Citation: Caldwell v. Trillium Mutual Insurance Company, 2025 ONLAT 24-014310/AABS

Licence Appeal Tribunal File Number: 24-014310/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:

Bryan Caldwell

Applicant

and

Trillium Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Bernard Trottier

APPEARANCES:

For the Applicant: Michael Gerhard, Counsel Brandon Ferrante, Paralegal

For the Respondent: Laura Emmett, Counsel

Heard by videoconference: July 2 and 3, 2025

OVERVIEW

1Bryan Caldwell (the “applicant”) claims he was involved in an automobile accident on May 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 Trillium Mutual Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The parties participated in a pre-hearing case conference on February 20, 2025. At the case conference, the parties agreed that the issues in dispute consisted of two preliminary issues and five substantive issues. The five substantive issues were three treatment plans, an award under s. 10 of Reg. 664, and interest on any overdue payments.

3At the outset of the hearing, the parties indicated that, on consent, the two-day videoconference hearing would address only the two preliminary issues. The five substantive issues were withdrawn by the applicant. The parties indicated that, before the hearing, the parties reached an agreement that the applicant would not be barred from proceeding to claim the benefits for the substantive issues, pending a decision on the preliminary issues.

PRELIMINARY ISSUES IN DISPUTE

4The preliminary issues in dispute are:

1. Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?
2. Is the applicant barred from proceeding to a hearing as he 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

5The applicant did not suffer an impairment as a result of operating his vehicle, and therefore he was not involved in an “accident” as defined in s. 3(1) of the Schedule.

6The applicant failed to notify the respondent of the circumstances giving rising to a claim for benefits no later than the seventh day after the circumstances arose, or as soon as practicable after that day.

7For both of these reasons, the applicant is barred from proceeding to a hearing on his claim for accident benefits.

8The applicant’s claim for accident benefits is dismissed.

ANALYSIS

Background

9In 2015, the applicant was diagnosed with osteopenia, which causes degradation and weakness of the bones. He was designated permanently disabled and he has collected Ontario Disability Support Program payments since 2015. The applicant lives in a rented mobile home on a farm near Gowanstown, Ontario, where he has lived since 2020. Since that time, he has helped with various unpaid chores on the farm to help cover his rent.

10On April 7, 2023, the applicant bought a 1990 GMC Vandura camper van (the “vehicle”). Because of the age of the vehicle and the odometer reading (over 270,000 km), it required a safety inspection from a certified mechanic. The applicant arranged an appointment at the Canadian Tire garage (“Canadian Tire”) in Listowel (about 5 km from Gowanstown), and he brought the vehicle in for an inspection on April 20, 2023. Canadian Tire completed a safety inspection and performed repairs, and they issued a safety certificate on May 23, 2023.

11The applicant testified he was driving the vehicle on May 24, 2023, between 8:00 and 8:30 a.m., on a clear day near Grand Bend, Ontario, at the posted speed limit of 80 km/h, when an animal crossed the road, causing several vehicles ahead of him to brake. He testified that he braked to avoid a rear-end collision with other vehicles, and that there were no collisions. He testified that his seat belt did not engage, and that his face and forehead hit the steering wheel. He called Canadian Tire later that morning to demand a refund of the $2,511.62 he had paid for the safety inspection and repairs.

12On May 30, 2023 the applicant filed a formal complaint with Canadian Tire and again requested a refund. On June 1, 2023, the applicant filed a complaint with the Ministry of Transportation of Ontario, Commercial Safety & Compliance Branch (the “MTO”), under the Highway Traffic Act, claiming that Canadian Tire had issued a deficient safety certificate.

13On June 14, 2023, the applicant transferred his automobile insurance brokerage relationship from Orr Insurance Huron Inc. (“Orr”) to Josslin Insurance Brokers Limited (“Josslin”). Trillium Mutual Insurance, the respondent, was the underwriter before and after the transfer.

