Licence Appeal Tribunal File Number: 24-014717/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:
Summer Mendowegan
Applicant
and
Definity Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR: Tami Cogan
APPEARANCES:
For the Applicant: Daniel Lester, Counsel
For the Respondent: Nicholas Maida, Counsel
HEARD: By way of written submissions
OVERVIEW
1Summer Mendowegan, the applicant, was involved in an automobile accident on July 29, 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 with their claim for benefits as they failed to submit the application for benefits (OCF-1) within the time prescribed by the Schedule?
RESULT
3The applicant is statute-barred from proceeding with her application.
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, 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 application 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, 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.
Background and parties’ positions
7The parties agree the applicant was involved in an accident on July 29, 2023. She reported the accident to the respondent for the first time, on September 20, 2024, through an OCF-1 submitted by her counsel. On September 26, 2024, the respondent sent a letter to the applicant requesting a reasonable explanation for the delay in reporting the claim for accident benefits.
8The respondent submits that the applicant should be barred from proceeding with her claim pursuant to s. 55 of the Schedule, because she failed to provide a credible or belief worthy explanation for the delay in reporting the accident. Further, the respondent submits it has been prejudiced by the delay because between the time of the accident and when the accident was reported, the applicant has suffered additional injuries and obtained treatment, thereby depriving the respondent of the ability to contemporaneously investigate or assess the applicant’s accident-related injuries.
9The applicant submits that she was a pedestrian who was struck by an off-road dirt bike with an uninsured driver, and as an unsophisticated accident victim in Northwestern Ontario, she was not aware of the availability of accident benefits through her father’s insurance policy. After the accident, she was focused on the injuries she sustained in the accident, which had an impact on her ability to function physically and cognitively. Further, that as a resident in rural Northwestern Ontario she has limited access to internet services. The applicant submits that the prejudice she will experience is due to her being an unsophisticated, rural, indigenous, and vulnerable young women.
Late-filed OCF-1 and Reasonable Explanation for the Delay
10I find that the applicant has not established a reasonable explanation for the 14-month delay in submitting an OCF-1.
11The applicant declared that neither Economical nor Definity Insurance contacted her after the accident or provided her with an application for accident benefits. However, I have not been directed to evidence that supports that the insurance companies were aware of the accident prior to her filing an OCF-1 on September 20, 2024. The applicant has not directed me to any statutory authority or binding caselaw establishing that it is the responsibility of the insurer to seek out accident victims. Rather, it is well-settled that the insurer’s responsibilities are only triggered once the applicant informs an insurer of an accident. In the case at hand, that responsibility began on September 20, 2024.
12The applicant does not dispute that the first time she notified the respondent of the accident was on September 20, 2024, when her counsel sent in her OCF-1. However, she argues that she has a reasonable explanation for the delay. I was directed to the applicant’s Statutory Declaration dated October 8, 2024, in which she declared that after the accident she was focused on her injuries and recovery, which included several hospitalizations and surgeries. She also cited limited access to email and internet because she lives in Northwestern Ontario. The applicant also declared that she was unaware that she could apply for accident benefits until a relative told her she should speak to a lawyer.
13I have considered the applicant’s explanation that she is an unsophisticated party and given her personal characteristics, she would not have known she was entitled to benefits under her father’s insurance. She had not completed high school, she was twenty-five years old and a pedestrian at the time of the accident, she did not have insurance of her own, and was dependant on her father. Further, she was hospitalized for two and a half months dealing with severe injuries. I agree with the applicant that these characteristics categorize her as an unsophisticated party. However, this is only one consideration in determining if her explanation for delay is reasonable.
14In the applicant’s examination under oath (EUO) she testified that her employment in the summer of 2023 was online, and she had access to both internet and a cell phone. While in the hospital she accessed the internet through the hospital’s WiFi, and after she was discharged, she continued to have access to the internet and her cellphone. I find that the applicant’s explanation regarding not having access to the internet because she lives in Northern Ontario is not supported by the applicant’s EUO.
