Citation: Zummach v. Definity Insurance Company, 2026 ONLAT 25-007106/AABS - PI

Licence Appeal Tribunal File Number: 25-007106/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:

Carrie Zummach

Applicant

and

Definity Insurance Company

Respondent

PRELIMINARY ISSUE DECISION AND ORDER

ADJUDICATOR:

Trina Morissette, Vice-Chair

APPEARANCES:

For the Applicant:

Laura Blackshaw, Paralegal Lane Foster, Counsel

For the Respondent:

Owen Cromb, Counsel

HEARD: In writing

OVERVIEW

1Carrie Zummach, the applicant, was involved in an automobile accident on June 6, 2024, and sought benefits from Definity Insurance Company, the respondent, 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 and applied to the Licence Appeal Tribunal (“the Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES IN DISPUTE

2The preliminary issue to be determined is whether the applicant is barred from proceeding with her claim for benefits as she failed to submit her application for benefits (OCF-1) within the time prescribed in the Schedule?

RESULT

3The applicant did not submit her OCF-1 within the timeline of section 32(5) of the Schedule and has not provided a reasonable explanation for her delay.

PROCEDURAL ISSUE – The audio recording dated June 11, 2024, is admitted into evidence

4Following a case conference in this matter held on September 24, 2025, the Tribunal issued a Case Conference Report and Order (“CCRO”) which set out the order and timelines for the parties’ submissions on this preliminary issue hearing. The Tribunal ordered that the applicant file her submissions first, followed by the respondent’s responding submissions, followed by the applicant’s reply submissions.

5In its responding submissions, the respondent produced an audio recording of the initial telephone conversation between the applicant and the respondent’s adjuster on June 11, 2024.

6Through her reply submissions, the applicant seeks relief to exclude this audio recording. The applicant submits that the respondent failed to produce the audio recording within the timelines stipulated in the CCRO causing immense and irreparable prejudice to the applicant. She argues that by withholding the recording until well after the production deadline stipulated in the CCRO, the respondent deprived her of a fair and reasonable opportunity to meaningfully address it. She submits that the recording was produced 51 days after the case conference and seven days after the applicant had already delivered her submissions, which, she argues, is procedurally improper and highly prejudicial.

7Paragraph [8] of the CCRO states: “[b]y no later than 28 calendar days from the case conference, the parties shall disclose any additional documents or things responsive to documents or things that have already been produced that they intend to rely on as evidence at the preliminary issue hearing” [underlined in the original].

8The respondent anticipated the applicant’s request to exclude the audio recording and addressed its production within its responding submissions. The respondent submits that it was only upon receipt of the applicant’s initial submissions on the preliminary issue that it learned the applicant was raising an issue with section 64(2)(e) of the Schedule. More specifically, the applicant alleges she did not give consent to the respondent to communicate with her through her Gmail email address. The respondent submits it received the applicant’s submissions on November 7, 2025, requested a copy of the audio recording, obtained the copy on November 14, 2025, and immediately produced it to the applicant.

9The applicant submits that the respondent knew, or ought to have known, that the audio recording was relevant to the preliminary issue. She points to transcripts of an Examination Under Oath (“EUO”) of the applicant that took place on May 2, 2025. She argues that she had advised the respondent at the EUO that the Gmail address was not her primary email address.

10I note that throughout the written submissions, both parties reference sections of the EUO transcripts. I have reviewed all references and find that, although the applicant mentioned to the respondent that the Gmail account was not her primary email address, there is no clear indication, in my view, that the applicant would raise the issue of email consent pursuant to section 64(2)(e). I therefore find that contrary to the applicant’s assertions, there is no clear evidence that the respondent knew or ought to have known that she would be raising section 64(2)(e).

11The basic principle underlying the duty of procedural fairness is that parties affected by the decision should have the opportunity to present their case fully and fairly, know the case to be met, and have a decision affecting their rights, interests or privileges made using a fair, impartial and open process: see Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 39.

12I agree with the respondent that there is no prejudice to the applicant for the late production of the audio recording. The applicant was a party to this telephone conversation and therefore would have been aware of the discussion. Also, the audio recording was produced 20 days before the applicant was due to file and serve her reply submissions. As evidenced by her submissions, I find that the applicant had ample opportunity to respond to the recording. The applicant relies on Omar v. Aviva Insurance Canada, 2019 CanLII 58164 (ON LAT) that found that an applicant cannot meaningfully respond to evidence when it has been disclosed shortly before the applicant’s submissions are due, and as a result, should be excluded (para. 18) but I do not find that to be the case here. I find the applicant had sufficient time and opportunity to respond, and she did. I also do not accept the applicant’s contention that this was done to create a procedural advantage for the respondent or that it resulted in a hearing by ambush.

13The audio recording is admitted.

ANALYSIS

14Section 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.

15Once 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 the benefits and information on the election relating to the specified benefits, if applicable (section 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.

16Section 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 reiterated in K.H. v. Northbridge, 2019 CanLII 101613 (ON LAT) (“K.H.”). 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; and

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.