14On July 5, 2023, the applicant sent a demand letter to Canadian Tire, through his then legal representative, Fallis McMillan & Ferrier (“Fallis”), requesting that Canadian Tire pay the applicant $9,128.87, for a refund of the $2,511.62 requested previously, plus additional amounts for vehicle repairs performed by Larry Hudson Chevrolet Buick GMC and by Speedy Glass, as well as for replacement licence plates, towing charges and legal fees.

15On August 18, 2023, the applicant reported the incident to Josslin, who then informed the respondent of the incident. In turn, the respondent notified Orr, because they were the broker of record on May 24, 2023. Orr completed an Automobile Loss Notice on August 18, 2023.

16The applicant filed an Application for Accident Benefits/OCF-1, dated August 30, 2023, through another legal representative, T Shah Personal Injury Legal Services PC, that was sent to the respondent on September 7, 2023.

Was the incident an “accident” as defined by the Schedule?

17I find that the applicant has not demonstrated that he was involved in an accident as defined by s. 3(1) of the Schedule.

18Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”. The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused his injuries.

19The applicant submits that he satisfies the two-part test of whether an incident is an accident, as confirmed by the Ontario Court of Appeal in Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 (“Economical”). The two parts are as follows:

1. The purpose test: Did the incident arise out of the use or operation of an automobile? and,
2. The causation test: Did the use or operation of an automobile directly cause the impairment?

20The applicant argues that there is no doubt that the incident arose out of the use or operation of his automobile, and that the use or operation directly caused his impairment. For these reasons, the applicant argues that the first preliminary issue raised by the respondent should be dismissed.

21The respondent argues that the applicant does not meet the purpose test because the applicant did not provide contemporaneous evidence that the incident that he described occurred at all.

22The respondent argues that the applicant does not meet the causation test because, even if the incident occurred, the applicant did not provide contemporaneous evidence that the operation of his vehicle directly caused an impairment.

Was there an incident that caused the applicant to brake and his seatbelt to fail?

23I find that there is sufficient evidence that there was an incident on May 24, 2023 (the “incident”) involving braking the vehicle and a seat belt failure. The applicant therefore meets the purpose test.

24The respondent argues that the applicant has not presented contemporaneous evidence that the incident he described in his OCF-1 dated August 30, 2023 occurred at all, and therefore he does not meet the purpose test.

25The respondent points to correspondence between the applicant and outside parties (not the respondent or its brokers) between May 24, 2023 and August 18, 2023 (a period of over 12 weeks) and argues that it defies logic that, in the 12-week period, there are so few documented references to the incident. The respondent submits that there is no eye-witness report, no property damage report, and no medical reference to any incident.

26The respondent submits that there are noteworthy inconsistencies in the applicant’s recounting of the incident. The respondent posits that the applicant is tailoring his testimony to fit a narrative. The OCF-1 dated August 30, 2023, indicates that the incident occurred on May 24, 2023, at 11:00 a.m. A second OCF-1, dated September 21, 2023, indicates that the incident occurred between 10:00 and 11:00 a.m. During the applicant’s examination under oath (“EUO”), conducted on October 24, 2023, the applicant provided a statement that the incident occurred between 10:00 and 11:00 a.m. At the hearing, the applicant testified that the incident happened between 8:00 and 8:30 a.m. The respondent submits that the applicant’s phone records demonstrate that the applicant was near Listowel between 10:00 and 11:00 a.m. and that he could not have been near Grand Bend (about a 1.25-hour drive away), as reported in the OCF-1s and in his EUO. For this reason, the respondent submits that the applicant’s description of the incident was fabricated.

27The applicant testified that, when he signed the OCF-1s and provided his statement during the EUO, he did not have a clear memory of the time of day of the incident. He testified that, after reviewing his phone records, he had a clearer memory of the time of day of the incident, which he now maintains happened between 8:00 and 8:30 a.m.

28The applicant submitted into evidence Canadian Tire customer case notes, dated May 30, 2023, that indicate that the applicant said that, on May 24, 2023, he was in an accident and his seat belt did not work. The case notes indicate that the applicant wanted his money back for his claim of a deficient safety check.

29The applicant also submitted into evidence the demand letter from Fallis, where it states that, on May 24, 2023, he braked hard while driving and the seat belt did not engage, resulting in his head and face hitting the steering wheel.

