Licence Appeal Tribunal File Number: 24-014391/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:
Erin Campana
Applicant
and
Definity Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Nick De Koning, Counsel
For the Respondent: Nicholas Maida, Counsel
HEARD: By way of written submissions
OVERVIEW
1Erin Campana, the applicant, was involved in an automobile accident on April 13, 2022, 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, Definity 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 with her claim for benefits as she failed to submit the application for benefits (OCF-1) within the time prescribed by the Schedule in violation of s. 32(5) of the Schedule?
RESULT
3The applicant is not statute-barred from proceeding with her application.
ANALYSIS
Law
4Section 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, or as soon as practicable after that day.
5Once an insurer receives notice of an applicant’s intention to apply for statutory accident benefits, the insurer must provide the applicant 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 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.
6Section 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.
Background and parties’ positions
7The applicant was involved in an accident on April 13, 2022. The parties do not agree as to the exact date that she notified the respondent of her intention to claim accident benefits, however, they do agree that it was within seven days after the accident. On April 6, 2023, the applicant submitted her completed OCF-1 to the respondent.
8The respondent submits that the applicant should be barred from proceeding with her claim due to her failure to comply with the 30-day timeline to submit her completed OCF-1 as required by s. 32(5) of the Schedule. It argues that its claims adjuster had emailed the applicant an application package on April 19, 2022. In this email it was clearly stated that the failure to submit a completed OCF-1 within 30 days without a reasonable explanation would jeopardize payment of the claim and the file would be closed. The adjuster sent a follow-up letter dated June 30, 2022, when the completed OCF-1 had not been received. This letter also stated that if the respondent had not heard by the applicant or received the completed forms by August 1, 2022, the file would be automatically closed.
9The respondent submits that no OCF-1 was received until April 6, 2023, almost a year after the accident. In her email submitting the OCF-1, the applicant stated that her husband had been advised by their insurance broker that they had up until the one-year anniversary of the accident to file a claim. When the respondent requested a reasonable explanation for the delay, the applicant advised that: she had been initially diagnosed with a concussion and had been instructed to avoid screens, she returned to work on May 30th and did not think she would need accident benefits, but that she had a significant recurrence of the concussion and on July 21, 2022 was diagnosed with post-concussion syndrome. The respondent submits that none of these reasons constitute a “reasonable explanation” per s. 34 of the Schedule.
10The applicant does not dispute that she first provided her OCF-1 to the respondent on April 6, 2023, almost a year after the accident. However, she argues that she is not in violation of s. 32(5) of the Schedule, since the respondent was non-compliant with its own statutory obligations under s. 32(2). The applicant submits that the respondent has not established that the April 19, 2022 email from its adjuster had any accident benefit forms attached to it. In the respondent’s materials for this hearing, no such accident benefits forms were printed to suggest they had been attached to the email, and the reproduced version of the email did not seem to list such attachments.
11The applicant also argues that she had never consented to email delivery, particularly given that she was struggling with screens due to her concussion. Further, the applicant argues that her explanation, that she had hoped for a quick recovery, but then had significant regression in symptoms, was reasonable. This was especially true given the insurer’s own conduct, where the adjuster had advised the applicant that it was “ok” that the OCF-1 had not yet been submitted.
Did the respondent comply with its obligations under s. 32(2) of the Schedule?
12I find that the respondent was not compliant with s. 32(2).
13In order to find that the applicant was non-compliant with s. 32(5) of the Schedule, I must first determine whether the respondent complied with its obligations under s. 32(2). The 30-day deadline to return a completed OCF-1 would only be engaged if the respondent had provided the information required under s. 32(2).
14Pursuant to s. 32(2), the respondent was required to promptly provide the applicant with the appropriate application forms. The respondent submits that it provided these forms to the applicant as attachments to the April 19, 2022 email sent by its adjuster. However, the applicant argues that there is no evidence that she consented to email delivery. She cites s. 64(2)(e) of the Schedule, which states that delivery of documents by email is only permitted if the intended recipient consents to delivery in this manner. The applicant argues that particularly given that she was struggling with screens due to her concussion, the respondent should not have sent documentation by email.
15The respondent argues that the applicant has not provided any caselaw to support her position that explicit consent is required for email delivery. It cites s. 64(2) of the Schedule which states that any document “may be delivered” in the manner described in the subsections that follow. The respondent submits that the use of “may” is permissive rather than the obligatory “shall” or “must”. It further argues that the applicant provided “implicit consent” to email communication.
16I am not persuaded by the respondent’s argument that s. 64(2)(e) is permissive, rather than obligatory. In my view, the language in s. 64(2)(e) of the Schedule is clear that documents may be delivered by email “if the intended recipient consents to delivery by electronic means”. As such, consent to email delivery is required by the Schedule. With respect to the respondent’s argument that the applicant did not provide caselaw in support of her interpretation that consent is needed, I note that the respondent similarly did not provide any caselaw of its own, in support of its position that consent is not required for email delivery. Further, the applicant’s interpretation, that consent is required for email delivery, is consistent with a plain reading of the Schedule.
