Licence Appeal Tribunal File Number: 24-014267/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:
Applicant, A minor by his litigation guardian, O.B
Applicant
and
CAA Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Bianca Zimperi, Counsel
For the Respondent:
Ken Yip, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1O.B, parent on behalf of a minor, the applicant, has a claim arising out of an automobile accident on May 30, 2022 and sought benefits pursuant to the Statutory Accident Benefits Schedule- Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The respondent, CAA Insurance Company, denied benefits on the basis that the application for accident benefits was delayed without a reasonable explanation. The applicant disagreed and applied to the Licence Appeal Tribunal-Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
3The preliminary issue to be decided is:
i. Is the applicant barred from proceeding with their claim for benefits as they failed to submit the application for benefits (OCF-1) within the time prescribed in the Schedule?
RESULT
4The applicant is not statute-barred from proceeding with his application before the Tribunal.
PROCEDURAL ISSUES
The applicant’s submissions and evidence at paragraph 6 are excluded from the hearing record
5In its reply submissions, the respondent requests that the applicant’s submissions and evidence at paragraph 6 be excluded from the hearing record.
6The respondent submits that the applicant has not produced any hospital records or photographs of the applicant after the accident, and he included a note dated May 31, 2022 of L.B, registered nurse, at Health Sciences Centre, and a photograph of the applicant in the hospital at paragraph 6 of his written submissions.
7The applicant’s submissions included the note of L.B dated May 31, 2022, and the photograph of the applicant to demonstrate that he did not have any immediate injuries after the accident.
8I find that it is prejudicial to the respondent for the applicant to include selected pages of the applicant’s hospital records with an unidentified photograph without having satisfied the production deadlines set out in the Case Conference Report and Order (“CCRO”) dated February 21, 2025.
9Therefore, I find that the applicant’s submissions and evidence at paragraphs 6, are struck from the hearing record.
The applicant’s submissions and evidence at paragraphs 8-15 are admissible
10The respondent further submits that paragraphs 8 to 15 of the applicant’s submissions include redacted notes of the applicant’s legal representative. The respondent argues that these notes are incomplete, and they do not amount to evidence of the applicant.
11I find that in its initial submissions, the respondent referred to the examination under oath (“EUO”) of the applicant’s parent, which include his legal representative’s reference to her notes dated July 13, 2022, when he advised her about his concerns about the applicant. Although the legal representative’s notes of her conversations with the applicant’s father may depict those conversations, they are not evidence to determine the minor applicant’s right to pursue a claim.
12Although the respondent did not receive a copy of the redacted notes of the applicant’s legal representative before receiving his written submissions, I find that these notes were discussed at the EUO of the applicant’s father, and the respondent has not explained how they are prejudiced by including the notes in the hearing record.
13I find that the applicant’s submissions and evidence at paragraphs 8-15 are admissible since the respondent had the opportunity to address this evidence at the EUO of the applicant’s parent.
ANALYSIS
Background
14On May 30, 2022, when he was three years old, the applicant was involved in a motor vehicle accident, wherein his parent, the litigation guardian was the driver who has pursued his own claim for accident benefits in a timely manner. His parent notified the respondent on April 3, 2024, that the applicant was involved in the accident, when the respondent received the application for accident benefits (“OCF-1”), which lists the applicant’s injuries as nightmares, passenger anxiety, bedwetting and daytime wetting. At the case conference, the respondent raised a preliminary issue that the minor applicant is barred from proceeding with his claim because he did not comply with the timelines set out under s. 32(1) of the Schedule.
15Since the applicant was three years old when the accident occurred, the two-year limitation period does not begin to run until he reaches the age of majority. Section 6 of the Limitations Act, 2002, S O 2002, c 24 states that the two-year limitation period in s.4 of that Act does not start to run during any time that the claimant is a minor. However, the Limitations Act, 2002 only applies to court actions. There is no similar suspension of a limitation period for a minor in either s. 55 of the Schedule or the Insurance Act.
16However, s. 34 of the Schedule provides that the applicant’s failure to comply with the time limit in s. 32 does not automatically disentitled him to benefits as long as he has a reasonable explanation for the delay.
The Law
17Section 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.
18Once 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 specified benefits, if available (s.32(2)). Pursuant to s.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.
19Section 34 states that if the insured person does not comply with the time limits prescribed under Part VIII of the Schedule, the insured person may still be entitled to benefits if they have a reasonable explanation for the delay.
20Section 55(1)1 of the Schedule provides that an insured person shall 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.
