Licence Appeal Tribunal File Number: 24-013829/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:
Jesus Navarrete
Applicant
and
Definity Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Marcelo Delgado, Paralegal
For the Respondent:
Veronica Gorrell, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Jesus Navarrete, 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 (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 with their claim for benefits as they failed to submit the application for benefits (OCF-1) within the time prescribed in the Schedule?
RESULT
3The applicant is not statute-barred from proceeding with his application before the Tribunal.
PROCEDURAL ISSUES
The applicant’s submissions and evidence at paragraph 2 are admissible
4In its reply submissions, the respondent requests that the applicant’s submissions at Part III, paragraph 2 be excluded from the hearing record.
5The respondent submits that the applicant has provided a new explanation for the delay in his submissions, that he was not the owner of the car or the policyholder, and the respondent submits that it has suffered prejudice by these submissions.
6I find that the applicant is entitled to put forward their submissions on this issue and just because they are submissions the respondent has not seen before, doesn’t make it prejudicial. The respondent had a week to file their reply submissions after receiving the applicant’s submissions. This is not prejudice, since the respondent had an opportunity to reply to the points raised by the applicant.
7I find that the applicant’s submissions at Part III, paragraph 2 are admissible since the respondent had the opportunity to address this evidence in its reply. Further, I find that the respondent has not explained how they are prejudiced by including these submissions in the hearing record.
Background
8On July 18, 2023, the applicant was involved in a motor vehicle accident, wherein his friend, the owner of the vehicle and policyholder, Cristhian Martinez Garcia was the driver. Cristhian Martinez Garcia notified the respondent on July 18, 2024, or July 21, 2023, that he and the applicant were involved in the accident. There is no dispute that the respondent received notice within seven days after the accident that the applicant was also involved in the accident. It is unclear, however, whether the respondent had any conversations with the applicant after the accident, or whether the applicant understood the substance of any such conversation. Subsequently, the respondent received the OCF-1, on May 17, 2024, which is beyond the time prescribed by s. 32(1) of the Schedule. At the case conference, the respondent raised a preliminary issue that the 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.
9However, s. 34 of the Schedule provides that the applicant’s failure to comply with the time limit in s. 32 does not automatically disentitle him to benefits as long as he has a reasonable explanation for the delay.
The Law
10Section 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.
11Once 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.
12Section 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.
13Section 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.
14The 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.
ANALYSIS
Delivery of the application for accident benefits to the applicant by email
15I find that the respondent has failed to prove on a balance of probabilities that it delivered an application for accident benefits to the applicant to a valid email address on July 25, 2023, or that the applicant agreed to receive the documents by email in accordance with s. 64 of the Schedule. I also find that the respondent has not established that it contacted the applicant on July 25, 2023, and explained his right and the process to claim accident benefits or confirmed that he understood any such conversation without the assistance of a Spanish language interpreter.
16Section 64(2)(e) provides that “any document, including a notice in writing, required or permitted under this Regulation to be given to a person may be delivered, by electronic means, if the intended recipient of the document consents to delivery by electronic means”.
17The respondent submits that the applicant reported his injuries to the respondent on July 21, 2023, and he spoke to the respondent’s representative, James Kyeremeh on July 25, 2023. Firstly, the respondent does not explain to whom the applicant reported the accident on July 21, 2023, or why the respondent did not speak to the applicant about his right and the process to claim accident benefits when he allegedly reported the accident.
18The respondent submits that the applicant was aware of his rights to apply for accident benefits and the process for same. The respondent does not indicate whether there was a language barrier with the applicant, or exactly what explanation he received about his rights, or what assistance he received in the process to claim accident benefits. I find that the respondent does not explain and has not pointed me to any evidence regarding the substance of the conversation with the applicant on July 25, 2023, or whether he understood the substance of the conversation without the assistance of a Spanish language interpreter.
19The respondent submits that on July 25, 2023, it provided an application for accident benefits to the applicant by email to: Jesus_NG@icloud.com, however, there is no indication that the applicant agreed to receive the documents by email, in accordance with s. 64 or whether he received the package. The respondent submits that the applicant failed to submit an OCF-1 form until May 17, 2024, which was 304 days after the July 18, 2023 accident. On June 3, 2024, after receiving the OCF-1, the respondent requested a reasonable explanation, a completed statutory declaration, and other documents pursuant to s. 33 of the Schedule.
