Licence Appeal Tribunal File Number: 24-013313/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:
Shane Burton
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATORS:
Gordon Stencell
Tami Cogan
APPEARANCES:
For the Applicant:
Kaitlyn MacDonell, Counsel
For the Respondent:
Bruce Keay, Counsel
Court Reporter:
Guido Riccioni
HEARD by Videoconference:
July 22 and 23, 2025
OVERVIEW
1Shane Burton, the applicant, was involved in an automobile accident on June 7, 2023, and sought benefits 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, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The preliminary issue to be decided is:
i. 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?
SUBSTANTIVE ISSUES
3The substantive issues to be decided are:
i. Is the applicant entitled to $5,475.91 for physiotherapy services, proposed by Wellington Physiotherapy Associates, in a treatment plan/OCF-18 (“plan”) submitted June 28, 2024?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The result of the preliminary issue is:
i. The applicant is not barred from proceeding with this application because he had a reasonable explanation for the delay.
5The results of the substantive issues are:
i. The applicant is entitled to $5,475.91 for physiotherapy services, proposed by Wellington Physiotherapy Associates, in a plan submitted June 28, 2024.
ii. The respondent is liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.
iii. The applicant is entitled to interest on any overdue payment of benefits.
PROCEDURAL ISSUES
Motion to add witnesses and a report
6On June 27, 2025, the applicant filed a motion seeking to add the applicant’s former partner and his psychiatrist, Dr. Gerber, as witnesses. The motion was heard at the start of the hearing. Neither witness was listed in the Case Conference Report and Order (“CCRO”). Both witnesses were on the final witness list that the applicant served on the respondent more than 21 days prior to the hearing.
7The applicant submitted his former partner’s testimony is necessary because she can attest to his overall state-of-mind which caused the delay in submitting his application. The applicant also sought to add Dr. Gerber’s report dated June 4, 2025, to which he will testify. The applicant submits the report provides a medical basis for the explanation for the delay in submitting the accident benefits application.
8He submits that although the final date to deliver responsive documents in accordance with the CCRO was May 11, 2025, the psychologist’s report was disclosed on June 11, 2025, which is 41 days before the hearing. The applicant submits that allowing the witness and report will not prejudice the respondent because it is not a s. 25 report. Rather, it was requisitioned explicitly for the use at the hearing.
9We note the applicant’s summonses were denied for both of the witnesses because the summons requests are inconsistent with the Case Conference Report and Order (“CCRO”). The respondent submits that the witnesses were not identified in the CCRO, and the document was not served within the required timelines. The respondent submits it would be prejudiced by the admission of the report because it has not had the opportunity to seek a responsive report.
10The applicant submitted that: “If the applicant is not permitted to rely on the late-disclosed report or call the witness at the hearing, he will be significantly prejudiced, as he will be deprived of critical evidence necessary to establish his explanation for the delay—evidence that goes to the heart of the issue before the Tribunal.” We note that the CCRO witness list is not a final list, and the applicant did file a motion to include the witnesses who he sought to add. However, it is concerning that the applicant sought out new evidence after the case conference, not only to obtain it – but to have it created, and did not provide the respondent with notice that it was forthcoming, or even of its existence, until it was too late for the respondent to prepare a reply, and now the applicant is seeking protection of procedural fairness.
11We have considered the submissions of both parties. We find that Dr. Gerber’s report of June 4, 2025, will be admitted into evidence in accordance with Rule 9.3, because the applicant would be prejudiced by the exclusion of the evidence based on its presumptive relevance to the proceeding. We find that the respondent has had sufficient opportunity to prepare to cross-examine Dr. Gerber on his report and we are satisfied that this opportunity overcomes the prejudice to it as a result of the late disclosure.
12The applicant’s former partner will not be allowed as a witness because she cannot attest to the applicant’s state of mind. Her testimony about his physical condition would be repetitive and is not deemed necessary to assist the panel in its decision making.