17The applicant has a pre-existing medical history of severe epilepsy and has not driven a vehicle in 27 years. On June 6, 2024, the applicant, accompanied by her son, was in the process of entering an Uber when it began to drive away. She submits that her condition requires her to take more time to enter the vehicle and that, as a result of the accident, she sustained an ankle sprain and immediately began experiencing concurrent seizures. She was subsequently hospitalized for 48 hours.

18The following day, on June 7, 2024, the applicant reported the accident to Uber. It would appear that Uber (or the Uber driver) then contacted the respondent and notified it of the accident because on June 11, 2024, the respondent contacted the applicant by telephone. A log note of the same date confirms that the respondent explained the Application for Accident Benefits (OCF-1) to the applicant as well as the Minor Injury Guideline (“MIG”). The respondent also advised that it would be sending her an accident benefits package by email, confirmed the applicant’s email address, and advised that she would be eligible for treatment once she submitted the completed OCF-1. The applicant was told that the adjuster was available to assist her with the completion of the OCF-1 and that the package would be sent following the call by email. A follow-up call was scheduled for the following week.

19On June 21, 2024, the respondent followed-up with the applicant by telephone and inquired whether she required assistance in completing her application. The applicant advised the adjuster that she had not yet looked at any forms and that given her disability, she would speak to her physiotherapist about filling them out.

20On or about October 25, 2024, two treatment plans were submitted to the respondent on behalf of the applicant. In an Explanation of Benefits (EoB) dated October 25, 2024, sent to the applicant’s Gmail account, the respondent advised the applicant that the treatment plans were denied as it had yet to receive her completed OCF-1. No benefit would be payable until a completed OCF-1 is received.

21The applicant submits that she “quickly” completed the OCF-1 with her treatment facility on November 5, 2024. The OCF-1 was submitted to the respondent on December 12, 2024, 184 days after the accident benefits package was sent to her.

The applicant has not provided a reasonable explanation for her delay

22The applicant submits she is a disabled layperson with no knowledge of the Schedule or the process required for claiming accident benefits and explains that her delay was due to the respondent’s failure to comply with sections 32(2)(a) and (c) of the Schedule.

23Regarding section 32(2)(a), the Schedule states that an insurer must promptly provide the insured with the appropriate application forms. The applicant submits that she never received the OCF-1 form as it was sent to her rarely used Gmail address. She also raises section 64(2)(e) and argues she never explicitly consented to receiving the documents by way of email. She relies on an unpublished decision of this Tribunal in Campana v. Definity Insurance Company, 2025 ONLAT 24-014391/AABS which found that consent to email delivery is required. She points to her completed OCF-1 form where she listed the appropriate email account to contact her (the Hotmail account). She also refers to her sworn testimony provided at an EUO on May 2, 2025. She argues she never received a copy of the OCF-1 until her treatment facility provided one and she would not have consented to receiving documents sent exclusively to her Gmail address.

24Regarding section 32(2)(c) where the Schedule imposes an obligation on the respondent to promptly provide an insured with information to assist the person in applying for benefits, the applicant submits that the respondent only notified her of the 30-day timeline to submit her OCF-1 by sending an email to her rarely monitored Gmail account, and it failed to notify her of both the 30-day timeline and the consequences for failing to file her application on time during the follow-up call on June 21, 2024. The applicant argues that the respondent’s lack of information is particularly relevant given that she suffers from neurological, cognitive, and memory deficits due to her antiepileptic medications.

25The applicant submits that this explanation for her delay is reasonable, credible, worthy of belief and would satisfy both the objective “reasonable person” standard and the subjective aspect of the test set out in Horvath.

26I disagree with the applicant and find that her explanation for the delay is neither credible nor worthy of belief. Based on the adjuster’s log notes (described above) and the sections of the applicant’s EUO transcripts the parties led me to support their arguments, the applicant’s explanation is not supported by the evidence. I am particularly persuaded by the audio recording of the initial conversation between the applicant and the respondent’s adjuster that occurred on July 11, 2024. The relevant portions of the conversation went as follows:

Adjuster: “So Carrie, what’s going to happen from here, I am going to be sending you an application to the email that’s provided in our file. I just want to confirm, your email in our file is [redacted for privacy]@gmail.com?”

Applicant: “Yes.”

Adjuster: “I’m going to be sending you the application package to apply for accident benefits through our insurance company. We’re the insurance company that insures the Uber vehicle that you were a passenger in. So, if I send you that application, we just require you to fill out the OCF-1, that’s the application to apply for accident benefits, we require you fill that out within 30 days, and once you send it back to me, then I can go ahead and give you more information regarding your benefit entitlement.”

[The adjuster explains the MIG and advises this could cover her medication for epilepsy. The adjuster inquires of any treatment facility the applicant attends for treatment. The applicant states she attends one facility for physiotherapy and chiropractic services and also uses mobility aids.]

Adjuster: “Once we do receive that application, that OCF-1 is completed, you would be eligible for $3,500.00 to receive treatment. They can also assist you with the forms I’m about to send you. So, if you have any questions regarding any forms, you can feel free to give me a call. [The adjuster advises that his contact information will be provided in the email, and the treatment facility can also assist and submit the application on her behalf.]