30The respondent submitted into evidence a statement from Chanelle MacMillan, seasonal manager of Canadian Tire, dated August 2, 2023, provided to the MTO as part of their investigation into whether Canadian Tire had failed to perform a proper safety inspection. The MTO had initiated an investigation following the complaint to the MTO from the applicant. From Ms. MacMillan’s recollection of her phone conversation with the applicant on May 24, 2024, she indicated that the applicant stated that he had “slammed on the brakes while driving, and that the seatbelt did not lock”. She stated further that the applicant commented, “if that had been an accident, I could have been injured.”

31I accept the applicant’s testimony that there was a seat belt failure on August 24, 2023, that led him to file complaints with Canadian Tire and the MTO. I accept, as well, the applicant’s testimony that he had a clearer memory of the time of day of the incident after reviewing his phone records. While there are time-of-day discrepancies between the applicant’s OCF-1s, EUO and his testimony in the hearing, I do not find that they are material such they would lead me to find that a seat belt failure did not happen.

32I am satisfied that the applicant has met his onus of demonstrating that there was an incident involving braking his vehicle on May 24, 2023. While not extensive, the documented evidence before me demonstrates, on a balance of probabilities, that there was an incident where the applicant braked the vehicle, and he experienced a seat belt failure.

Did the operation of the applicant’s vehicle directly cause an impairment?

33I find that there is insufficient medical evidence that the applicant suffered an impairment as a result of operating his vehicle on the date of the incident. I find that the applicant has not met the causation test.

34The respondent argues that the words “directly caused an impairment” are an important part of s. 3(1), and that the onus rests with the applicant to demonstrate that he suffered an impairment for the incident to meet the definition of an “accident” according to the Schedule, and thereby meet the causation test.

35The respondent submits that, over the 12 weeks between May 24, 2023 and August 18, 2023, the applicant did not seek any attention from his family physician, a hospital or an urgent care clinic. The respondent argues that it is illogical that the applicant did not seek medical attention given his medical complaints in the OCF-1s and in the EUO, his previous accident benefits claim from 2016, his legal representation shortly following the incident, and his medical history and familiarity with medical professionals.

36The respondent submits that the applicant did not receive any medical attention until August 24, 2023, when he consulted with his family physician, Dr. Shazia Alavi, of Grandview Medical Centre in Cambridge. The respondent submits that the applicant has not provided any evidence that he attempted to see Dr. Alavi earlier than that date.

37On August 29, 2023, based on a referral from Dr. Alavi, the applicant was assessed by Ravneet Singh, physiotherapist at New Horizons Rehabilitation Services Inc., who opined that the applicant exhibited spine injuries, and symptoms indicating a concussion and injury to the brain. Mr. Singh recommended treatment including massage therapy, acupuncture and naturopathy. The respondent argues that a physiotherapist is not qualified to diagnose a concussion or a brain injury, and that Mr. Singh’s medical opinion should be disregarded.

38The respondent submits that, in the EUO, the applicant stated that, after the incident, he suffered from severe throbbing of his head, pulling behind his eyes, daily migraines, light and noise sensitivity, neck and back pain, balance issues, motion sickness, anxiety and memory issues. In the EUO, the applicant stated further that, in the month following the accident, the pain in his head fluctuated between “four to an eight out of ten”.

39The respondent submits that between May 24, 2023 and August 17, 2023, there is not a single mention of any incident or any injuries to Orr, Josslin or the respondent. The respondent submits that the communications with the applicant during that time period only involved disputes over his coverage, his premiums and payment difficulties.

40The respondent submits further that, in the written communications between the applicant and the MTO over the 12-week period, and in the MTO report, there is no reference to any injuries or to any impairments.

41Finally, the respondent submits that the demand letter from Fallis to Canadian Tire, dated July 5, 2023, states that the applicant “was injured in this incident and is still working with his health care providers on ascertaining the scope of the damage done”. The respondent argues that the statement that the applicant was injured should be disregarded, since it contains the false statement that he had consulted health care providers by that time.

