Licence Appeal Tribunal File Number: 25-000956/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 October 24, 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 may proceed with his application for accident benefits.
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 to the benefit, 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 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.
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 (“Horvath”), 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.
7Pursuant 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 have not applied for the benefit within the times set out in the Schedule.
Parties’ Positions
8The respondent submits that the applicant failed to notify it of the October 24, 2023 accident until December 8, 2023, 45 days later. It argues that this is well-outside the seven day timeline required by s. 32(1) of the Schedule. The respondent further submits that the applicant has not provided a reasonable explanation for the delay. As such, the respondent argues that the applicant should be barred from proceeding with his application pursuant to s. 55(1)1 of the Schedule.
9The applicant argues that he did inform the respondent of his intention to seek accident benefits within the stipulated seven days. He points to an email from the respondent dated October 30, 2023, only six days after the accident, where the respondent sent him the accident benefits package (including the OCF-1). As such, he argues that the respondent was clearly notified of the accident.
10Alternatively, the applicant submits that he has a reasonable explanation for the delay in notifying the respondent. He argues that he was initially uncertain as to whether the incident would qualify as an accident. The accident arose as the applicant was exiting an Uber and the driver began to drive away, causing the applicant to trip. The applicant asserts that after speaking with counsel in December 2023, he immediately submitted an OCF-1.
11In its reply submissions, the respondent argues that the October 30, 2023 email relied upon by the applicant, establishes that the applicant in fact initially notified a different insurer of the accident. It points to the fact that a different adjuster, with a different claim number than the present application, are referenced in the email. Although both the insurer referenced in the October 30, 2023 email and the insurer in the present application are identified as “Definity”, the respondent argues that this is a corporate entity with a number of different subsidiaries. The two different claim numbers reflect separate motor vehicle liability policies, one as an Uber occupant and one as the applicant’s personal policy. As such, the respondent argues that the initial notification to the “wrong insurer” does not constitute notice for the purposes of s. 32(1) of the Schedule.
Did the applicant comply with s. 32(1) of the Schedule?
12I find that the applicant did not comply with the timeline in s. 32(1) of the Schedule. I agree with the respondent that the October 30, 2023 email, which the applicant relies on to establish notice, has a different claim number than the present application. Although both of the entities were referred to as “Definity”, it appears that the applicant first notified an insurer under a different policy. Accordingly, the respondent has established that it was first notified of the accident on December 8, 2023, 45 days after the accident and outside of the seven day timeline.
13However, the applicant may still proceed with his application if he has a reasonable explanation for the delay pursuant to s. 34 of the Schedule.
Reasonable explanation
14I find that the applicant has established that he has a reasonable explanation for his delay in notifying the respondent of his intention to apply for accident benefits.
15The applicant submits that he was uncertain if the incident with the Uber vehicle qualified as a motor vehicle accident under the Schedule, and that it was only after he consulted with counsel about a different accident, that he realized that he had a claim. The respondent submits that this explanation is not credible or worthy of belief, since the applicant had legal representation for over a year prior to the accident, stemming from a prior June 2022 MVA. Given the applicant’s ongoing application from the 2022 MVA, the respondent argues that the applicant was well-aware of the accident benefits process.
16I find the applicant’s explanation to be credible and worthy of belief. Although the applicant may have been familiar with the procedure for claiming accident benefits, I can accept that given the facts of the incident, he may not have been aware that stumbling as his Uber began to move could constitute an “accident” for the purposes of the Schedule. In his Examination Under Oath, the applicant stated that he initially did not realize that he had “recourse” since it was “just me coming out of a car”. I find that this explanation meets the low threshold of being credible or worthy of belief.
17The next stage of analysis under s. 34 of the Schedule and applying the principles in Horvath, involves a consideration of both personal characteristics and a “reasonable person” standard, and a balancing of prejudice to the respondent, versus hardship to the applicant. When applying these factors I find that the applicant has established a reasonable explanation for the delay.
18The respondent submits that ignorance of the law has consistently been found by the Tribunal not to be a reasonable excuse, even in situations where the applicant’s vehicle was not involved or in circumstances where the accident was “atypical”. In support of its position, the respondent cites Tribunal decisions Hurley v Co-Operators General Insurance Company, 2025 CanLII 15970 (ONLAT) and Rios v Chieftain Insurance, 2021 CanLII 124033 (ONLAT).
19While I agree with the respondent that the Tribunal has consistently found that ignorance of the law alone is not a “reasonable explanation”, I find that the analysis required by s. 34 is highly fact-specific and contextual. In the present case, not only was the applicant unsure whether the particular facts of his case could constitute a motor vehicle accident, but the evidence also establishes that the applicant initially notified the ”incorrect” insurer. While the applicant may have been aware of the accident benefits process generally, given the present unusual facts I do not find the month and a half delay in notifying the respondent, to be unreasonable.
20In the decisions relied upon by the respondent, Hurley and Rios, the delay in notifying the insurers was significant – almost two years (Hurley) and almost one year (Rios). In contrast, in the present matter the applicant notified the respondent only 45 days after the accident. In my view, this short delay in notifying the “correct” insurer mitigates against potential prejudice to the respondent. Further, I must consider that the Schedule is consumer protection legislation. The Divisional Court in Hussein v. Intact Insurance Company, 2025 ONSC 842, has stated that consumers who have motor vehicle accidents are in a vulnerable position, particularly in the period immediately following the accident, and that “(s)even days is a very short notice period”.
21The respondent submits that it has suffered prejudice by the delay since it has been precluded from properly assessing and investigating the claim for the 45 day period. In my view, the 45 day delay is not significant, given the particular facts of this case. Given the minimal delay 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.
CONCLUSION AND ORDER
22The applicant may proceed with his application to the substantive issue hearing.
Released: July 24, 2025
Ulana Pahuta
Adjudicator