Licence Appeal Tribunal File Number: 25-000958/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:
Adriel Domingue
Applicant
and
Definity Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Maria Papadopoulos, Paralegal
For the Respondent: Jeremy Hanigan, Counsel
HEARD: By way of written submissions
OVERVIEW
1Adriel Domingue, the applicant, was involved in an automobile accident on December 12, 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 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?
RESULT
3The applicant is not barred from proceeding with his application.
ANALYSIS
Background and Parties’ Positions
4The respondent submits that it was first notified of the December 12, 2023 accident 61 days later, on February 12, 2024, when the applicant’s legal representative sent in an Application for Accident Benefits (OCF-1). It argues that this is well-outside the seven day timeline stipulated in s. 32(1) of the Schedule. The respondent further submits that the applicant has not provided a reasonable explanation for the delay. In an email from the applicant’s legal representative dated April 12, 2024, it was stated that the delay in providing the OCF-1 was due to the fact that the legal office was unable to coordinate a meeting with the applicant due to the holiday season. The respondent submits that this reason is neither credible nor reasonable.
5The applicant argues that he promptly informed the respondent of the accident, and that a property damage claim was opened. He provides as evidence, email correspondence between the adjuster and the applicant from December 18, 27 and 28, 2023 where the total loss of the vehicle was discussed. As such, the applicant argues that he informed the respondent within seven days of the accident, and that the brief delay in filing the OCF-1 was primarily due to the year-end holiday period, but also due to the operational demands of running his business during the holiday season. He further submits that the respondent has not suffered any prejudice from the brief delay, since the claim was already open and being processed for property damage, the respondent had all relevant details concerning the incident and could have investigated the matter.
6In its reply submissions, the respondent argues that the fact that the applicant had informed the insurer of the accident and damage to the vehicle within the seven day timeline, is not sufficient to meet the requirements of s. 32(1) of the Schedule. Rather, s. 32(1) requires that the applicant specifically notify the insurer of his intention to apply for accident benefits.
Law
7Section 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 day.
8Once 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 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.
9Section 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.
10Pursuant to section 55(1)1, 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 applied for the benefit within the times set out in the Schedule.
Did the applicant comply with s. 32(1) of the Schedule?
11I find that the respondent has not met its onus to prove that the applicant was non-compliant with s. 32(1) of the Schedule.
12Although in its initial submissions the respondent argued that it was first notified of the accident on February 12, 2024, when the OCF-1 was sent in, the applicant has submitted evidence that the respondent was in fact notified within seven days of the December 12, 2023 accident. In email correspondence dated December 15, 18, 27 and 28, 2023 between the applicant and the respondent, the accident and property damage were discussed and the vehicle was deemed a total loss.
13I am not persuaded by the respondent’s argument, raised in its reply submissions, that simply informing an insurer of an accident and damage to the vehicle is insufficient to meet the notice requirements of s. 32(1) of the Schedule. The respondent has not provided any caselaw or binding authority in support of its argument that s. 32(1) requires an insured person to specifically raise the issue of his intention to apply for accident benefits, when first notifying the insurer.
14Rather, the recent Divisional Court decision, Hussein v. Intact Insurance Company, 2025 ONSC 842, found that the notice requirement of s. 32(1) was met when the insured had advised the insurer that he had been in an accident. At para 40 the Court states “(a) reasonable insurer would assume that an insured who has been in an accident intends to access all the benefits available to them under their policy.” The Court went on to find that at this point, the insurer should have inquired whether the insured had sustained any injuries and clarified which benefits they were seeking. Since the insurer chose not to ask any more questions, it should have acted on the assumption that the claimant would want to apply for accident benefits, and sent the necessary application forms and explanation of benefits as required by s. 32(2).
15I find the reasoning in Hussein persuasive, and note that this decision is binding upon me. The respondent has not provided any submissions or led evidence as to whether it had inquired whether the applicant had sustained any injuries or whether he would be seeking any accident benefits, when it was notified about the accident. The email correspondence provided by the applicant establishes that the respondent was aware of the accident and that the vehicle had sustained heavy damage, but there is no indication that the applicant was asked about any injuries.
16As such, I find that the applicant did comply with s. 32(1) of the Schedule when he notified the respondent at various points in December 2023 about the accident. Although accident benefits were not raised at that time, I agree with the reasoning in Hussein that this was sufficient notice to the respondent of an intention to seek benefits, pursuant to s. 32(1).
Did the applicant comply with s. 32(5) of the Schedule?
17I find that the respondent has not established that the applicant was non-compliant with s. 32(5) of the Schedule.
18In its reply submissions, the respondent raises the additional argument that the applicant provided his OCF-1 outside of the 30 day timeline stipulated in s. 32(5) of the Schedule. I am not persuaded by the respondent’s argument.
19In order for the respondent to be able to claim that the applicant should be barred from proceeding with his application due to his failure to submit his OCF-1 within 30 days (s. 32(5)), the respondent must first establish that it complied with its obligations under s. 32(2) of the Schedule. Section 32(2) states that once an insurer receives notice of an applicant’s intention to apply for accident benefits, it must provide the applicant with the appropriate application package. The respondent has not provided any submissions or evidence as to when, or if, it had provided the applicant with the OCF-1 and relevant forms and information.
20Given that the respondent has not established that it complied with s. 32(2) of the Schedule, I find that it has not met its onus to prove that the applicant submitted his OCF-1 outside of the 30 day timeline provided in s. 32(5). Accordingly, it is not necessary to address the respondent’s arguments as to whether the applicant had a reasonable explanation for the delay in submitting the OCF-1.
CONCLUSION AND ORDER
21The applicant may proceed with his application to the substantive issue hearing.
Released: July 17, 2025
Ulana Pahuta
Adjudicator