ANALYSIS
Background
13On June 7, 2023, the applicant was involved in a motor vehicle accident. He was extracted from the vehicle with the jaws of life. The applicant was intubated for life saving measures. He was in a coma for four days, had two brain bleeds, right hand degloved, lung punctures, damage to the C8 and T12 areas of the spine, nerves dislocated from the spine, nerve pain, muscle pain, loss of function to upper left arm, injured his ankle, and he had several lacerations requiring stitches. As a result of the accident, he had plastic surgery, and again an attempted corrective surgery to reattach the dislocated nerve to his spine. Despite the nerve re-attachment surgery for his left arm, he did not regain function.
Preliminary Issue
We find that the applicant has established a reasonable explanation for the delay
14The respondent raised a preliminary issue that the applicant is barred from proceeding with his claim because he did not comply with the timelines set out under s. 32(5) of the Schedule.
15There is no dispute that the applicant notified the respondent of the accident within 7-days. There is also no dispute the that the OCF-1 was late as it was filed on June 4, 2024.
16Pursuant to s. 32(2) of the Schedule, once 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 benefits and information on the election relating to specified benefits. Pursuant to s. 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.
17However, s. 34 of the Schedule provides that the applicant’s failure to comply with the time limit in s. 32 does not automatically disentitle him to benefits if he has a reasonable explanation for the delay.
18Since there is no dispute that the OCF-1 was late, our analysis will focus on whether the applicant has a reasonable explanation for the delay.
19The respondent submits that on June 20, 2023, the initial claims adjuster, Josh Lewis, spoke to the applicant on the phone and emailed the application package including the OCF-1. The respondent submitted that the OCF-1 was filed late, on June 4, 2024, and the applicant forfeited his right to accident benefits as a result. The respondent relies on the Examination Under Oath (“EUO”), the applicant’s property damage claim for the accident, and the activation of his collateral benefits as evidence that he was capable of filing an OCF-1 within the prescribed time period under the Schedule. It also relied on the log notes of July 10, 2023, reflecting communication with the applicant during which he expressed that he understood the need to submit the OCF-1, and when he stated he would “get to it”.
20The applicant submitted that the OCF-1 was not submitted any earlier because the respondent failed to communicate that an OCF-1 was necessary until June 3, 2024. Upon understanding the urgency to submit an OCF-1 and that not doing so risked his benefits, on June 3, 2024, the applicant requested help from the respondent to complete the forms. The applicant submits that he did not receive the assistance he required, which further delayed his application because the respondent said it could guide him to complete the forms but not complete them. Next, the applicant asked for help in person, and the applicant was told someone would be sent to assist but he must be the one to fill in and sign the form. The applicant argues he was physically incapable of doing so.
21The interpretation of “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada, 2003 ONFSCDRS 92 (“Horvath”), and reiterated by the Tribunal in K.H. vs Northbridge, 2019 CanLII 101613 (ON LAT). The guiding principles are summarized 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 for “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.
As 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.
22The first guiding principle in Horvath sets out that an explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed. There is no dispute about the severity of the applicant’s injuries, and we find it credible and worthy of belief that his brain injury and lack of use of upper extremities were barriers to his ability to complete and submit the OCF-1 in a timely manner.
23The second guiding principal of Horvath sets out that the onus is on the insured person to establish a “reasonable explanation”.
24We find that the information conveyed to the applicant in the email on June 20, 2023, did not suggest any urgency for submitting the OCF-1, nor did it provide any timelines for doing so, or inform the applicant that not sending the form would result in a forfeiture of benefits. Rather, the correspondence indicates that the form is needed before any payments on the claim can be made. We accept the applicant’s testimony that he was relying on extended health care benefits, the assistance being provided to him by his partner for personal care, and that he did not initially require the respondent’s payment of benefits, and he did not understand the necessity to submit the OCF-1 within 30 days. We note that the collateral benefits must be exhausted before the accident benefits are payable.
25We heard testimony from Mr. Lewis, and the log notes corroborate that after his phone conversation with the applicant on June 20, 2023, due to the severity of the applicant’s injuries, the file was transferred to a senior claims adjuster, Brittany Dale. Mr. Lewis did not speak with the applicant again.