15When considering the reasonableness of the applicant’s argument that she was unaware that she could claim accident benefits, I was directed to evidence that the applicant had been guided by her aunt in January 2024, and told to contact a lawyer. The applicant’s EUO confirmed that she did not contact a lawyer for more than eight months after that, following which her OCF-1 was submitted. I find that the applicant’s ignorance of the law becomes less reasonable when she fails to take reasonable action to educate herself by availing the services of a legal professional in a reasonable timeframe.
16The applicant submits that her injuries caused an impact on her ability to function physically and cognitively. However, I have not been directed to evidence that supports she sustained cognitive limitations, or that her physical limitations prevented her from submitting her OCF-1.
17The applicant submits that her application for accident benefits was late because she was focused on her severe accident-related injuries and treatment. I was directed to the applicant’s operative reports, which detail the applicant undergoing six surgeries to her left leg between the date of the accident and September 14, 2023. There can be little doubt that the applicant was dealing with a serious injury to her left leg. On October 14, 2023, the applicant had to return to the hospital for wound debriding and a skin graft. During her EUO she stated she returned to work (remotely) in October 2023. She also stated that she received in-home physiotherapy starting in October 2023 and ending in December 2023. I note the physiotherapy records are not in evidence. I find the evidence supports that the applicant was focused on her injuries and recovery for several months after the accident, and this was reasonable. However, the OCF-1 was not submitted for 14-months.
18When considering the reasonableness of the applicant’s explanation, I have also considered whether the excuse continued to be reasonable for the entire period of delay. I have not been directed to evidence that supports the applicant continued treatment into 2024. The next medical record or reference to medical treatment I was directed to was from the GDH on April 4, 2024, and it was not accident related. I find that the evidence to which I have been directed does not support that the delay for the entire 14 months was caused by her focus on her injuries and treatment.
19I find the applicant’s delay in notifying the respondent has caused prejudice to the respondent. The evidence I was directed to supports that the applicant sustained injuries unrelated to the accident, between the time of the accident and the time she reported the accident to the respondent, as follows:
i. On April 4, 2024, she attended the Geraldton District Hospital (GDH) reporting left leg pain after she slipped on ice a week before.
ii. On July 26, 2024, the applicant attended the GDH reporting lower back pain radiating down her left leg, the pain having started one week prior after a night of drinking.
iii. An MRI referral letter of Dr. Tiffany Desruisseaux, dated August 3, 2024, documents the applicant was at GDH on July 28, 2024, following an assault. The applicant was reporting new symptoms which required an urgent MRI. The letter also documented the applicant began using a 4-wheeled walker in March/April 2024.
iv. On August 30, 2024, the applicant attended GDH after riding an electric bike and “wiping out”, landing on her right hip. This record also indicates the applicant had spinal surgery at the beginning of August 2024.
v. The applicant had spinal surgery for acute cauda equina syndrome on September 19, 2024.
20Had the applicant reported her accident to the respondent before these additional incidents, the respondent would have had an opportunity to contemporaneously assess the extent of the applicant’s accident-related injuries.
21In considering if the delay has caused prejudice to the respondent, I must consider if the prejudice can be overcome. I find that the delay has caused prejudice that cannot be overcome strictly with medical records because the medical records were created strictly for the purposes of treatment, without consideration of causation.
22I find that the applicant’s delay in notifying the respondent and submitting her OCF-1 has resulted in prejudice to the respondent. I agree with the respondent that given the approximate 14-month delay; it has been deprived of its ability to contemporaneously assess the applicant.
23Finally, I must consider whether the hardship to the applicant outweighs the prejudice to the respondent. The applicant submits that she requires attendant care and incontinence supplies, and that depriving her of benefits, deprives her of life-altering and potentially life saving treatment and care. I have not been directed to evidence in support of the applicant’s need for attendant care or ongoing treatment related to her accident-related injuries. Due to a lack of medical evidence, I am not persuaded that the applicant’s potential hardship outweighs the prejudice to the respondent.
24I find the applicant has not established on a balance of probabilities that she has a reasonable explanation for the 14-month delay in submitting an OCF-1.
CONCLUSION AND ORDER
25The applicant is barred from proceeding with her application pursuant to s. 55(1) as she failed to report the accident or submit her OCF-1 within the timeframes set out in the Schedule. She has not provided a reasonable explanation for the delay.
26The application is dismissed.
Released: August 5, 2025
Tami Cogan Adjudicator