Licence Appeal Tribunal File Number: 24-014459/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:
Tricia Green
Applicant
and
Belair Insurance Company Inc.
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Kim Mohammed-Sieudhan, Counsel
For the Respondent:
Peter Pietraszek, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Tricia Green, the applicant, was involved in an accident on October 26, 2021, 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 Belair Insurance Company Inc., the respondent, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES IN DISPUTE
2The preliminary issues to be decided are:
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?
ii. Is the applicant barred from proceeding to a hearing for all of the benefits claimed in the application because the applicant failed to comply with section 33 of the Schedule?
3The respondent submits that the wording of the preliminary issues in the Case Conference Report and Order (“CCRO”) is incorrect, and should be read as follows:
i. Is the applicant barred from proceeding with her application because she failed to comply with s. 32 of the Schedule?
ii. Does the insurer have to pay any benefits during the applicant’s period of non-compliance in response to the insurer’s s. 33 Examination Under Oath request?
4The applicant submits that the wording of the issues was discussed and made on consent by the participating parties at the Case Conference. The CCRO was issued by the Tribunal on March 13, 2025. The applicant submits that following receipt of the CCRO, there were no objections or request for variation from the respondent regarding the wording of the issues, until the respondent filed its submissions on April 24, 2025. Therefore, the applicant submits that the issues should not be re-worded.
5I agree with the applicant that there were no objections or requests for variation made by the respondent following receipt of the CCRO. Had the respondent wanted the wording of the issues to be varied, the time for doing so would have been upon receipt of the CCRO. Therefore, I do not grant the respondent’s request to re-word the issues in dispute.
RESULT
6The applicant is statute barred from proceeding to a hearing for her claim for accident benefits.
ANALYSIS
Background
7On October 25, 2021, the applicant was a pedestrian involved in a motor vehicle accident.
8On September 15, 2023, the applicant first notified the respondent of the accident.
9On September 28, 2023, the respondent delivered an Initial Accident Benefits package to the applicant.
10On October 3, 2023, the applicant submitted her Application for Accident Benefits (“OCF-1”) to the respondent.
11On November 20, 2023, the applicant provided an unsigned statement to the respondent where she provided the following reasons for the delay in her reporting the accident:
The reason for the delay in reporting is I didn’t know where to go and after she hit me she didn’t give me her insurance. I took a picture of her driver’s licence and I was in shock. It was a good year and a half going to the police station to get it and not until my final attempt I went on September 1st and a constable was there and she said she would get me the information and the next week she called me back with the insurance and I called Intact within two days. Until that point I kept going to the police station. I was working 60-hour weeks as a manager and launching my daughter to university. They wanted me to pay for the report but I didn’t feel that I should since I was the victim. I didn’t have anything but her licence and finally the police gave me the information.
Law
12Section 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 that give rise to the entitlement to the benefit, or as soon as practicable after that day.
13Once an insurer receives notice of an applicant’s intention to apply for statutory accident benefits, pursuant to s. 32(2) of the Schedule, the insurer must provide the applicant with the appropriate OCF-1 forms, a written explanation of benefits available, information to assist the person in applying for benefits and information on the election relating to income replacement benefits, non-earner and caregiver benefits, if applicable. Pursuant to s. 32(5) of the Schedule, the applicant must then submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms.
14Section 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.
15Pursuant to section 55(1)1 of the Schedule, 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.
16The interpretation of “reasonable explanation” is guided by Horvath v. Allstate Company of Canada, 2003 ONFSCDRS 92 and was more recently reiterated in K.H. v. Northbridge General Insurance Company, 2019. 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.
17The onus is on the insured to establish that she has a reasonable explanation for the delay.
Parties’ Positions
18The respondent submits that the applicant is barred from proceeding with her claim for accident benefits due to her failure to comply with the statutory requirements under s. 32(5) of the Schedule. The respondent submits that the applicant did not notify it about the accident until September 15, 2023, 690 days after the accident. The respondent submits that the applicant has not provided a reasonable explanation for the almost two-year delay and her explanations are neither credible nor worthy of belief. The applicant has not provided any evidence to support her explanations.
19The respondent submits Affidavit evidence from the third-party driver that states the applicant took pictures of the third-party driver’s contact information and insurance at the scene of the accident, including her home number, insurance card, and her driver’s licence. The respondent submits that despite having this information, the applicant took no steps to contact the third-party driver for any information following the accident.
20The respondent submits that while the applicant indicates in her statement that “it was a good year and a half going to the police station to get (the information she wanted)” and that she “kept going to the police station”, there is no evidence of this within the applicant’s submissions.
21The respondent further submits that the applicant in her statement does not blame her accident-related injuries or impairments for her delay in reporting the accident to the respondent. Instead, the applicant indicates that she was presumably too busy to apply because she “was working 60-hour weeks as a manger and launching (her) daughter to university”. The respondent submits that the applicant has not provided any evidence to support this within her submissions.
22The respondent relies upon the decision in Ilangeswaran v. Sonnet Insurance Company, 2021 CanLII 55200 (ON LAT) (“Ilangeswaran”), where the Tribunal found that the applicant must show that the “reasonable explanation” provided is rationally connected, with evidence, to support why or how the explanation reasonably resulted in the delay in submitting the application. The respondent submits that in this matter, the applicant’s explanations of working 60 hours, supporting a daughter, attending a police station, not wanting to pay for “the report”, and all the while admitting to possessing the respondent’s insured’s contact information are not reasonable explanations accounting for almost two years of delay.
23The respondent argues that the prejudicial delay, preventing it from contemporaneously investigating the applicant’s claim, outweighs the prejudice to the applicant and should be considered against the lack of credibility and reasonableness of the applicant’s inaction.