26We heard evidence from Ms. Dale, and the log notes corroborate that she followed up on June 29, 2023, and June 30, 2023, by phone, and voice messages were left on both occasions. On July 4, 2023, she left a voice message and also sent an email. On July 6, 2023, and July 10, 2023, she left voice messages. On July 10th, the applicant returned the phone call. We note that the adjuster’s log notes indicate that Ms. Dale spoke to the applicant about what benefits were available to him. The applicant conveyed that he did not think he will need assistive devices, and his wife is a nurse and providing him with help. Further he “will work on OCF-1 and when ready to proceed claiming for injuries will contact.” Ms. Dale testified that she had not reviewed with the applicant that there was a deadline for submitting the OCF-1. Also, at no time did she confirm if the applicant had received or was able to access the OCF-1 sent via email on June 20, 2023. We find this further supports that the applicant had not been informed of the risk of forfeiting his accident benefits if he failed to submit the OCF-1.
27We are not persuaded by the respondent’s argument that it had contacted the applicant multiple times but was ignored. Rather, we find that by the respondent reaching out to Elora Physio on July 7, and July 24, 2023, it corroborates that another party was also having difficulty reaching the applicant by telephone. Also, the respondent asked Elora Physio to discuss with the applicant that the respondent is trying to get a hold of him, not that his ability to claim accident benefits was at risk. We note that log notes reference leaving phone messages and only indicating the respondent’s desire to discuss, explain, get an update on the status of the claim, and offer to be supportive and available should the applicant have questions. We note that the respondent did not attempt to contact the applicant via regular mail.
28The log notes indicate that on May 31, 2024, Ms. Dale spoke with Technical Support, who recommended sending the applicant a letter advising that he is in violation of the time requirement to return the OCF-1 and that the file will be closed if he does not respond within ten business days. The letter was sent via email on June 3, 2024. The letter provided the applicant with only four business days to respond. That same day, upon receiving the email, the applicant contacted the respondent by phone and email and inquired what information the respondent required. We find this evidence supports the applicant’s testimony that he had not previously been informed of the consequences of not submitting the OCF-1, and that once informed he acted immediately to ensure he did not forfeit his benefits.
29Ms. Dale testified, and the log notes support, that on June 3, 2024, the applicant was told an OCF-1 needed to be completed and to provide a reasonable explanation for the delay in pursuing his claim. We find that the log notes strongly suggest that the applicant did not understand the information being conveyed to him. The testimony of the applicant and Ms. Dale confirm that on June 4, 2024, the applicant told the respondent he has no email from the respondent that he can find and requested it be sent to him via email, which the respondent did. We find that this also supports the applicant’s testimony that he had not received the original application package from the respondent on June 20, 2023.
30We heard testimony from the applicant and Ms. Dale that the respondent offered the applicant assistance over the phone to complete the OCF-1. The applicant clearly indicated he needed someone to complete the form for him. Ms. Dale informed the applicant that the applicant must complete the form himself, and physically sign it, requiring it to be printed, signed and then scanned. Ms. Dale testified that this is a requirement to demonstrate the applicant’s intent to claim accident benefits. The respondent offered someone to attend in-person to assist with the forms, but again, it would only provide guidance as the applicant would have to fill and sign the form himself.
31The respondent could not point to any provision within the Schedule that a respondent is barred from completing an OCF-1 on behalf of an applicant nor that a digital signature is not sufficient. We did not find the respondent’s submission persuasive that the applicant must complete and physically sign the OCF-1 to demonstrate an intention to apply for accident benefits.
32We have not heard persuasive evidence that the applicant received or accessed the package sent to him via email. According to the adjuster’s log notes for all phone messages and email messages, the applicant framed the contact as “a customer service check-in”, or to explain the process of making an Accident Benefits claim and to assist with making a claim. At no point is it documented that an adjuster conveyed to the applicant that he was in jeopardy of being barred from accident benefits. Once the OCF-1 was re-sent and the applicant was informed that his right to accident benefits would be forfeited if he did not return the OCF-1, the applicant took immediate action.
33The applicant testified, and we were persuaded that because of his brain injuries and other physical trauma, he was unable to initiate claims for himself. In the instance of the property damage claim, that was done by the car rental company, and the collateral benefits were initiated by the employer with assistance from his partner. We find that the applicant has established a reasonable explanation for the delay in submitting his OCF-1.
