Licence Appeal Tribunal File Number: 23-006025/AABS-PI
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:
Brandon Simmers
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Sherilyn Pickering, Counsel
For the Respondent:
Jonathan Heeney, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Brandon Simmers (“the Applicant”) was involved in an incident on March 2, 2019 and sought benefits from Wawanesa Mutual Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“the Schedule”).
2The Applicant was denied benefits by the Respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
- Is the Applicant barred from proceeding with his claim for benefits because he never submitted the application for benefits (OCF-1) within the time prescribed in the Schedule?
RESULT
3The Applicant may proceed with his application for benefits.
BACKGROUND
4The Applicant was in a prior motor vehicle accident in 2011 in which he sustained herniated discs in his neck which led to a cervical discectomy and instrumented fusion surgery in 2013. He also developed a Major Depressive Disorder, Panic Disorder, and Chronic Pain Disorder from that accident. He had ongoing pain following the accident and treated it with a Fentanyl patch. The Applicant’s insurer for the 2011 accident deemed his impairments to be catastrophic, as outlined in the Schedule. In 2018, he overdosed on Gabapentin and Tizanidine and was hospitalized as a result.
5For the subject accident of March 2, 2019, the Applicant was the driver of a vehicle that hit a snowbank and a concrete barrier, became airborne, and came to rest off the roadway. He sought no medical attention at the time of the accident but, instead, went to a fast-food restaurant to use the payphone because his mobile phone was not working. The Applicant then took a taxi from the fast-food restaurant in Scarborough to his family home in London.
6The Respondent was notified of the accident on March 4th or 5th, 2019. According to the adjuster’s log notes, the Applicant’s mother called the Respondent to report the accident and to request a rental vehicle. A call log from March 6th, 2019, notes that the Applicant’s mother was unsure if the Applicant was okay, but said he seemed to be fine. By the following day, according to the log notes, the vehicle involved in the subject accident was deemed a total loss.
7The Applicant spoke with the Respondent via telephone on March 14, 2019. According to the log notes, the Applicant reported no injuries but was confused to the location and mechanism of the accident – he thought it occurred in Sudbury instead of Scarborough, he was unsure of the time of the accident, or what road he was on when it occurred. He confirmed that the airbags deployed and also advised that a fox ran onto the road, that he did not realize the road was ending, and hit a patch of ice. However, the police report for the accident does not include reference to a fox or ice.
8The Applicant’s mother continued to interact with the Respondent regarding the total loss of the vehicle involved in the incident. It appears that the property claim involving the repair of the vehicle resolved by June 14, 2019. There is no indication in the log notes that the Respondent and the Applicant’s mother ever discussed the Applicant’s health status again.
9At no point did the Respondent provide the Applicant with an accident benefits package following its interactions with him or his mother.
10No claims activity occurred between the resolution of the total loss of the vehicle in 2019 and February 23, 2021. On February 23, 2021, the Applicant’s father contacted the Respondent and advised that he wished to open a claim for the Applicant because he felt that he may have sustained a brain injury in the accident. In return, according to the log notes, the Respondent requested an OCF-1, medical documents, and a statement from the Applicant in order to proceed with the claim. The next day the Respondent called the Applicant’s father and asked if he had a power of attorney to act on behalf of the Applicant and that one would be required. The Applicant’s father advised that the Applicant retained counsel and would address the issue with them. There is no record in the log notes indicating that the Respondent sent an accident benefits package to the Applicant or his father following these telephone calls.
11The Respondent called the Applicant’s father on March 10, 2021 to advise that it had not heard from his counsel. Another call of the same nature occurred on April 5, 2021. Again, there is no indication that an OCF-1 was sent to the Applicant or his father following these calls.
12The Applicant, through his counsel, submitted an OCF-1 on March 19, 2021, completed by the Applicant’s father. However, the OCF-1 was delivered to the wrong insurer, causing a priority dispute, which was eventually resolved by September 24, 2021.
13An examination under oath (“EuO”) was attempted with the Applicant on June 3, 2021, but he was noted to not have fully participated in the EuO, according to the Adjuster’s log notes.
14The Applicant’s father became the Applicant’s power of attorney on July 5, 2021.
15The Applicant’s father participated in an EuO on February 7, 2022. The Applicant participated in an EuO on February 16, 2022.
16The Respondent denied the Applicant’s claim for accident benefits by letter faxed on May 13, 2022. The stated reason was that there is no reasonable explanation for the delay in his application for accident benefits and that he did not sustain any injuries or impairments as a result of the accident.
THE LAW
17Section 32(1) of the Schedule provides that a person who intends to apply for one or more benefits shall notify the insurer no later than the seventh day after the circumstances that give rise to the entitlement to the benefit, or as soon as practicable thereafter.
18Section 32(2) of the Schedule provides that the Respondent shall promptly provide the person with the appropriate application forms, a written explanation of the benefits available, information to assist the person in applying for benefits, and information on the election relating to income replacement, non-earner, and caregiver benefits, if applicable. This is colloquially known as the “AB package”.