42The applicant testified that he did not seek medical attention before August 24, 2023, because of the delayed onset of symptoms, and because he could not ascertain whether they related to his pre-existing osteopenia. As examples of delayed onset of symptoms, the applicant testified that his headaches, neck pain and balance issues arose in June of 2023 and got progressively worse.

43The applicant submits that in his telephone calls to Josslin, Orr and the respondent, in the weeks leading up to August 18, 2023, he spoke about the accident and his impairments. In particular, the applicant submits that he spoke about the claimed accident with the respondent’s receptionists in five separate phone calls on May 29, 2023 and again on two calls on June 6, 2023. The applicant submits that the receptionists did not make notes of his calls, and that they were instructed to not make notes. The applicant argues that the Tribunal should make an adverse inference from the receptionists’ failure to make and retain notes of these calls.

44The applicant submits that there is no mention of the incident or any injuries in the MTO report because the MTO is not empowered to investigate injuries. The applicant submits that the scope of their investigation is limited to the conduct of MTO-certified mechanics who undertake safety certifications.

45The applicant testified that his lawyer at Fallis made an error when she stated that he was working with his health care providers on ascertaining the scope of his injuries. The applicant argues that this does not diminish the fact that he sustained an injury.

46The applicant submits that the post-concussive symptoms he suffered were real. He was referred by Dr. Alavi to Dr. Kathryn Giles, neurologist, who examined the applicant on November 22, 2023. In her report, Dr. Giles indicated that she believed the applicant suffered a concussion from the incident of May 24, 2023. The applicant argues that Dr. Giles’ report confirms that he suffered an injury from the incident and that the incident was therefore an “accident” as defined in s. 3(1).

47I find that the weight of the evidence before me indicates that the incident did not directly cause an impairment for the reasons that follow.

48The extent of the injuries claimed by the applicant in his EUO, such as daily migraines, balance issues, and back/neck pains that were “4 to an 8 out of 10”, are inconsistent with the behaviour of someone who requires medical attention for his pre-existing disability. The applicant’s lack of medical attention, between May 24 and August 18, 2023, despite it being available to him, diminishes the credibility of his oral testimony that he was in great pain that became progressively worse, from June 2023 onwards.

49The applicant directed to the clinical notes and records (“CNRs”) of Dr. Alavi from his visit on August 24, 2023. In the CNRs, she notes that the applicant says he hit his head against the steering wheel in May of 2023. She notes that the applicant requested a referral for magnetic resonance imaging (“MRI”), but she indicates that an MRI will not change management in any way, and she referred him for chiropractic, physiotherapist and massage treatment for back pain. I find that Dr. Alavi’s apparent lack of concern related to a head injury, from that visit, are inconsistent with the applicant’s later claims of head injuries in his EUO. I find that this inconsistency diminishes the credibility of the applicant’s testimony that he suffered head injuries, even with a delayed onset of symptoms.

50I agree with the respondent that the applicant’s physiotherapist, Mr. Singh, is not qualified to diagnose a brain injury or concussion, so I assign little weight to this mention in his CNRs.

51I assign little weight to the applicant’s testimony that he discussed his medical issues in his telephone conversations with staff at Josslin, Orr and the respondent, between May 24 and August 18, 2023. The respondent directed me to several emails between the applicant and the respondent over that period. All the emails concerned his insurance coverage, the premiums and the challenges he was experiencing with making the payments. None of them concerned an accident, on May 24, 2023 or any other date, or any medical issues. I find it difficult to believe that the applicant would have telephone conversations about an accident, and/or an injury with individuals at the insurance brokers and the respondent, and then not discuss an accident and/or an injury in the follow-up emails.

52The applicant did not direct me to any written correspondence between May 24, 2023 and August 18, 2023, between himself and anyone with Josslin, Orr or the respondent, that mentions any injuries suffered in an accident.