21The interpretation of “reasonable explanation” is guided by H and The Insurance Company of Canada, , and was more recently reiterated in K.H. v. The Insurance Co, 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.
As 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)
22The respondent submits that the applicant failed to notify the insurer of his intention to apply for benefits or submit an OCF-1 form until, 2024, which was 674 days after the, 2022 accident. On, 2024, after receiving the OCF-1, the respondent requested an EUO of both the applicant and his parent.
23The respondent relies on the EUO dated, 2024, of the applicant’s parent to support the fact that the applicant had no explanation for the delay in notifying the respondent, other than the applicant’s family physician, Dr. L AK advised him to see a therapist five or six months after the accident. The respondent submits that the applicant’s parent is familiar with the process of applying for accident benefits as he presently has open accident benefits claim with CAA Insurance Company arising from the, 2022 accident. The applicant’s parent retained legal counsel one month after the accident and submitted an OCF-1 to the respondent. The respondent submits that the applicant’s Parent also submitted an OCF-1 for an earlier accident in January 2016, and he was familiar with making a claim for accident benefits.
24The respondent argues that the applicant’s parent knew as early 2022 that the applicant had accident-related complaints of poor sleep, reluctance to leave the house and talking about the accident.
25The applicant submits that the OCF-1 was not submitted earlier because he had not received a diagnosis of a psychological injury from Dr. AK until, 2024.
The OCF-1 was filed late
26The applicant does not dispute the fact that the OCF-1 was filed outside the timeline stipulated in s. 32(5) of the Schedule. The applicant focuses his submissions on whether he has a reasonable explanation for the delay in submitting his OCF-1 pursuant to s. 34 of the Schedule.
The applicant has established a reasonable explanation for the delay
27I find that the applicant has established a reasonable explanation for the delay. The applicant was three years old when the accident occurred, and he has until two-years after he reaches the age of majority to initiate a tort claim. I find that the applicant would suffer irreparable prejudice if he is statute-barred from pursuing his claim for accident benefits while he remains under a state of legal disability.
28The applicant submits that his rights are extended under the Schedule for medical and rehabilitation benefits since he was under 18 years old when the accident occurred. The applicant submits that his father initially noticed his reluctance to leave the house, or travel in a vehicle, and later reported these symptoms to Dr. AK in 2024. The applicant submits that he submitted an OCF-1 after he obtained a medical diagnosis from his doctor.
29The first guiding principle in Horvath sets out that an explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed. I find that the minor applicant’s age at the time of the accident is not disputed, and the respondent had notice of the applicant’s parent claim within one month of the accident. I find that the respondent had the opportunity to obtain information about the minor applicant’s involvement in the accident and reach out to his guardians to provide them with an application. The explanation is clearly credible and worthy of belief as the applicant could not have been expected to act as a minor. Although ignorance of the law is not reasonable, the minor applicant is entirely reliant on his guardians, and his injuries were not immediately apparent.
30I have also taken into account the personal characteristics and reasonable person standard set out in Horvath. I am not satisfied that the minor applicant has forfeited his rights to a claim because his father retained legal representation and took steps to submit an OCF-1 for his own accident benefits claim. I find that since the applicant was three years old at the time of the accident, there is a reasonable explanation for delay, given not only his lack of verbal communication but also having immigrant parents with limited English language skills.
31I find there is limited prejudice to the respondent, and there is significant hardship caused by denying the applicant’s access to potential claims under the Schedule. I find it is reasonable to allow the applicant to proceed with his claim, in the absence of submissions by the respondent to explain how it has suffered any prejudice by the delay.
32I find that the minor applicant provided a reasonable explanation for delay under s. 34 and he may proceed with his claim at the Tribunal because he remains under a legal disability and his right to initiate a claim should not be limited by his guardians’ ability to recognize his symptoms.
Section 55
33Pursuant to s. 55(1)1 of the Schedule, an insured person shall not apply to the Tribunal under subsection 280(2) of the Insurance Act if the insured person has not submitted an application for the benefit within the time prescribed in s. 32.
34As outlined above, I find that although the applicant did not submit a completed OCF-1 within the timelines prescribed by the Schedule, he remains under a legal disability until he reaches the age of majority, which constitutes a reasonable explanation for the delay. Accordingly, I find that the applicant is not statute-barred from proceeding with his application.
ORDER
35The applicant may proceed with his application.
Released: June 12, 2025
___________________________
Lisa Holland
Adjudicator