Licence Appeal Tribunal File Number: 24-007135/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:
Adi Belyak
Applicant
and
Definity Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Anna Rezaei, Counsel
For the Respondent:
Savneet Multani, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Adi Belyak (the “applicant”) was involved in an automobile accident on June 20, 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 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 issue to be decided is:
i. Is the applicant barred from proceeding to a hearing as he 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 statute-barred from proceeding with his application.
ANALYSIS
Background
4The applicant was involved in an accident on June 20, 2023, and notified the respondent on June 21, 2023 that he was involved in an accident but did not suffer any injuries. Although the respondent submits that this occurred on June 22, 2023, I note that the recording of the phone call from the applicant confirms that the call was made the day after the accident. The respondent submits that it was first notified of the applicant’s intention to seek accident benefits on December 11, 2023, when it received the application for accident benefits (“OCF-1”). I note that there is an indication on the OCF-1 that it was faxed to the respondent on December 8, 2023. As such, I find that the applicant notified the respondent that he was involved in an accident on June 22, 2023 and submitted an OCF-1 to the respondent on December 8, 2023.
The Law
5Section 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.
6Section 34 states that if the insured person does not comply with that time limit, the insured person may still be entitled to benefits if they have a reasonable explanation for the delay.
7Pursuant 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 applied for the benefit within the times set out in the Schedule.
8The interpretation of “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada, FSCO A02-000482, June 9, 2003 (“Horvath”), 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.
The applicant did not comply with section 32(1)
9The respondent submits that when the applicant called to advise he had been in an accident, the agent asked whether there were any injuries and the applicant responded that everything was fine, he was okay, and that at no point during the 28-minute conversation did the applicant report any injuries.
10The applicant submits that the respondent did not send him an OCF-1 pursuant to s. 32(2) of the Schedule. The applicant points out that s. 32(5) states that the applicant shall apply for benefits within 30 days after receiving the application forms. The applicant relies on the Tribunal decision of Nichols v. Gore Mutual Insurance Company, 2023 CanLII 7299 (ON LAT) (“Nichols”), where the Tribunal held that the 30-day time limit to file the application does not start until the applicant received the OCF-1 from the respondent. The applicant submits that the respondent’s denial is based on the late submission of the OCF-1, as indicated in its letter dated April 18, 2024, and not on his failure to notify the respondent of an intention to claim benefits within seven days. The applicant argues that, given that he was not provided with the OCF-1, the clock did not start running, pursuant to Nichols, and therefore there was no delay in submitting the OCF-1 to the respondent.
11In reply, the respondent submits that, in its letters dated December 14, 2023, January 16 and February 6, 2024, it clearly advised the applicant that it was relying on s. 32(1) of the Schedule, and that the applicant had not notified the respondent of his intention to claim benefits within seven days.
12I find that the Nichols decision is distinguishable. The preliminary issue in this case involves s. 32(1), i.e., whether the applicant informed the respondent of his intention to claim accident benefits within seven days of the accident, or as soon as practicable after, and not s. 32(5), which was considered in the Nichols decision.
13The parties referred to several Tribunal decisions in their submissions about s. 32(1), however, the Tribunal requested submissions from the parties on the Divisional Court’s recent decision in Hussein v. Intact Insurance Company, 2025 ONSC 842 (“Hussein”) on the issue, which is binding on the Tribunal.
14The respondent submits that the Hussein decision is distinguishable. The respondent submits that the Court held that the notice requirement in s. 32 is met on the day that an insured advises the insurer of an accident, and in the absence of any question by the insurer, it should be assumed that an insured intends to apply for benefits, and the insurer must act accordingly.
15The respondent points out that in Hussein, the Court noted that the insurer had never questioned the insured about whether he had suffered any injuries and accordingly, the Court required the insurer to act on the assumption that the insured intended to apply for benefits. Here, the respondent submits, the agent asked the applicant if he had sustained any injuries, and the applicant did not report any. The respondent argues that, to the extent that there was any presumption upon notice of the accident, that was rebutted by the respondent’s questioning and the applicant’s declaration that he was not injured. The respondent relies on the FSCO decision of Ahmad Abbany v. Pafco Insurance Company, 2012 ONFSCDRS 144 (“Abbany”), which it submits was approved by the Court in Hussein. The Court in Hussein pointed out that in Abbany, the insurer did not have an obligation to make enquiries of the insured because the insured advised the insurer that he had not suffered any injuries.