53I do not make any adverse inference that the respondent’s receptionists to not make and retain notes of inbound calls from policy holders. At the hearing, I heard testimony from Brooke Lorentz and Bernice Lucas, who were both part of the respondent’s Central Administration Support Team (“CAST”), and whose duties involved fielding inbound calls, among other administrative tasks. They both testified that members of the CAST were trained to direct calls from policy holders to either the claims department (for claims), or to the finance department (for billing or payment issues). They testified that if someone wanted to insure a new vehicle, the standard operating procedure is to refer them to one their broker/partners listed on their website. They both testified that they had no recollection of discussing a claim (or anything else) with the applicant.

54I find Ms. Lorentz’ and Ms. Lucas’ description of their handling of calls from the applicant on May 29, 2023 and June 6, 2023 credible, because it is consistent with testimony provided by Rhonda Ryan, the respondent’s manager of underwriting and by Christine Fizell, the respondent’s claims adjuster. Ms. Ryan testified that she manages a team of about 25 claims adjusters, and she said it would be inappropriate for CAST members to log information about calls with policy holders; that it is the job of the adjusters or finance department to do so. Ms. Fizell testified, as well, that it is the job of a claims adjuster to capture information about a claim, and not the job of a CAST member. For these reasons, I do not accept the applicant’s submissions that he informed one of the respondent’s receptionists of an accident or an injury on May 29, 2023 or June 6, 2023, and I do not make an adverse inference that they did not make or retain notes of phone calls.

55At the hearing, the applicant testified that he engaged Fallis shortly after May 24, 2023, regarding his demand letter to Canadian Tire. Despite having legal representation, who communicated the applicant’s claimed medical issues to Canadian Tire, the applicant did not seek out any medical attention until his first visit with Dr. Alavi on August 24, 2023. I assign little weight to the applicant’s testimony that he was unclear on whether his injuries were due to the incident or due to his pre-existing condition. The applicant had a previous claim with the respondent in 2016, and I find that he should have been aware, in 2023, of the accident benefits claims process and the need for medical corroboration.

56While the applicant directed me to Dr. Giles’ statement that the applicant had a concussion, I note that in the same paragraph of her report, she states “almost certainly however the concussion would have healed within 2 weeks – 3 months and I believe his ongoing difficulties are more related to his chronic pain.” Dr. Giles’ assessment does not concur with the applicant’s testimony that his claimed incident-related symptoms had a delayed onset and became worse over time. Dr. Giles’ assessment indicates to me that, if there were any concussion-like injuries, they would heal within the time frame before the applicant filed his claim, and they would not become progressively worse. For this reason, I assign little weight to the applicant’s testimony that he experienced a delayed onset of incident-related head injuries that became progressively worse.

57I find that the applicant has not provided contemporaneous evidence to establish that he suffered an impairment as a result of the incident on May 24, 2023. Therefore, I find, on a balance of probabilities, that the incident was not an “accident” as defined by the Schedule.

58For this reason, the applicant is barred from proceeding to a hearing on his claim for accident benefits.

Did the applicant notify the respondent of the incident within seven days?

59I find that the applicant failed to notify the respondent of the circumstances giving rise to his claim for benefits no later than the seventh day after the circumstances arose, or as soon as practicable after that day.

60Section 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.

61Section 55(1) provides that the applicant shall not apply to the Tribunal if he has not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted an application for the benefit within the times prescribed by the Schedule.

62However, s. 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 v. Allstate Insurance Company of Canada, 2003 ONFSCDRS 92 (“Horvath”). 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.

63An 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.

64The Tribunal articulates further, in K.H. v. Northbridge General Insurance Company, 2019 CanLII 101613 (ON LAT) (“K.H.”), that s. 32(1) requires an insured person to inform an insurer of an accident within seven days, at which point the insurer will provide the insured with the application forms for accident benefits. In other words, an insured need not necessarily inform the insurer of an injury within seven days; informing the insurer of an accident is sufficient notice.

65The Divisional Court decision in Hussein v. Intact Insurance Company, 2025 ONSC 842 (“Hussein”) directs me further, in that it upholds that the notice requirement under the Schedule is met when the insured advises the insurer of an accident, at which point the insurer should ask probing questions about the accident and whether the insured sustained any injuries, in keeping with the consumer protection purpose of the Schedule.