34We have also taken into account the personal characteristics and reasonable person standard set out in Horvath. We accept the applicant’s testimony that he was severely injured, and his accident-related injuries prohibited him from using his writing hand. Further, his brain injuries rendered computer use unavailable to him because he was susceptible to headaches triggered by light. We did not hear evidence that an OCF-1 was mailed to the applicant, or provided in an accessible format, considering his injuries and difficulty using the computer. We are not persuaded the applicant has forfeited his rights to a claim. There is no evidence that the respondent asked who filed the applicant’s property damage claim for the accident or collateral benefits claim or how they were filed. We find the applicant provided a reasonable explanation of how other claims were filed and why no claim was filed with the respondent.
35We have considered the balancing of prejudice to the insurer versus hardship to the claimant and whether it is equitable to relieve against the consequences of the failure to comply with the time limit. We heard testimony from Ms. Dale that without the OCF-1, the respondent was unable to conduct any assessments of the applicant. We find that the medical records pre and post accident are available to the respondent, and assessments of his accident-related injuries can be conducted. We find that any prejudice to the respondent is significantly outweighed by the hardship to the applicant that would be caused by denying the applicant’s access to a claim under the Schedule, especially considering the life-altering injuries suffered in the accident. We find the applicant may proceed with his claim.
36We find that the applicant provided a reasonable explanation for delay under s. 34 and he may proceed with his application.
Section 55
37Pursuant to s. 55(1)1 of the Schedule, an insured person shall not apply to the Tribunal under subsection 280(2) of the Insurance Act if the insured person has not submitted an application for the benefit within the time prescribed in s. 32.
38Having found that the applicant has provided a reasonable explanation for the delay in filing his OCF-1, it follows that s. 55 does not apply.
SUBSTANTIVE ISSUES
ISSUE 1: Physiotherapy Treatment Plan
39We find the applicant is entitled to $5,475.91 for physiotherapy services.
40To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
41We have reviewed the treatment plan completed by Daniel Frias, physiotherapist, submitted on June 28, 2024. The goals of the treatment are pain reduction, increase in strength, and return to activities of normal living. The modalities are amor and strengthening exercises, functional activities, and pain scale. The proposal includes 1 assessment, 24 physical rehabilitation sessions, 24 acupuncture sessions, 5 telephone consults with other health care team members, 24 documentation support activities, 8 massage therapy sessions, plus a compression sleeve, cervical pillow, Therabands, and a Theraball at a cost of $5,475.91.
42The applicant submits that the records of Greengate Medical Centre, support the need for physical rehabilitation. On January 16, 2024, Dr. Huma Zia Ul Haq made a referral for rehabilitation. He also made a referral on September 23, 2024, and a re-referral was made for sports medicine treatment on November 4, 2024.
43We did not hear submission from the respondent regarding the treatment plan.
44We find that the OCF-18 is corroborated by contemporaneous records supporting the need for physiotherapy services, specifically the recommendation of Dr. Ul Haq. In our view, the treatment plan is both reasonable and necessary for the applicant’s recovery from his accident-related injuries because the treatment modalities outlined support the treatment goals of pain reduction, increase in strength, and return to activities of normal living. Given the extent of the applicant’s injuries we accept that the duration of treatment and cost are also reasonable and necessary.
45On the balance of probabilities, the applicant has proven the treatment plan for physiotherapy is reasonable and necessary. Therefore, he is entitled to the treatment plan in dispute.
Interest
46Pursuant to s. 51 of the Schedule, the applicant is entitled to interest on any overdue payment of benefits.
47We find the applicant is entitled to interest on the treatment plan for physiotherapy services.
Award
48We find the applicant is entitled to an award of 50% of the treatment plan for physiotherapy services under s. 10 of Reg. 664.
49The applicant seeks an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
50The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this criterion.
51The applicant submits the award should be the maximum allowable in consideration that a reasonable explanation was ignored in favour of a complete denial of benefits.
52The respondent submits the denial was proper given the failure to submit the OCF-1 for nearly one year.
53We find that the respondent acted unreasonably when it denied benefits to the applicant because, regardless of intent, the respondent had an imprudent mindset when it initiated engagement with the applicant because it did not take into consideration the applicant’s initial and evolving physical and cognitive limitations resulting from the motor vehicle accident.