16The applicant submits that the Court in Hussein unequivocally held that the notice requirement was met when the insured advised the insurer that he had been in an accident one day later. The applicant argues that he satisfied his obligation to give notice under s. 32(1) when he reported the accident to the respondent the day after the accident. The applicant submits that the Court in Hussein centred on the principle that the Schedule is consumer protection legislation and must be interpreted generously to achieve its core objective, which is to alleviate the economic hardship experienced by victims of motor vehicle accidents. The applicant further submits that Hussein indicates that an explicit declaration of intent to claim benefits by the insured is not required and that insurers should actively inquire about potential injuries and provide clear and comprehensive information about available benefits.
17Although I agree that the Court in Hussein indicates that the insurer should actively inquire about potential injuries, I do not agree that the Court held that the insurer should provide clear and comprehensive information about available benefits in the absence of any reported injuries. In this case, I find that the respondent’s agent did inquire whether the applicant had sustained any injuries, and the applicant did not report any. I note that in the recording of this conversation, the applicant re-iterated that there were no injuries in the accident. That being the case, I find that the Hussein decision is distinguishable because it involved an insurer who did not question whether the insured had suffered any injuries.
18I find that on June 21, 2023, the day after the accident, the applicant called the respondent to report that he was involved in an accident, but he did not report any injuries or inform the respondent of his intention to claim accident benefits. I find that the respondent was first notified of the applicant’s intention to seek accident benefits on December 8, 2023, when it received the applicant’s OCF-1, over five months after the accident.
19For these reasons, I find that the applicant did not comply with section 32(1) of the Schedule.
The applicant did not have a reasonable excuse
20I am not persuaded that the applicant has provided a reasonable explanation for the delay in notifying the respondent of his intention to apply for accident benefits.
21The onus is on the applicant to establish that he has a reasonable explanation for the delay.
22The applicant has provided the following purported “reasonable explanations”:
i. He immigrated to Canada in May 2022 and is new to Ontario and speaks limited English. Accordingly, he did not have knowledge of the automobile insurance scheme; and
ii. He thought that his accident-related injuries would improve and resolve. When his injuries persisted, he retained counsel and submitted an OCF-1 through his counsel.
23The respondent submits that the applicant did not report any injuries or complaints to his family doctor until November 13, 2023, five months after the accident, and he did not mention the accident at all during his appointment on August 9, 2023. The respondent argues that a reasonable person in the applicant’s position would have mentioned any injuries to the property damage adjuster during the period the claim was being adjusted, would have reported their injuries to the insurer sooner, and would have contacted a lawyer for advice prior to November 2023. The respondent points out that the applicant has not explained why he was unable to obtain legal advice in the six months prior.
24The respondent further submits that it is prejudiced by the delay in reporting because it has been precluded from properly assessing and investigating the claim for a six-month period. Accordingly, the respondent argues that it would not be equitable for the Tribunal to relieve the applicant from his duty to provide notice in accordance with s. 32 of the Schedule.
25The applicant submits that it is very clear from the phone call to the respondent’s agent after the accident that his English skills are limited. For example, he asks the agent to repeat things, he did not know what a car seat was, and he asked, “how do you call?” and responded “no, I’m, I’m” to the question “Is it GST or HST register?” The applicant submits that the fact that he was guided through the property damage process by the respondent, the fact that he had to use the aid of a legal clinic to apply for financial assistance, and the fact that he had to retain a lawyer to submit an OCF-1 are consistent with his reasoning that he speaks limited English, he is new to Ontario, and he did not have knowledge of accident benefits.
26The applicant further submits that he saw his family physician, Dr. Rachel Han, on November 13, 2023, for pain in the right shoulder and back post-accident and advised her that he felt this pain the day after the accident but did not see a doctor as he thought it would get better. The applicant submits that a reasonable person, realizing that they were not recovering from injuries, would seek assistance upon that realization. The applicant relies on the Tribunal decision of 17-003686 v. Gore Mutual Insurance Company, 2018 CanLII 131128 (ON LAT) (“Gore”), submitting that the Tribunal found the claimant’s explanation that the delay was due to her expectation that her accident symptoms would resolve was reasonable. I find that this decision is distinguishable. I note that in finding that the claimant’s explanation for delay was reasonable, the Tribunal in Gore found that the application package was sent to her previous address, and as such the respondent did not advise her about the 30-day limitation to apply. In its reasons, the Tribunal did not mention the claimant’s argument about her explanation that her accident symptoms would resolve.