66As I found previously on the first preliminary issue, the applicant did not mention the incident of May 24, 2023 to anyone at Orr, Josslin or the respondent until August 18, 2023. The respondent submits that, between May 24 and August 18, 2023, all of the applicant’s communications with Orr, Josslin and respondent, by phone, email or in person, involved disputes over the type of insurance coverage, the premium charged, and the method and timing of payment.

67The respondent submits that the applicant’s testimony, that he phoned the respondent and/or his brokers to report an accident before August 18, 2023, is inconsistent with the emails he sent to them over that period. The respondent directed me to the following emails to/from Becky Beuerman, Orr’s broker/agent, and to/from Rhonda Ryan, the respondent’s manager of underwriting, between April and June of 2023:

Date	From	To	Subject(s)
April 11	Applicant	Beuerman	Request for temporary insurance on vehicle
May 26	Beuerman	Applicant	Non-sufficient funds (NSF) for payment of premium
May 26	Applicant	Beuerman	NSF payments, type of coverage, premium
May 29	Applicant	Beuerman	Notification that he would change broker
May 29	Beuerman	Applicant	Confirming cancellation of policy with Orr
June 6	Ryan	Applicant	Offering contact info regarding policy changes
June 6	Applicant	Ryan	Change coverage to only comprehensive, fire and theft
June 9	Beuerman	Applicant	Renewal of policy
June 9	Applicant	Beuerman	Message that Orr is no longer his broker
June 9	Beuerman	Applicant	Policy was amended to comprehensive. Change of brokerage to Josslin will occur at renewal on June 16.

68On May 30, 2023, the applicant went in-person to the respondent’s office to pay $268.73 in cash for his insurance premium. The respondent submits that there were no further emails between the applicant and the respondent between June 9, 2023 and August 18, 2023. The respondent argues that it is inconceivable that the applicant would have mentioned an accident over the phone to anyone at the respondent’s office on May 29 and June 6, or during his in-person visit to pay his premium on May 30, 2023, and not mention an accident in any of the emails over that same period.

69The respondent argues that the applicant has not provided a reasonable explanation for the delay in reporting his claim for benefits, and therefore he has not met the onus as established in Horvath. The respondent argues, further, that the applicant had an extensive accident benefits claim in 2016, so he cannot plead ignorance of the requirements under the Schedule. In addition, the respondent argues that the applicant had ongoing legal representation in pursuing his repayment from Canadian Tire, and therefore he had no reasonable explanation for not advising the respondent of an accident.

70The respondent argues further that there was no obligation to ask questions of the applicant regarding the accident, or any injuries, because the communications with the applicant, before August 18, 2023, do not indicate that an accident, or any incident on May 24, 2023, was ever mentioned. Therefore, the respondent argues, the requirement to ask probing questions, under K.H. or Hussein, does not apply.

71The applicant submits, firstly, that he notified the respondent of an accident in his telephone communications during his phone calls of May 29 and June 6, 2023. He submits that, similar to the argument in the first preliminary issue, I should make an adverse inference from the respondent’s failure to make and retain notes of these phone calls.

72Secondly, the applicant submits that, regardless of the content of the calls of May 29 and June 6, 2023, there were two reasonable explanations for a delay. The explanations are the delayed onset of symptoms and the difficulty in determining whether the injuries were due to the applicant’s pre-existing osteopenia or to the claimed accident. The applicant argues, citing Horvath, that the applicant’s personal characteristics and a “reasonable person” standard apply and that the preliminary issue being raised under s. 32(1) should be dismissed.

73Thirdly, the applicant submits that, based on Hussein, an insurer has a duty to ask probing questions. The applicant submits, for example, that the respondent should have asked questions about any accident when Ms. Ryan became aware that there was an MTO investigation during her phone call with the applicant on June 6, 2023. The applicant argues that the lack of probing questions by the respondent is a failure of their obligations under the Schedule, and therefore the preliminary issue under s. 32(1) should be dismissed for that reason as well.