Applicant: “Ok.”

Adjuster: “Did you have any other questions for me?”

Applicant: “No.”

[The parties schedule a follow-up call for the following week.]

Adjuster: “Ok, I’m going to be going ahead and sending you that application package right now to your Gmail and yes, we’ll just touch base next week, ok Carrie?”

Applicant: “Ok, and I can just fill that out online?”

Adjuster: “Yes, they’re PDF forms; you can just type it up if you like.”

Applicant: “Ok, thank you.”

27Based on the audio recording, I find the applicant explicitly consented to receiving communications and information by way of email pursuant to section 64(2)(e) of the Schedule. The applicant also confirmed her Gmail address and consented to the respondent providing the information to her Gmail account. The log notes confirm that the respondent sent the accident benefits package by email following the telephone call.

28I am also not persuaded that the respondent failed to provide the applicant with information to assist her in completing her application. As evidenced by the audio recording, the respondent’s adjuster explained the requirement of submitting her application within 30-days and explained that the applicant could be entitled to the $3,500.00 of the MIG to assist her with her medication and treatment. He offered to assist her with any questions she might have in completing her application and advised that her treatment facility could assist her as well. The adjuster scheduled a follow-up call the following week to provide further assistance.

29At no time did the applicant allege the package was not received. In her EUO testimony, the applicant stated that she did not see the email the respondent sent to her Gmail account until “shortly before” attending the scheduled EUO in May 2025. This is not a reasonable explanation for alleging the respondent never provided her with the information. The applicant knew the package would be sent to her Gmail account following the call. It is not reasonable for the applicant to allege the package and information was not provided when she chose not to review it upon receipt.

30I am also not persuaded that she did not see the email until “shortly before” the EUO. The applicant testified at the EUO that she checks her Gmail account one or two times a week. There were approximately 46 weeks between the initial call on June 11, 2024 and her EUO on May 2, 2025. In addition, upon receipt of the respondent’s denial of the two treatment plans submitted in October 2024 due to her failure to provide a completed OCF-1, she states she “quickly” completed the OCF-1 with her treatment facility on November 5, 2024 and submitted it on December 12, 2024. This suggests that the applicant was monitoring her Gmail account. I therefore disagree with the applicant that the respondent did not discharge its obligations under section 32(2).

31The applicant also submits that the respondent’s lack of information is particularly relevant given that she suffers from neurological, cognitive, and memory deficits due to her antiepileptic medications, but the applicant did not lead me to any medical documentation to support this argument. In my view, it is not sufficient to allege these impairments without medical documentation to support it. Submissions are not evidence. Without medical documentation to support that the applicant was unable to submit her application within the 30-day timeline, I am not persuaded by this argument.

32An assessment of reasonableness includes a balancing of prejudice to the respondent, hardship to the applicant, and whether it is equitable to relieve against the consequences of the failure to comply with the time limits at section 32. The applicant submits that the delay in submitting the completed OCF-1 has not interfered with the respondent’s ability to investigate the claim and that given the consumer protection mandate of the Schedule, the hardship to the applicant if she is barred from proceeding, outweighs any prejudice to the respondent. The respondent submits that during the extensive delay period (184 days), the applicant was incurring treatment expenses which unfairly created retroactive exposure.

33I agree that the Schedule is consumer protection legislation, see: Davis v. Aviva General Insurance Co., 224 ONSC 3054 (“Davis”) and I acknowledge the direction provided by the Court in Davis. However, I am persuaded by the reasons in Horvath and adopt those guiding principles for the purposes of determining whether the applicant has provided a reasonable explanation for her delay in notifying the respondent of her intention to claim accident benefits.

34Taking into account the principles of Horvath, I find that the applicant’s explanation for her delay in submitting a completed OCF-1 is not credible nor worthy of belief. Ignorance of the law is not sufficient, and she has not led me to any medical documentation to substantiate that she has physical or mental impairments that confined her ability to do so. The delay in this matter is significant (184 days) and has caused prejudice to the respondent in fulfilling its obligations to investigate and assess her claim. In these circumstances, I do not find it would be equitable to relieve against the consequences of the applicant’s failure to comply with the time limit.

35For these reasons, I find that the applicant has not met her onus to establish a reasonable explanation for her delay.

Section 55

36Pursuant to section 55(1)1 of the Schedule, an insured person shall not apply to the Tribunal under section 280(2) of the Insurance Act if the insured person has not notified the insurer of the circumstances giving rise to the claim or has not submitted an application for the benefit within the time limits prescribed in section 32.

37As outlined above, I find that the applicant did not submit an application for benefits within the timelines prescribed by the Schedule and he has not provided a reasonable explanation for the delay. Accordingly, I find that the applicant is statute-barred from proceeding with her application before the Tribunal.

ORDER

38For the above reasons, I find:

i. The applicant did not submit her OCF-1 within the timeline of section 32(5) of the Schedule and has not provided a reasonable explanation for her delay.

ii. The applicant is barred by section 55(1) from proceeding with her application before the Tribunal. The Tribunal shall vacate any date that has been scheduled for the substantive issues hearing.

iii. The application is dismissed.