Licence Appeal Tribunal File Number: 24-012392/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:
Julie Cunningham
Applicant
and
Certas Home and Auto Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Julie Cunningham, Applicant
For the Respondent:
Michael Chadwick, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Julie Cunningham, the applicant, was involved in an automobile accident on December 25, 2017, 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, Certas Home and Auto Insurance Company, 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 they 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, in violation of the provisions of s. 32(1) of the Schedule?
RESULT
3The applicant is not statute-barred from proceeding with her application before the Tribunal.
ANALYSIS
Background
4The applicant was involved in an accident on December 25, 2017, and notified the respondent’s agent, Sigma on December 25, 2017 that she was involved in an accident. The respondent submits that the applicant did report the accident on December 25, 2017, and it opened a property damage claim on December 26, 2017. The respondent argues that the applicant did not report any injuries or intention to claim accident benefits until August 9, 2022.
5Subsequently, on August 9, 2022, the applicant notified the respondent that she was involved in an accident on December 25, 2017, and she intend to pursue a claim for accident benenfits. The respondent provided her with an accident benefits application package dated August 18, 2022. The applicant provided the respondent with a completed application for accident benefits (“OCF-1”), dated September 9, 2022. At the case conference, the respondent raised a preliminary issue that the applicant is barred from proceeding with her claim because she did not comply with the timelines set out under s. 32(1) of the Schedule, and she has not provided an explanation for the delay.
The Law
6Section 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 to the benefit, or as soon as practicable after that date.
7Once 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 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.
8Section 34 states that if the insured person does not comply with the time limits prescribed under Part VIII of the Schedule, which includes s. 32, the insured person may still be entitled to benefits if they have a reasonable explanation for the delay.
9The 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. 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.
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.
Did the applicant comply with s. 32(1) of the Schedule?
10I find that the respondent has not met its onus to prove that the applicant was non-compliant with s. 32(1) of the Schedule.
11In its reply submissions, the respondent argues that although the applicant called on the day of the accident, the log notes suggest that the applicant did not report any injuries, and she only reported property damage to her vehicle. The respondent has also produced portions of the property damage file, including a log note dated December 26, 2017, in which the applicant reported that her vehicle rolled over, and the appraised damage was over $25,000.00, which was a total loss.
12The respondent submits that since the applicant did not report any injuries or specifically request to make a claim for accident benefits when she called the respondent on December 25, 2017, she is statute-barred from making a claim for accident benefits, pursuant to s. 32. The respondent further submits that the applicant did not advise the respondent that she is pursuing a claim for accident benefits until August 9, 2022, which was 4 years and 8 months after the December 25, 2017 accident. The respondent submits that on August 18, 2022, it sent the applicant an application package, after receiving notice of the accident on August 9, 2022, and the applicant returned a signed OCF-1 dated September 9, 2022.
13The respondent further submits that the applicant has not provided a reasonable explanation for the delay.
14There is no dispute that the applicant submitted her completed Application for Accident Benefits (“OCF-1”) on September 9, 2022, within the 30-day time limit of receiving the application package.
15The applicant submits that the 68 month delay was caused by the extent of her injuries; the negligence of her family physician; and the respondent’s failure to send her an application package.
16Given that the respondent raised the preliminary issue of the applicant’s compliance with s. 32(1) of the Schedule, the onus rests with the respondent to establish that the applicant failed to comply with the seven-day timeline. I find that it has not met its burden on this point.
17I am not persuaded by the respondent’s argument that although the applicant had called immediately after the accident, only the property damage claim was discussed, and this was not sufficient notice as required by s. 32(1). The respondent argues that it was not sufficient for the applicant to report the accident, but rather, she was required to report her injuries at the time. The respondent argues that once the applicant reported no injuries, there is no further obligation on the insurer to provide application forms.
18I agree with the applicant, that in the recent decision Hussein v. Intact Insurance Company, 2025 ONSC 842, the Divisional Court found that the notice requirement of s. 32(1) was met when the insured had advised the respondent that she had been in an accident. The Court went on to state that at this point, the insurer should not only make inquiries whether the applicant had sustained any injuries, but also to clarify which benefits the insured was seeking and send the necessary application forms and explanation of benefits as required by s. 32(2). I am bound by the Court’s decision in Hussein, and I apply it here.
19I find that it is clear that the applicant notified the respondent of the circumstances of the accident on December 25, 2017. Therefore, pursuant to s. 32(1), I find that the applicant notified the respondent within seven days or as soon as practicable after the accident and thereby, in compliance with s. 32(1).
Did the respondent comply with its obligations under s. 32(2) of the Schedule
20I find that the respondent did not provide a valid notice in accordance with s. 32(2) of the Schedule and the applicant is not barred from proceeding with her application. Accordingly, the 30-day time limit under s. 32(5) had not been triggered.
21Pursuant to s. 32(2), the respondent was required to promptly provide the applicant with the appropriate application forms. The respondent submits that when the applicant notified its agent, Sigma on December 25, 2017 that she was involved in an accident, she did not state that she was injured, nor did she request an accident benefits application package.
22The applicant submits that the respondent did not make inquiries regarding her injuries or explain her right to claim accident benefits.
23I find the reasoning in Hussein persuasive and note that this decision is binding upon me. The respondent has not clarified the reason that Sigma did not make inquiries to the applicant whether she was seeking accident benefits or provide an application package with the necessary application forms and explanation about accident benefits.
24Given that I have found that the applicant was compliant with s. 32(1) of the Schedule, the respondent has not established that the applicant is statute-barred from proceeding with her application.
ORDER
25The applicant may proceed with her application to the substantive issue hearing.
Released: June 20, 2025
Lisa Holland
Adjudicator