24The applicant submits that she notified the respondent of the accident and her intention to apply for benefits as soon as practicable pursuant to s. 32(1) of the Schedule. The applicant submits that she has provided an explanation that is credible and worthy of belief in reporting the accident to the respondent, as she did not have her own auto insurance policy, nor was she listed under any other insurance policy, and she did not have the third-party’s insurance information.
25The applicant submits that the Affidavit of the third-party is factually incorrect, misleading, contradictory and purportedly being used to lobby against the applicant from proceeding with her LAT application. She submits that at the scene of the accident, the third-party did not provide the applicant with her insurance information and only provided her with her driver’s licence and telephone number. The applicant submits that this is supported by the evidence in the third-party’s affidavit that she told the police, “Before leaving I gave her my contact information including phone number, and my driving licence so she can take a photo”. The applicant submits that there is no mention of an insurance card. The applicant submits that she called the third-party following the accident on November 17, 2021 and November 18, 2021 to obtain her insurance information but the third-party did not respond.
26The applicant claims that she reported the accident on the day of the accident to the Toronto Police Services based on the information she had in her possession at the time of making the report. The applicant submits that as the third-party did not provide her with any insurance information at the time of the accident, she then contacted the Toronto Police Services on multiple dates to inquire and obtain the insurance information of the third party. She also submits that she emailed the Toronto Police Services on October 27, 2021, November 17, 2021, December 14, 2021, and February 5, 2022, to inquire and obtain the third-party’s insurance information. On September 18, 2023, she finally obtained the third-party’s insurance information from the police and contacted the respondent to initiate a claim.
27The applicant submits that there is no prejudice to the respondent as it has been provided with the applicant’s medical records wherein she has been reporting injuries from the accident. She submits that the respondent has sufficient time and resources to have the applicant’s medical documents reviewed and assessed by its own assessors. She submits that she would suffer prejudice if the Tribunal does not allow a hearing on the substantive issues.
28The find that the applicant failed to comply with section 32(1) of the Schedule.
29From the evidence, it is clear that the applicant did not notify the respondent within the timeframes set out in s. 32(1) of the Schedule, as she first notified the respondent of her intention to apply for benefits on September 15, 2023, almost two years after the accident. I find that the applicant has not provided a reasonable explanation for the delay.
30After considering the parties’ submissions, I do not find that the applicant’s explanation is credible or worthy of belief. I am not persuaded by the applicant’s argument that she made reasonable attempts to obtain the third party’s insurance information until she finally received the information on September 18, 2023.
31The applicant submits that the delay in reporting the accident to the respondent is because she did not have the third party’s insurance information and therefore did not know what insurance company to contact. I find that there are competing versions of whether the third party provided the applicant with her insurance information at the scene of the accident. Both parties agree that the third party provided her phone number and address. Upon review of the motor vehicle accident report, the third party’s address and telephone number were listed although the insurance company and number are not. On the Self-Reporting Collision Report, the third parties’ insurance information is provided. I find that the applicant had the third party’s telephone number and address. While the applicant claims that she called the third party on two occasions, November 17, 2021 and November 18, 2021, I find that there is no evidence that she tried to contact the third party again, left a voice message or sent correspondence at the address she was provided with.
32The applicant submits that she contacted the Toronto Police Services on October 27, 2021, November 17, 2021, December 14, 2021, February 5, 2022, April 8, 2022, August 28, 2023, August 30, 2023, and September 13, 2023. I find that there are no particulars provided as to whom the applicant spoke to or what she was told in these conversations. In addition, the applicant has not provided any submissions as to why no contact was made with the police for over a year between April 8, 2022 and August 28, 2023. The applicant submitted that she was working 60-hour weeks and was preparing her daughter for university which implies that part of her reason for not pursuing the insurance information was because she was too busy, and the delay is not attributable to an inability due to her accident-related impairments.
33In addition, I find that the applicant has not provided any particulars as to why she was finally successful on September 18, 2023, when she received the third parties’ insurance information, other than stating she obtained it from the police. No particulars are provided by the applicant as to how this information was communicated to her.
34While I find the applicant’s explanation sincere, it fails to meet the test for reasonableness. Consistent with the fourth factor in Horvath, a reasonable explanation must be assessed on a subjective-objective standard that considers an individual’s self-reported circumstances against what a reasonable person would do if faced with those circumstances. I do not find it reasonable that the applicant would not pay for the motor vehicle accident report or self-collision report. I further do not find it reasonable that the applicant did not continue to attempt to contact the third party, despite claiming she tried to call her in November 2021, by telephone or at the address she provided.
35I find that the two-year delay in reporting the claim for accident benefits has prejudiced the respondent by depriving it of the opportunity to obtain contemporaneous information regarding the applicant’s injuries, and to investigate and to assess the applicant’s claim. Given the passage of time, I am not persuaded that the applicant’s explanation is reasonable to relieve against the consequences of the failure to comply with the time limit.
36I find that the applicant is barred from proceeding to a hearing for failing to notify the respondent of the circumstances giving rise to a claim for benefits, in breach of s. 32(1). She has not provided a reasonable explanation for the delay pursuant to section 34. Therefore, in accordance with section 55(1)1, I find that the applicant is barred from proceeding with her application.
Compliance with s. 33 of the Schedule
37As I have found that the applicant is statute barred from proceeding with her application in breach of s. 32(1) of the Schedule, it is not necessary for me to deal with the second preliminary issue of whether the applicant is barred from proceeding to a hearing for all of the benefits claimed in the applicant because she failed to comply with s. 33 of the Schedule.
ORDER
38The applicant is statute barred from proceeding to a hearing for her claim for accident benefits. The application is dismissed.
Released: June 26, 2025
Melanie Malach
Adjudicator