Licence Appeal Tribunal File Number: 24-006456/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:
Kim Benoit
Applicant
and
Sonnet Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Yoni Silberman, Counsel Kevin Hale, Counsel
For the Respondent:
Karly Lyons, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Kim Benoit, the applicant, was involved in an automobile accident on May 8, 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, Sonnet Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is:
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?
RESULT
3The applicant is not barred from proceeding with her application.
ANALYSIS
Background and Parties’ Positions
4The applicant was involved in an accident on May 8, 2023, as a passenger in a vehicle being driven by her husband. The respondent submits that it did not receive any report of the accident until the applicant’s husband called its property damage line on October 14, 2023, more than five months after the accident. It submits that this is well-outside the seven-day timeline prescribed in s. 32(1) of the Schedule, and that the applicant has not provided any reasonable explanation for the delay.
5The respondent further submits that while the applicant argues that her husband placed a theoretical “earlier call”, it has no record of such a call. Moreover, even if this call took place, it submits that the applicant is not arguing that injuries were reported at the time, but rather, the purported call related to only property damage. The respondent relies on the Tribunal decision Jakupovic v. Intact, 2023 CanLII 122890 (ONLAT), to argue that an insurer is not required to try to ascertain whether a claimant is seeking accident benefits when only property damage or an accident was being reported.
6Although the applicant agrees that the first documented call to the respondent was in October 2023, she submits that her husband actually called the respondent to report the accident on the day of the accident. Although the respondent claims to have no record of such a call, the applicant submits that its own adjuster conceded that such a call occurred. Given that the accident was reported the day of the accident, the applicant argues that the respondent had an obligation to send an accident benefits package at that time, which it failed to do.
7Alternatively, the applicant argues that even if it is determined that the call on the day of the accident did not take place, she has a reasonable explanation for the subsequent five month delay. The applicant submits that she was unaware of the accident benefits process, that she was a vulnerable individual with pre-accident mental health and cognitive issues, and that she was not aware of the extent and severity of her injuries until they had progressed.
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 benefits and information on the election relating to the specified benefits, if applicable (s. 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 more recently reiterated in K.H. vs Northbridge, 2019 CanLII 101613 (ON LAT). 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.
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.
Did the applicant comply with s. 32(1) of the Schedule?
11I find that the respondent has not met its onus to prove that the applicant was non-compliant with s. 32(1) of the Schedule.
12Although the respondent argues that there is no evidence that a call was placed on the day of the accident, I am persuaded by the applicant’s evidence that there is a reasonable likelihood that her husband had called the respondent. I agree with the respondent that the adjuster’s log notes do not show a call placed on the day of the accident. However, the applicant has submitted email correspondence between her counsel and the respondent’s claims adjuster. In this correspondence the adjuster stated that the applicant’s husband “was able to immediately call in the PD loss following the accident”.
13The respondent submits that the claims adjuster was mistaken in these emails, that there was no property damage and that the adjuster no longer works for the respondent. It argues that the applicant has not led any evidence to establish that the earlier call took place, other than the two emails from the adjuster. However, I agree with the applicant that in these emails, the respondent’s adjuster on two occasions clearly stated that a call had occurred immediately after the accident.
14Given that the respondent raised the preliminary issue of the applicant’s compliance with s. 32(1) of the Schedule, the onus rests with the respondent to establish that the applicant failed to comply with the seven-day timeline. I find that it has not met its burden on this point.
15I further am not persuaded by the respondent’s argument that even if the applicant’s husband had called immediately after the accident, only the property damage claim was discussed and this was not sufficient notice as required by s. 32(1). The respondent argues that it was not sufficient for the applicant to report the accident, but rather, she was required to report her injuries at the time. The respondent relies on the Tribunal decision Jakupovic to argue that it had no obligation to try to ascertain whether the applicant was seeking accident benefits.
16I agree with the applicant that in the recent decision Hussein v. Intact Insurance Company, 2025 ONSC 842, the Divisional Court found that the notice requirement of s. 32(1) was met when the insured had advised the insurer that he had been in an accident. The Court went on to state that at this point, the insurer should have inquired whether the applicant had sustained any injuries, clarified which benefits the insured was seeking, and sent the necessary application forms and explanation of benefits as required by s. 32(2).
17Moreover, I note that the Hussein decision is an appeal of the Tribunal decision Jakupovic, relied upon by the respondent. The finding in Jakupovic, that it was not sufficient to simply report an accident, and that an insurer had no obligation to inquire whether the applicant was seeking accident benefits, was expressly refuted by the Divisional Court. I find the reasoning in Hussein persuasive, and note that this decision is binding upon me. The present matter has similar factual circumstances, where the applicant’s husband notified the respondent of the accident soon after the accident took place.
18Although accident benefits were not raised at that time, I agree with the reasoning in Hussein that this was sufficient notice to the respondent of an intention to seek benefits, pursuant to s. 32(1). At this point, the respondent could have clarified whether the applicant had been injured and whether she was seeking accident benefits.
19Given that I have found that the applicant was compliant with s. 32(1) of the Schedule, the respondent has not established that the applicant is statutorily barred from proceeding with her application.
CONCLUSION AND ORDER
20The applicant may proceed with her application to the substantive issue hearing.
Released: March 25, 2025
Ulana Pahuta
Adjudicator