Martinez Garcia v. Definity Insurance Company, 2025 CanLII 61175

Citation: Martinez Garcia v. Definity Insurance Company 2025 ONLAT 24-013386/AABS-PI

Licence Appeal Tribunal File Number: 24-013386/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:

Cristhian Martinez Garcia

Applicant

and

Definity Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Marcelo Delgado, Paralegal

For the Respondent: Veronica Gorrell, Counsel

HEARD: By way of written submissions

OVERVIEW

1Cristhian Martinez Garcia, the applicant, was involved in an automobile accident on July 18, 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 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 their claim for benefits as they failed to submit the application for benefits (OCF-1) within the time prescribed by the Schedule?

RESULT

3The applicant is statute-barred from proceeding with his 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 July 18, 2023. He reported the accident to the respondent three days later on July 21, 2023, and on July 25, 2023 the respondent’s claims representative sent the applicant the application package, a summary of accident benefits and a list of nearby treating facilities. The applicant did not submit his completed OCF-1 until May 16, 2024.

8The respondent submits that the applicant should be barred from proceeding with his claim pursuant to s. 55 of the Schedule, because he failed to submit his OCF-1 within 30 days after receiving the application forms, as required by s. 32(5). Although the application forms were sent to the applicant on July 21, 2023, the completed OCF-1 was not provided until approximately 10 months later. The respondent submits that the applicant has not provided a reasonable explanation for the delay.

9The applicant does not dispute that he first provided his OCF-1 to the respondent on May 16, 2024, 10 months after the accident. However, he argues that the respondent never questioned him about his personal injuries when he called after the accident. The applicant also submits that he has a reasonable explanation for the delay. He claims that as a newcomer to Canada, he was unsure of his legal rights to claim accident benefits following the accident, and that he thought that his post-accident psychological and physical impairments would get better.

Late-filed OCF-1 and Reasonable Explanation for the Delay

10There is no dispute that the applicant did not submit his OCF-1 within the timelines stipulated in s. 32(5) of the Schedule. However, the applicant argues that he has a reasonable explanation for the delay pursuant to s. 34 of the Schedule.

11I find that the applicant has not established a reasonable explanation for the delay.

12The applicant submits that the respondent failed to assist him in applying for accident benefits. He cites the Divisional Court decision Hussein v. Intact Insurance Company, 2025 ONSC 842 to argue that since the respondent did not question him about his injuries or help him in applying for benefits, he should be entitled to claim accident benefits.

13I am not persuaded by the applicant’s argument. I agree with the respondent that Hussein v. Intact is distinguishable from the present case. In Hussein, the insurer did not send any application forms or information on applying for accident benefits to the claimant, arguing that the claimant had not reported injuries, but only property damage at the time of the accident. The Divisional Court found that the insurer should have inquired whether the claimant had sustained any injuries, and sent the necessary application forms and explanation of benefits. In the present case, there is no dispute that the applicant reported injuries when he called the respondent soon after the accident. And unlike the insurer in Hussein, the respondent sent the applicant the application package, a summary of accident benefits and a list of nearby treating facilities.

14With respect to the applicant’s additional arguments that he was unaware of his legal rights and that he thought that his injuries would get better, the respondent has cited a number of Tribunal decisions where these arguments were not found to be reasonable explanations pursuant to s. 34 of the Schedule. In Robertson v. CAA Insurance Company, 2025 CanLII 10792 (ONLAT), Rios v. Chieftain Insurance, 2021 CanLII 124033 (ONLAT) and Kasbar v. Travelers, 2021 CanLII 30412 (ONLAT) the Tribunal found that ignorance of the law in cases of unsophisticated applicants, and believing that the injuries would resolve, were not reasonable explanations for the purposes of s. 34.

15The applicant has not cited any caselaw in support of his position that such reasons constitute reasonable explanations. The applicant does not dispute that he was aware of his injuries if not immediately, then soon after the accident. This was not a situation where there were delayed onset of symptoms. Rather, in his submissions, the applicant states that he was unable to return to work due to his physical and emotional symptoms. The Tribunal has consistently found that the belief that the injuries would resolve, or that a person was unaware of how to claim benefits does not exempt the claimant from the timelines in s. 32 of the Schedule.

16I further find that the applicant’s delay in submitting his OCF-1 has resulted in prejudice to the respondent. I agree with the respondent that given the approximate 10 month delay, it has been deprived of its ability to contemporaneously assess the applicant. The applicant has not established hardship outweighing this prejudice.

CONCLUSION AND ORDER

17The applicant is barred from proceeding with his application pursuant to s. 55(1) as he failed to submit his OCF-1 within the timeframes set out in the Schedule. He has not provided a reasonable explanation for the delay.

18The application is dismissed.