19Section 32(5) of the Schedule provides that the Applicant submit a completed and signed application for benefits within 30 days of receiving the application.
20When interpreting these sections, I must consider that the Schedule is consumer protection legislation. 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 also provided that insurers should send out the necessary forms and an explanation of benefits payable, to comply with section 32(2) of the Schedule, once it is notified of an accident and potential claim for benefits.
21To the Applicant, Hussein provides that an insurer can be presumed to know that if one of their insureds has an accident and is injured, they will want to make a claim for benefits, or that a reasonable insurer would assume that an insured person who has been in an accident intends to access all the benefits available to them under their policy. He submits that the Respondent never made the reasonable assumptions outlined in Hussein.
22To the Respondent, Hussein distinguishes the difference between a scenario where an insured person advised the insurer that they had not suffered any injuries, versus one where injuries were not addressed in the initial notice to the insurer, such as in Abbany v. Pafco Insurance Company, 2012 ONFSCDRS 144. It highlights that in Hussein, the insured person never advised the insurer whether they sustained injuries in the accident and the insurer never inquired about the insured persons injuries. It submits that the case at hand is different because the Applicant and his mother relayed that he was uninjured in the accident.
ANALYSIS
23I find that the Applicant provided notice of the accident on or around March 5th, within seven days of the accident, and in accordance with section 32(1) of the Schedule.
24The Respondent received notice of the accident when the Applicant’s mother reported the damage. While she noted that she felt her son was uninjured in the accident, she qualified it as being unsure. Upon receipt of this notice, it was incumbent upon the Respondent to make further inquiries into whether the Applicant was injured in the accident or intended to apply for accident benefits. The Respondent could have sent an AB package to the Applicant and discharged its obligation, but it chose not to.
25I find that speaking to the Applicant once was insufficient to discharge the Respondent’s obligation outlined in section 32(2) of the Schedule. Thus, the 30-day clock for the Applicant to submit an application, pursuant to section 32(5) of the Schedule never started. Hussein provides that insurers must always consider that accident victims are in a vulnerable position, particularly in the immediate aftermath of an accident. In this case, the Respondent failed to appreciate that concept and never made any additional inquiries into whether the Applicant was injured in the accident, nor did it provide him with an accident benefits package. Instead, it relied on a single statement provided in a confusing conversation and never followed-up with the Applicant to clarify if he intended to apply for accident benefits, nor did it provide any further information to the Applicant in order to discharge its obligations to promptly provide the Applicant with the AB package. Relying on a single statement from a confused insured and an equivocal statement from his mother to determine that no injuries occurred is not in keeping with the guidance in Hussein.
26I find the other caselaw provided by the Respondent to be distinguishable from this matter. The cases provided mostly included situations where no notice of an accident is provided before an untimely OCF-1 is submitted. I do not need to address those cases as they are not applicable. The most applicable, is Raveendran v. Coseco Insurance Company, 2023 CanLII 103905 (ON LAT) (“Raveendran”). Raveendran is not binding upon me like Hussein but is nevertheless differentiated. In Raveendran the insured person initially advised that he sustained no injuries and never advised otherwise during multiple communications with the insurer. Here, the Applicant mentioned once that he was not injured in the accident, and it occurred during the same call where he provided confusing reports of the accident, and he had no other opportunity to report his injuries to the Respondent.
27To me, the more relevant case is M.O. v. Jevco Insurance Company, 2020 CanLII 63561 (ON LAT) (“M.O.”), submitted by the Applicant. In M.O., the Tribunal was critical of the insurer for not inquiring into whether an insured person was entitled to accident benefits once it received notice of a tort action. It found that notice of the tort was sufficient to satisfy section 32(1) of the Schedule and concluded that the insurer should advise the injured party of the potential claim.
28The jurisprudence in M.O. is applicable despite the Applicant reporting no injuries in the call with the Respondent. This is because the conversation between the Applicant and the Respondent was clearly irregular and confusing in light of the Applicant’s recorded remarks to the adjuster. It is reasonable to expect the Respondent to do more than rely on this single statement from a confused person. To discharge its obligations under section 32(2), the Respondent ought to have made an additional inquiry into the Applicant’s status. This could have been as simple as sending an AB package to the Applicant with the requisite information on how to claim benefits, or by making a follow-up call with the Applicant to confirm that no injuries were sustained in the accident.
29Considering the above, I find that the Applicant notified the Respondent of the accident within the timeline prescribed in section 32(1) of the Schedule and that the Respondent never discharged its onus under section 32(2). Thus, I conclude that the Applicant is compliant with the timelines outlined in the Schedule, and he is permitted to proceed with his application.
CONCLUSION AND ORDER
30The Applicant is compliant with the timelines prescribed in the Schedule and may proceed with his claim for benefits.
Released: March 31, 2025
Brian Norris
Adjudicator