Licence Appeal Tribunal File Number: 24-007774/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:
Jean-Pierre Lelievre
Applicant
and
Definity Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Natalia Poliakova, Paralegal
For the Respondent:
Ainsley Shannon, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Jean-Pierre Lelievre (the “applicant”) was involved in an accident on September 12, 2023, and sought benefits pursuant to the Statutory Accident Benefits Schedule -- Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied benefits by Definity Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal -- Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issues to be decided are:
i. Is the applicant barred from proceeding to a hearing as the applicant 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 accident benefits as they failed to submit the application for benefits (OCF-1) within the time prescribed by the Schedule?
RESULT
3The applicant may proceed to a hearing.
ANALYSIS
Background and Parties’ Positions
4The applicant was involved in an accident on September 12, 2023 while on his motorcycle. The applicant reported the accident to the respondent the following day. A claims note on September 13, 2023 confirms that the applicant reported that he was rear-ended on his motorcycle, he hit his chest and fell on the ground. Damage is noted to be unknown, and that the bike was “half under the car”. On April 12, 2024, the applicant submitted a completed application for accident benefits (OCF-1).
5The respondent submits that the applicant has not complied with his obligations pursuant to section 32(1) of the Schedule, and has not provided a reasonable explanation for the delay. The respondent’s submissions do not address the second issue in dispute, whether he failed to submit his application within the required timelines.
6The applicant submits that his obligation to notify the respondent of his intention to claim accident benefits was met when he reported having been involved in the accident.
The Law
7Section 32(1) of the Schedule requires an insured person to inform an insurer of their intention to claim accident benefits within seven days of the accident, or as soon as practicable after.
8Section 34 states that if the insured person does not comply with the time limits, the insured person may still be entitled to benefits if they have a reasonable explanation for the delay.
9Pursuant to section 55(1)1, an insured person may not apply to the Tribunal if they have not notified the insurer of the circumstances giving rise to a benefit or has not submitted an application for the benefit within the times set out in the Schedule.
10The interpretation of “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada, FSCO A02-000482, June 9, 2003, and was more recently reiterated in K.H. v. 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.
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.
Section 32(1)
11The applicant submits that the requirements of section 32(1) were met when he reported having been involved in an accident the following day. The applicant relies on a recent Divisional Court decision in Hussein v. Intact Insurance Company, 2025 ONSC 842 which considered the consumer protection nature of the legislation and held that the insured had met his obligations under section 32(1) when he reported the accident the following day. The Court held that a reasonable insurer should assume that an insured intends to access all benefits available to them, including accident benefits. 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).
12Here the evidence demonstrates that the applicant reported the accident, that he struck his chest, fell on the ground and his motorcycle was underneath the car that struck him. To me, that is sufficient to find that the applicant discharged his burden under section 32(1). The claim note before me does not indicate whether any inquiry was made as to whether the applicant sustained any injuries. In failing to make inquiries as to whether the applicant suffered injuries, or send the necessary application forms, the respondent failed to discharge its obligation in accordance with Hussein.
13I find that the applicant complied with his obligations under section 32(1) when he gave notice of his intention to claim accident benefits on September 13, 2023. Accordingly, I find it unnecessary to address the parties’ submissions as to whether the applicant had a reasonable explanation for any delay.
Section 32(5)
14Upon being notified of a person’s intention to apply for benefits, pursuant to s. 32(2) the insurer is required to promptly provide the person with the appropriate application forms.
15Section 32(5) states that an insured person shall submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms.
16Given that the respondent did not provide the applicant with the application forms pursuant to section 32(2), the respondent has not established that the applicant failed to submit the completed forms within the timelines.
CONCLUSION AND ORDER
17The applicant complied with his obligations pursuant to section 32(1).
18The respondent has not established that the applicant was non-compliant with his obligations pursuant to section 32(5).
19The applicant may proceed with his application.
Released: April 11, 2025
___________________________
Kate Grieves
Adjudicator