Citation: Shmais v. Definity Insurance Company, 2026 ONLAT 25-008409/AABS

Licence Appeal Tribunal File Number: 25-008409/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:

Shaheed Al Shmais

Applicant

and

Definity Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR: Nadia Mauro

APPEARANCES:

For the Applicant: Celina DeVuono, Counsel

For the Respondent: Mirsa Duka, Counsel

HEARD: By way of written submissions

OVERVIEW

1Shaheed Al Shmais, the applicant, was involved in an automobile accident on May 17, 2024, 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 ISSUES IN DISPUTE

2The preliminary issue to be decided is:

1. 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 is barred from proceeding with this application.

ANALYSIS

Background

4On May 17, 2024, at approximately 12:20pm, the applicant was involved in a collision when a vehicle turned left into his path causing significant front-end damage. At approximately 2:40pm, the applicant called and reported property damage to his insurer, the respondent. At the outset of the telephone conversation with a representative of the applicant’s insurer (the “agent”), the applicant advised that he did not have any injuries.

5On December 18, 2024, the applicant retained counsel to assist him with his accident-benefits claim. The applicant’s representative had been previously retained for an accident benefits claim with the respondent for a prior motor vehicle accident that occurred on September 16, 2021 (“the first accident”). At the time the submissions were filed with the Tribunal, the accident benefits claim for the first accident remained open.

6On January 10, 2025, the applicant advised the respondent that he was injured as a result of the accident and intended to claim accident benefits.

7On January 15, 2025, the applicant spoke with an accident benefits adjuster, and the adjuster provided the accident benefits application package via email correspondence shortly thereafter.

8On January 17, 2025, the applicant’s representative faxed a letter dated January 16, 2025, enclosing the accident benefits package, inclusive of the OCF-1, to the respondent.

9On May 21, 2025, the respondent advised the applicant that his accident benefits claim was being denied pursuant to non-compliance with s. 32 of the Schedule. The respondent requested that the applicant provide a reasonable explanation for the late reporting, and other documents pursuant to s. 33 of the Schedule.

10On June 4, 2025, the applicant’s representative sent letter correspondence to the respondent providing various explanations for the delay.

11On June 13, 2025, the respondent sent letter correspondence maintaining its denial of accident benefits pursuant to s. 32 of the Schedule.

The Law

12Section 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.

13Once 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 benefits available, information to assist the person in applying for benefits and information on the election relating to income replacement benefits, non-earner benefits and caregiver benefits, if applicable. Pursuant to s. 32(5) of the Schedule, the applicant must then submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms.

14Section 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.

15The interpretation of “reasonable explanation” is guided by Horvath v. Allstate Company of Canada, 2003 ONFSCDRS 92 (“Horvath”) and was more recently reiterated in K.H. v. Northbridge General Insurance Company, 2019 CanLII 101613 (ON LAT) (“K.H.”). The guiding principles are summarized as follows:

1. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.
2. The onus is on the insured person to establish a “reasonable explanation”.
3. Ignorance of the law alone is not a “reasonable explanation”.
4. 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.
5. The lack of prejudice to the insurer does not make an explanation automatically reasonable.
6. 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.

16Additionally, pursuant to Hussein v. Intact Insurance Company, 2025 ONSC 842 (“Hussein”), an interpretation of s. 32(1) must recognize the reality that consumers who have motor vehicle accidents are in a vulnerable position, particularly in the period immediately following the accident. Hussein provides that the insurer has a positive obligation to inquire and assist an insured person with their application for accident benefits and affirms that insurers cannot simply rely on the insured person’s inaction to determine that no benefits will be claimed.

Did the applicant comply with the notice requirements in s. 32(1)?

17The respondent submits that the applicant did not advise that he intended to seek accident benefits for the accident or that he sustained injuries until January 10, 2025, 7 months and 24 days after the accident occurred. The respondent submits that pursuant to Hussein, insurers who ask the applicant if they are injured during the first notice of loss call have met their obligation to the insured if the insured confirm that they do not have injuries. The respondent submits that in the present case, the applicant was asked whether he sustained injuries and he confirmed that he did not sustain any injury.

18The applicant also relies on Hussein, although he submits that the agent during the accident reporting call should have made proper and clear inquiries regarding his injuries, should have provided clear and comprehensive information on available benefits and should have sent the applicant the accident benefits package. The applicant submits that he notified the respondent of the accident a few hours after it occurred, and this is sufficient to satisfy s. 32(1) of the Schedule. Moreover, the applicant argues that his answers to the agent’s questions were ambiguous, and his first language is Arabic. The applicant submits that instead of asking further questions to clarify the ambiguous answers, the agent “simply assumes” the applicant is not injured and changed the subject to property damage. The applicant also relies on the Tribunal decisions in Ilangeswaran v. Sonnet Insurance Company, 2021 CanLII 55200 (ON LAT) (“Ilangeswaran”), and Simmers v. Wawanesa Mutual Insurance Company, 2025 CanLII 28489 (ON LAT) (“Simmers”).

