worsened. This compelled [the applicant] to file an accident benefits application to obtain further treatment and restore his pre-accident condition.

25In his written submissions on this preliminary issue, the applicant adds that it was his belief that the 30-day timeline had been extended. In communications he had with the adjuster on August 16, 2024 (30-day extension), September 17, 2024 (one-week extension) and the voicemail message of November 20, 2024 (approving the treatment plan but advising it was not payable until receipt of the OCF-1), the applicant submits that the respondent allowed him additional time to complete and submit his OCF-1, which he ultimately did on November 29, 2024.

26The respondent submits that this justification is inadequate. The applicant had an obligation to submit an application within 30 days and this was repeatedly and expressly communicated to him. The respondent argues that the applicant disregarded his statutory requirement and instead adopted a “wait-and-see” approach.

27The respondent also submits that the applicant’s explanation is undermined by his own records. The respondent argues that the applicant did not seek independent treatment from his family physician until October 19, 2024 – over three months post-accident – and while he attended his family doctor twice (July 16, 2024 and August 8, 2024), the clinical notes and records of these dates confirm that neither visit was connected to the accident. It is therefore not credible that he was waiting to see if his family doctor’s treatment would be effective because there was no such treatment prescribed.

28The clinical notes and records of the applicant’s family physician show that it was on October 19, 2024 that the applicant visited his doctor regarding his “ongoing back pain” caused by the accident. At that time, his family physician referred him to physiotherapy. The respondent points to this visit to support its argument that the reason for the applicant postponing the submission of his OCF-1 was actually because he was concerned that claiming benefits would increase his insurance premium. The doctor’s note from that day indicates that he discussed with the applicant that personal injury claims do not affect insurance premiums.

29The respondent further submits that it fulfilled all of its statutory obligations under the Schedule and complied with the guidance set out in Hussein by proactively inquiring on multiple occasions about the applicant’s intention to pursue accident benefits. Despite these repeated efforts, it submits that the applicant failed to provide any clear indication of his intent until November 29, 2024 when he ultimately submitted a completed OCF-1. Contrary to Hussein where the respondent failed to act, here, the applicant failed to act.

30I acknowledge that the respondent made attempts to assist the applicant with his obligation to submit his OCF-1. I also acknowledge that the respondent provided on at least one occasion, an expressed discretionary extension of the 30-day deadline. Based on the evidence, I find that this extension was followed by an additional one-week extension provided on September 17, 2024. The respondent closed the claim file on October 17, 2024 but this was not communicated to the applicant. Instead, in an EOB of November 13, 2024, following receipt of a treatment plan, the respondent advised the applicant that the treatment plan was denied due to lack of medical documentation; there is no mention of the outstanding OCF-1. The EOB advised the applicant to provide the necessary medical evidence to support that his injuries were not subject to the MIG. I infer from the evidence submitted that the applicant provided the necessary documentation since, on November 20, 2024, the respondent advised the applicant that the treatment plan was approved but that invoices would not be paid until a completed OCF-1 was submitted. Nine days later, the applicant submitted his OCF-1.

31I find that the applicant has a reasonable explanation for the delayed submission of his application. The applicant submits, in part, that it was his belief that subsequent communications with the adjuster extended the 30-day time period. Based on the information above, more specifically the expressed 30-day extension and the additional one-week extension, the respondent extended the 30-day timeline. Contrary to the respondent’s submission, the evidence does not support that it communicated to the applicant that it had closed the claim file on October 17, 2024. Rather, the evidence shows that the respondent provided the applicant additional time to submit his OCF-1 through its EOB of November 13, 2024 and subsequent voicemail of November 20, 2024.

32Pursuant to K.H. I must also balance the prejudice to the insurer, the hardship to the claimant, and whether it is equitable to relieve against the consequences of the failure to comply with the time limit. Here, I find that the hardship to the applicant outweighs the prejudice to the respondent. The respondent has been aware since at least October 30, 2024 with the receipt of the applicant’s treatment plan that he wished to pursue his claim. The respondent received medical documentation pertaining the applicant’s impairments – evidenced by its approval of the treatment plan – and the applicant participated in an Examination under Oath on March 20, 2025 which provided additional information to the respondent. The applicant, on the other hand, would face financial hardship for being off work since the date of the accident until August 11, 2025.

33Accordingly, I find that the applicant has a reasonable explanation for the delayed submission of his application, pursuant to section 34 of the Schedule. The applicant is not disentitled from receiving benefits and may proceed with his application.

ORDER

34The applicant may proceed with his application before the Tribunal.