54We find that the respondent did not reasonably attend to or accommodate the barriers caused by the applicant’s injuries for supporting the completion of his OCF-1. We find the respondent was imprudent in its choice to send the applicant documentation via electronic means when it was aware the applicant had severe head trauma and limited use of upper extremities to independently access a digital communication initially and for some time ongoing. We heard testimony from the senior claims adjuster that between taking carriage of the file in June 2023 and May 2024, that no confirmation was made as to whether the applicant had received or been able to access the documentation that was sent to him. The respondent was inflexible in not attempting follow-up communication by any means other than electronic means when it was not receiving a response. We find the respondent was stubborn in its refusal to provide physical assistance in completing the OCF-1. The respondent was immoderate in refusing to accept an electronic signature.
55The applicant did not only deny the treatment plan in dispute, but rather, by rejecting the applicant’s explanation, access to all accident benefits were delayed.
56The quantum of a s. 10 award should be proportionate to the overall length of the delay. One year has lapsed since the applicant sought access to his accident benefits.
57In the case of Persofsky v. Liberty Mutual Insurance Company (FSCO 2003), The Director’s Delegate stated that the amount of the special award should be considered within the context of the Insurance Act, but according to the principles of: rationality and proportionality. Rationality refers to the need to relate the particular facts of the case to the underlying purposes of the legislation. In other words, what amount is large enough to further the goals of punishment and deterrence, but no larger than is needed to serve that purpose? Proportionality refers to the need to ensure that the consequences imposed on the insurer are rationally related to the misconduct at issue. The award should be proportionate to the following six factors:
i. the blameworthiness of the insurer's conduct;
ii. the vulnerability of the insured person;
iii. the harm or potential harm directed at the insured person;
iv. the need for deterrence;
v. the advantage wrongfully gained by the insurer from the misconduct; and
vi. take into account any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct.
58Blameworthiness of the insurer’s conduct. We find that the respondent gave its first notice of risk of forfeiture of benefits on June 3, 2024, when it made a request for the OCF-1 and a reasonable explanation for the delay. The applicant was informed that he had three days to respond, or his file would be closed. We note that the adjuster’s log notes confirm that the adjuster’s technical advisor had recommended giving the applicant ten business days to respond, which was not provided. The applicant sought assistance with the application, however, the respondent refused to provide the physical assistance the applicant required to complete the form. Even after the applicant submitted his OCF-1 on June 4, 2024, and the applicant provided his explanation, in detail, several times, verbally and in writing, the applicant’s claim was still denied.
59The vulnerability of the insured person. We find, based on the applicant’s brain injury that he was vulnerable in the administrative process of seeking accident benefits.
60The harm or potential harm directed at the insured person. We have heard persuasive evidence that the applicant has suffered life altering injuries and may require long-term medical and rehabilitation benefits of which he was denied.
61The need for deterrence. The respondent provides a product and service to its customers. As such, we find that the respondent has a responsibility to communicate with its clientele in a mode that is accessible to them, not merely what is convenient for the adjuster.
62The advantage gained by the insurer from the misconduct. We find that the delay in providing accident benefits provides financial gain for the respondent because it was not required to pay out benefits to which the applicant was entitled for over one year.
63We find that the applicant is entitled to the maximum allowable as an award under s. 10 of Reg. 664, being 50 percent of the total benefits for which the applicant claimed to the date of this application. This amount is $2,737.96, plus applicable interest.
ORDER
64For the reasons above, we order the following:
i. The applicant is not barred from proceeding to a hearing and may proceed with the application.
ii. The applicant is entitled to $5,475.91 for physiotherapy services, proposed by Wellington Physiotherapy Associates in a plan submitted June 28, 2024.
iii. The respondent is liable to pay an award under s. 10 of Reg. 664 in the amount of $2,737.96, plus interest, because it unreasonably withheld or delayed payments to the applicant.
iv. The applicant is entitled to interest on any overdue payment of benefits.
Released: October 31, 2025
Gordon Stencell
Adjudicator
Tami Cogan
Adjudicator