19I have reviewed the transcript of the accident reporting call on May 17, 2024. Within the first 37 seconds of the phone call, the following was asked and answered:

Agent: Good afternoon, I’m Andy, with Economical new claims. How can I help you today?

Applicant: Hi, how are you?

Agent: Good. Yourself?

Applicant: Good, thank you. I just had a car accident.

Agent: Okay. I’m so sorry to hear that. And are you okay? Any injuries at all to yourself?

Applicant: Yes.

Agent: No injuries?

Applicant: No, no.

Agent: No? Perfect, glad to hear that. And you mentioned this accident. Did this… when did this happen? Just today, or…

Applicant: Yes, a few hours ago.

Agent: A few hours ago? Okay, no problem here. And did you happen to make a report with the police [inaudible] after?

Applicant: Yes.

20I disagree with the applicant that the answers to the agent’s questions were ambiguous. The applicant clearly replied ‘no’ when asked specifically if he had sustained any injuries. The agent further clarifies, “No? Perfect, glad to hear that.” The applicant does not report any injuries throughout the duration of the phone call.

21I find that the applicant did not notify the respondent of his injuries or intention to pursue an accident benefits claim within seven days post-accident pursuant to s. 32(1) of the Schedule. I find that the agent during the initial phone call made proper and clear inquiries to ascertain whether the applicant had sustained injuries, and the applicant reported none. This was sufficient to discharge the insurer’s obligation in accordance with Hussein.

22Furthermore, I am not bound by Tribunal decisions, and I distinguish Ilangeswaran and Simmers from the present case. While the Tribunal held in Ilangeswaran that the applicant had provided notice of her accident benefits claim despite the call being disconnected prior to her reporting any injuries, the applicant in the present case was specifically asked about his injuries and he replied none. In Simmers, the Tribunal held that the conversation between the parties (mother, son, and insurer) was confusing and to discharge its obligation, the insurer would have had to make an additional inquiry into the applicant’s status. In the present case, the applicant spoke directly to the respondent and clearly stated he did not sustain an injury.

23With respect to the applicant’s proficiency in English, I have reviewed the transcript of the phone call, and during the hour and five-minute duration, the applicant displays an ability to answer the questions and articulate his preferences (for example, which repair shop he would like to avoid). Moreover, while the applicant points me to the need for an interpreter at the s. 44 insurer examinations and to the within proceedings, the applicant’s evidence supports that he is able to communicate in English. The applicant noted “English” as languages used on the OCF-1. The applicant has not directed me to evidence to suggest that the applicant uses an interpreter when reporting to his family practitioner, Dr. Ammar Alfiya, nor his physiotherapist, Mr. Christopher Dion.

Does the applicant have a reasonable explanation for the delay?

24The applicant further submits that he was not aware until retaining counsel for the subject accident that he could or should open a second accident benefits claim. The applicant argues that this is supported by the fact that his physiotherapist, Mr. Dion, told him he was not required to open another accident benefits claim for the subject accident.

25I agree with the applicant that having a prior motor vehicle accident and accident benefits claim does not mean the applicant has knowledge of his potential entitlement for subsequent claims. However, the applicant’s own submissions state that “Mr. Dion told him he was not required to open another AB claim for the 2nd MVA” (my emphasis added). In my view, the applicant’s alleged discussion with his physiotherapist is supportive of his knowledge of his potential entitlement for a second claim. As such, I find that it is more probable than not that the applicant had knowledge of his potential second accident benefits claim prior to retaining counsel in December 2024. Conversely, the applicant has also not directed me to corroborating evidence that would support Mr. Dion gave this advice. While the applicant points me to the OCF-18s submitted by Mr. Dion that state the accident “re-exacerbated some symptoms in neck” and the “second MVA May 7, 2024” is a barrier to recovery, I do not find that this corroborates the “advice” to not pursue a second accident benefits claim. It simply identifies the fact that a subsequent accident occurred and could affect his treatment for the first accident. Interpreted either way, I find that the applicant argument that he was unaware of his entitlement to a second accident benefits claim is not persuasive.

26What is more, despite the applicant retaining counsel on December 18, 2024, presumably after counsel was notified of the second accident, it is unclear why the applicant took an additional 23 days to contact the insurer to initiate an accident benefits claim. While the applicant submits he made attempts to contact the respondent during this time, the applicant has not pointed me to evidence that corroborates same.

27Given the foregoing, I do not find that the applicant’s explanation is credible or worthy of belief, therefore, there is no need to assess the reasonableness of the explanation. In other words, the first principle of K.H. is a threshold that must be met in order to engage the other principles. It is incumbent upon the applicant to provide evidence that supports his position. In my view, he has not.

28Pursuant to s. 55(1)1 of the Schedule, an insured person may not apply to the Tribunal if they have not notified the insurer of the circumstances giving rise to the benefit or has not submitted an application for the benefits within the times set out in the Schedule.

CONCLUSION AND ORDER

29The applicant failed to notify the respondent of his intention to apply for benefits 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.

30The applicant is barred from proceeding with his application pursuant to s. 55(1) of the Schedule. The Tribunal shall vacate any date that has been scheduled for the substantive issues hearing.

31The application is dismissed.