17I further do not find that the applicant provided “implied consent” to email delivery. The respondent points to the August 11, 2022 log note entry which noted that the applicant had acknowledged that she would provide the OCF-1 as soon as she was able, and that her husband “is helping with emails”. It argues that this log note is evidence of implicit consent to email communication. I am not persuaded by the respondent’s argument.
18I agree with the applicant that particularly in light of her ongoing post-concussive symptoms and difficulties with screens, the respondent has not established that the applicant provided consent (explicit or implied) to email delivery. The adjuster’s log notes reveal that even when the applicant first contacted the respondent about her claim, on April 14, 2022, she reported concussion symptoms and that her doctor instructed her to “avoid screen time of more than 30 min in front of the computer for a month.” Despite this report of difficulties with screens, the respondent emailed the application package a few days later, on April 19, 2022. While the respondent sent a follow-up letter on June 20, 2022, there is no evidence that the application package was provided in this letter.
19The August 11, 2022 log note entry summarizes a phone call with the applicant, where she described her worsening concussion, that she would provide her OCF-1 as soon as she was able, and that due to her concussion her husband was “helping with emails and she cannot look at screens”. In light of the report that the applicant was unable to look at screens, I do not see how this phone call could be seen as evidence of implied consent to email delivery. Although the applicant stated that her husband was “helping with emails”, there did not appear to be any follow-up discussion as to whether email delivery was acceptable, or whether correspondence should be copied to the applicant’s husband as well.
20I agree with the applicant that the Schedule is consumer protection legislation and that as per the Divisional Court decision, Hussein v. Intact Insurance Company, 2025 ONSC 842, parties who have motor vehicle accidents are in a vulnerable position, “particularly in the period immediately following an accident”. In the present case, the applicant reported her concussion and difficulties with looking at screens immediately after the accident. However, the respondent still emailed the applicant the application package. Given the applicant’s deteriorating post-concussive symptoms, I do not find the limited reference to her husband “helping with emails” to be sufficient evidence of an implied consent to email delivery.
21However, even if I am incorrect and that the applicant did provide implied consent to email delivery, I still find that the applicant established a reasonable explanation for the delay in submitting her OCF-1.
Did the applicant comply with s. 32(5) of the Schedule or provide a reasonable explanation for the delay?
22The applicant does not dispute that she provided her completed OCF-1 on April 6, 2023, well outside the 30-day timeline stipulated in s. 32(5). However, I find that she has provided a reasonable explanation for the delay, in accordance with s. 34 of the Schedule.
23In addition to the applicant’s post-concussive symptoms which hindered her ability to return the OCF-1, the applicant points to the respondent’s conduct that she claims gave her the mistaken impression that a late submission of the OCF-1 was “okay”.
24I find it credible or worthy of belief that the applicant believed that she could submit her OCF-1 past the 30-day timeline, due to the respondent’s communications. The August 11, 2022 adjuster’s log note reveals that the applicant advised the adjuster that she wanted to continue her claim and wanted to provide her OCF-1 as “soon as she is able”, but that her concussion was delaying her and she could not look at screens. The adjuster advised the applicant “that’s okay and we’ll follow up again if we [haven’t received] anything yet”. The adjuster also told the applicant to send her the clinic information once the applicant had chosen a clinic. The adjuster’s workplan noted that she would follow up with the applicant about her OCF-1 and her recovery status. However, there was no further follow up with the applicant and the applicant’s file was closed on November 29, 2022.
25I accept the applicant’s argument that this communication bolstered her belief that she could submit the OCF-1 outside of the 30-day timeline. This belief, together with her post-concussive symptoms and difficulties with screen time, in my view, constitute a reasonable explanation for the delay in submitting her application.
26While I agree with the respondent that it would suffer prejudice by the applicant’s late submission due to its inability to contemporaneously investigate the applicant’s injuries, the applicant would similarly suffer hardship if she were unable to proceed with her claim. Moreover, I agree with the applicant that even after the OCF-1 was submitted, the respondent did not request to assess the applicant. The OCF-1 was submitted on April 6, 2023 and she provided a statutory declaration by May 5, 2023. However, the respondent did not deny the claim until February 4, 2024, almost 10 months after the OCF-1 was submitted. As such, almost half of the delay in assessing the applicant was not caused by her late submission of the OCF-1.
27Having found that the applicant has provided a reasonable explanation in accordance with s. 34 of the Schedule for any delay in submitting her OCF-1, I find that the applicant may proceed with her claim.
CONCLUSION AND ORDER
28The applicant is not statute-barred from proceeding with her application.
29The applicant may proceed with her application to the substantive issue hearing.
Released: May 14, 2025
Ulana Pahuta
Adjudicator