27The applicant relies on the decision of M.O. v. Jevco Insurance Company, 2020 CanLII 63561 (ON LAT) (“Jevco”), where the Tribunal concluded that the claimant, who was a minor at the time of the accident and his parents were recent immigrants with no knowledge of the insurance system, was permitted to proceed with his application. The Tribunal also found limited prejudice to the insurer because medical documentation was available to allow the insurer to obtain accurate information and effects of the accident. I find this decision is distinguishable. Jevco involved a six-year-old child who was hit by a vehicle on the sidewalk. The family did not have any insurance, and upon receipt of notice by way of a tort action letter indicating injuries from the accident, the respondent did not contact the claimant to advise him of his potential claim or provide him with an application. Here, the applicant had his own insurance, and did not advise the respondent of his injuries when asked the next day. The Tribunal in Jevco found that the age of the claimant at the time of the accident was an eminently reasonable explanation for the delay. Further, in Jevco, the Tribunal found that there were volumes of contemporaneous medical records of the claimant’s injuries, which is not the case here.
28The applicant also relies on the Horvath decision, where the Tribunal held that an explanation which relies upon an insured person’s ignorance of a law governing liability cannot, for that reason alone, be unreasonable. In that case, the claimant did not know that her insurer was liable to provide coverage for her accident.
29The applicant argues that his explanation is credible and worthy of belief. He submits that he suffers hardship as he continues to have physical pain and psycho-emotional symptoms because of the accident and has been unable to continue his pre-accident work activities and is struggling financially as a result. The applicant submits that he has been prescribed medication, referred for psychotherapy and pain management strategies that he is unable to fund, and he does not have access to extended health coverage.
30The applicant further submits that the respondent has not been precluded from properly assessing and investigating the claim because the police report, the property damage file and medical information have been produced to the respondent.
31In reply, the respondent pointed to three recent Tribunal decisions released after Horvath that have held that not knowing one’s rights as it relates to accident benefits is not a reasonable explanation: Ozdemir v. Economical Mutual Insurance Company, 2024 CanLII 13093 (ON LAT), Sabbagh v. St. Paul Fire and Marine Insurance Company, 2024 CanLII 28817 (ON LAT), and Abdi v. Travelers Canada, 2020 CanLII 123274 (ON LAT) (“Abdi”). In Abdi, the Tribunal held that the applicant is deemed to know the applicable period for notifying the insurer of her intention to claim accident benefits or to provide notice as soon as practicable. The Tribunal further held that the applicant’s subjective belief about the nature of her injuries is not a reasonable excuse.
32Although I am not bound by other decisions of the Tribunal, I am persuaded by the reasoning in the more recent decisions above.
33I am not persuaded on a balance of probabilities that the applicant had a reasonable explanation for the delay in reporting due to his ability to speak limited English and his belief that his accident-related injuries would improve and resolve.
34I have listened to the phone recording, and, although it is apparent that the applicant’s first language is not English, I find that he had an adequate grasp of the language and was able to carry on a 28-minute conversation without much difficulty.
35Further, although the applicant reported to Dr. Han on November 13, 2023 that he had pain in his shoulder and back the day after the accident, on the day after the accident, he advised the agent for the respondent that he had no injuries. The applicant does not explain why he did not report the accident and injuries to Dr. Han during his appointment on August 9, 2023. I am not persuaded by the applicant’s submission that when his injuries persisted, he sought medical attention because he also told Dr. Han on November 13, 2023 that the pain accelerated and decelerated and resolved for one to two weeks, however he waited three months after his August 9, 2023 appointment to report it. Given these inconsistencies, I do not find the explanation to be credible or worthy of belief.
36In balancing the prejudice to the insurer and the hardship to the claimant, I find that it would not be equitable in the circumstances of this case to relieve the applicant of his obligation to comply with the time limit. I note that the applicant has only referred to the following clinical notes and records of accident-related injuries from the date of the accident to his reporting of injuries to the respondent on December 8, 2023: appointments with Dr. Han on November 13 and 22, 2023, and a copy of an ultrasound dated November 15, 2023. I find that, given the very limited medical evidence, the respondent is prejudiced by the delay in reporting because it has been precluded from properly assessing and investigating the claim for almost six months.
37Having considered the evidence before me, I am not persuaded that the applicant has provided a reasonable explanation for the delay in notifying the respondent of his intention to apply for accident benefits.
38The applicant did not notify the respondent of the accident in accordance with section 32(1) and has not provided a reasonable explanation for the delay. Accordingly, pursuant to section 55(1)1 of the Schedule I find that the applicant is statute barred from proceeding with his application.
ORDER
39The applicant is barred from proceeding with his application before the Tribunal. The Tribunal shall vacate any date that has been scheduled for the substantive hearing.
Released: April 28, 2025
Laura Goulet
Adjudicator