20The respondent relies on an email correspondence to the applicant on July 25, 2023 to email address: Jesus_NG@icloud.com with several attachments, including summary of basic accident benefits; insurance fraud; application for accident benefits (“OCF-1”); employer’s confirmation of income (“OCF-2”); disability certificate (“OCF-3”); authorization to release medical information (“OCF-5”); expense claim form (“OCF-6”); adding signature to pdf; consent authorization; authorization for release of health practitioners clinical notes; and authorization for release of hospital records. The respondent stated in the email that the applicant may contact the sender or visit the website at: https//www.fsrao.ca/consumers/auto-insurance, to learn about his right to claim accident benefits.
21The applicant submits that he arrived in Canada in February 2019 and took approximately four months of English as a Second Language (“ESL”) classes. The applicant submits that on July 18, 2023, the owner of the car, and policyholder, Christhian Martinez Garcia reported the accident to the respondent. The applicant further submits that since he was not the policyholder, he did not have any information about insurance coverage for a person involved in an accident. In addition, the applicant argues that since he was under house arrest after the accident, he was unable to seek legal advice or medical attention for his accident-related injuries.
22I find that the respondent’s July 25, 2023 email does not indicate that it explained the process to the applicant of the forms to be completed, or the attachment which explains his right to apply for accident benefits. In addition, since the email invites the applicant to contact the sender to explain his right to claim accident benefits, it can be inferred that the respondent did not explain these rights to the applicant if there was a conversation with him on July 25, 2023. I find that the respondent has not explained whether it provided an interpreter in the Spanish language to the applicant to ascertain whether he accepted the documents by email in accordance with s. 64 of the Schedule, or whether he understood the application process.
23I note that the only document with the applicant’s email address is a disability certificate (“OCF-3”) dated May 9, 2024, completed by Dr. Khshayar Khoshmashrab, chiropractor, of Mackenzie Medical Rehabilitation Centre, and signed by the applicant, which identifies the applicant’s email address as: jn047613@gmail.com. I note that the email address on the OCF-3 is different from the email address used by the respondent in the July 25, 2023 email. I also note that the OCF-1, treatment plans and reports provided by the applicant indicate that he speaks the Spanish language and he requires an interpreter.
24The 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 applicant submits that he did not have a conversation with respondent, and the respondent had notice of the applicant’s claim within one week of the accident through Christhian Martinez Garcia. I find that although the respondent relies on the July 25, 2023 email, there is no explanation how they obtained this email address, whether the applicant agreed to receive documents at this address, or whether the respondent had a conversation with the applicant either before or after the email was sent. I find that the respondent had the opportunity to obtain information about the applicant’s involvement in the accident and reach out to him to provide him with an application by regular mail. The explanation is clearly credible and worthy of belief as the applicant does not acknowledge a conversation with the respondent or receipt of the application package. Although ignorance of the law is not reasonable, the applicant relied on the conversations between Christhian Martinez Garcia and the respondent, and his house arrest prevented him from seeking medical attention with a treating facility with some familiarity with the process to provide assistance with completion of the OCF forms.
25I find that the respondent has not established that it complied with s. 32(2) of the Schedule in providing an application package to the applicant with an explanation of his right and the process to apply for accident benefits.
The applicant has established a reasonable explanation for the delay
26I find that the applicant has established a reasonable explanation for the delay, because the respondent has not provided sufficient evidence of a conversation with the applicant on July 25, 2023, given not only the applicant’s limited English language skills but also the lack of evidence that he agreed to receive an application package by email, or whether he received the application.
27The respondent submits that it has suffered prejudice by the delay since it has missed the opportunity to obtain contemporaneous medical documentation from the applicant or to investigate and assess the applicant’s claim. I 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.
28I find that the applicant provided a reasonable explanation for delay under s. 34 and he may proceed with his claim at the Tribunal because the respondent has not demonstrated that it satisfied its obligations under s. 32(2) of the Schedule.
ORDER
29The applicant may proceed with his application.
Released: July 16, 2025
Lisa Holland
Adjudicator