74Lastly, the applicant argues that there is no prejudice to the respondent in having the merits of his claims for the substantive issues heard. The applicant argues, citing para. 4 of Hussein, that the Schedule is consumer protection legislation that must be interpreted broadly to reduce economic dislocation and hardship for victims of motor vehicle accidents. The applicant argues that an 11-week period (from one week post-accident to August 18, 2023) to report a claim is very short when dealing with an accident, and to require the insured to adhere strictly to the seven-day time frame of s. 32(1) poses potential hardship to the insured and does not balance against the consequences of the failure to comply.

75I find that the applicant’s statement that he informed the respondent of an accident via telephone on May 29, 2023 and June 6, 2023 (or in-person on May 30, 2023) not credible, because it does not concur with his ongoing email correspondence in the days preceding and immediately thereafter. I cannot accept that the applicant would have a telephone conversation with the respondent about an accident, and then not follow up about the accident via his emails in the same week. Therefore, I agree with the respondent that they were not informed of an accident within seven days, per the requirement of s. 32(1) of the Schedule.

76I find that the respondent did not fail to ask probing questions about the incident of May 24, 2023, per its requirements under Hussein, because I find that the applicant did not mention to the respondent there was an accident, or any incident, until August 18, 2023. This present matter is distinguishable from Hussein; in Hussein, the insured informed the insurer of an accident with seven days but the insurer failed to ask the insured about whether he had sustained any injuries. In this case, I have found that the applicant did not tell the respondent that he was involved in an accident before August 18, 2023.

77I disagree with the applicant’s argument that Rhonda Ryan should have asked probing questions about an accident when the applicant made her aware of an MTO investigation. The emails disclosed at the hearing indicate to me that the applicant’s discussion with Ms. Ryan revolved around NSF payments and making arrangement to pay his premium. While the applicant mentioned to Ms. Ryan that there was an MTO investigation, I accept Ms. Ryan’s testimony that an MTO investigation, by itself, would not lead to her to inquire about an accident. The vehicle was over 20 years old and had an odometer reading of over 270,000 km, so I accept Ms. Ryan’s testimony that she had reason to believe the applicant simply had a dispute with Canadian Tire over inspection and maintenance of the vehicle. Absent any mention of an accident from the applicant, she had no basis to ask probing questions about an accident.

78I find that the applicant’s stated reasons for the delay in reporting the accident are not reasonable. I take note of the applicant’s personal health circumstances and the potential ambiguity of determining whether his injuries were due to his pre-existing osteopenia. Regarding the applicant’s claim of a delayed onset of symptoms, I rely on Dr. Giles’ assessment that concussion-like symptoms will improve over time, and not get progressively worse. For these reasons, I find that that the applicant has not met his burden, under Horvath, that the delay in informing the respondent of an accident was “reasonable”.

79I find I am not persuaded by the applicant’s argument that there is no prejudice to the respondent by filing a claim 12 weeks after the incident. In my view, the applicant had several opportunities in his discussions with Josslin, Orr and the respondent to mention an accident. The timelines for filing and handling claims in the Schedule, including the seven-day deadline of s. 32(1), exist so that accident benefits claims can be adjusted and resolved fairly and promptly, based on timely information. After the 12-week period had passed, the respondent would have little ability to assess the applicant’s then-claimed injuries. I find that the prejudice towards the respondent outweighs any detriment to the applicant.

80For the reasons above, I find that the applicant failed to notify the respondent of the circumstances giving rising to his claim for benefits no later than the seventh day after the circumstances arose, or as soon as practicable after that day.

81For this reason, the applicant is barred, pursuant to s. 55(1), from proceeding to a hearing on his claim for accident benefits.

ORDER

82I find that, on a balance of probabilities, the applicant did not suffer an impairment as a result of operating his vehicle, and therefore he was not involved in an “accident” as defined in s. 3(1) of the Schedule.

83I find that, on a balance of probabilities, the applicant failed to notify the respondent of the circumstances giving rising to a claim for benefits no later than the seventh day after the circumstances arose, or as soon as practicable after that day.

84For both of these reasons, the applicant is barred from proceeding to a hearing on his claim for accident benefits.

85Because the applicant is barred from proceeding to a hearing, the applicant’s claim for accident benefits is dismissed.