Licence Appeal Tribunal File Number: 25-009006/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:
Tyler Leatham
Applicant
and
Definity Insurance Company
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR:
Trina Morissette, Vice-Chair
APPEARANCES:
For the Applicant:
Michael Warfe, Counsel
For the Respondent:
Jordan Hochman, Counsel
HEARD:
In writing
OVERVIEW
1Tyler Leatham, the applicant, was involved in an automobile accident on December 24, 2022, 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 ISSUE IN DISPUTE
2The preliminary issue to be determined is:
i. Is the applicant barred from proceeding with his claim as he failed to submit the application for benefits (OCF-1) within the time prescribed in the Schedule?
3In its submissions, the respondent also requests a finding that the applicant is not entitled to any of the treatment plans in dispute due to his failure to comply with section 33 information requests.
4Not only is this not a proper preliminary issue as any entitlement to the benefits in dispute will be determined on the merits at the substantive issues hearing, there is also no information that this issue was raised at the case conference held on October 14, 2025, or prior to the filing of the respondent’s submissions. Pursuant to Rule 20.4 of the Licence Appeal Tribunal Rules, 2023 (“the Rules”), any preliminary issue a party intends to raise must be included in their case conference summary.
5Because the issue was not raised as a preliminary issue pursuant to Rule 20.4, and because the applicant was not provided with proper notice and therefore was not provided an appropriate time to consider and respond to the issue, and also because, in my view, this is not a proper preliminary issue as it requests a determination as to entitlement on the merits, it will not be considered within this preliminary issue decision.
RESULT
6The applicant is not barred from proceeding with his application. The application shall proceed to a hearing on the substantive issues as previously scheduled.
ANALYSIS
7Section 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.
8Once 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.
9Section 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 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.
10Based on the parties’ submissions and the evidence submitted in this matter, the facts are as follows.
11On December 24, 2022, the applicant was travelling to see his family for a Christmas eve dinner. During his trip, he pulled his vehicle onto the shoulder of the highway to assist another motorist whose vehicle had driven off into the ditch. The applicant exited his vehicle and was struck by another vehicle. Shortly thereafter, several other vehicles collided on the highway.
12The applicant reported being thrown through the air and into the ditch. Emergency personnel arrived and the applicant was taken to hospital by ambulance. He felt pain in his left hip and was taken for x-rays of his pelvis. At the time, the injury did not seem serious; he was told there may be a hairline fracture to his pelvis but that it would heal. The applicant was assured it was safe to go home and to take Tylenol and Advil as needed.
13The respondent submits that the applicant was required to submit a completed OCF-1 within seven days of the accident, but he only submitted his application one year and two months later, on March 5, 2024. The respondent argues that the applicant has not provided a reasonable explanation for the delay and that, in a case such as this, where the applicant has shown blatant and wanton disregard for the rules that govern the procedures underlying an application for accident benefits, the applicant must lose the right to have his application decided on the merits.
14I do not accept the respondent’s interpretation of the provisions of the Schedule. As noted above, section 32(1) of the Schedule requires the applicant to notify the respondent of the accident within seven days, or as soon practicable after that day. The respondent is incorrect that the applicant must submit its completed OCF-1 within seven days. Pursuant to section 32(5), the applicant had 30 days to submit his completed OCF-1 once the respondent provided him with the accident benefits package as per section 32(2).
15The applicant submits that he immediately contacted the respondent to notify it of the accident and his intention in doing so was to access all benefits available to him under his policy. He argues that there is no delayed application for benefits until an insurer has complied with its obligations at section 32(2) and there is unequivocal, uncontradicted evidence that the insurer failed to inform him of his right to claim benefits after the accident or to assist him in any way with his application. The applicant relies on Hussein v. Intact Insurance Company, 2025 ONSC 842 (“Hussein”) where, he argues, the Court found it was sufficient that the claimant notify their insurer of a property damage claim to meet the requirements of section 32(1), which then triggers the insurer’s obligations under subsection 32(2). He also relies on Tomec v. Economical Mutual Insurance Co., 2019 ONCA 882, 148 O.R. (3) 438 (“Tomec”) which discusses the consumer protection mandate of the legislation.
16The respondent argues that Hussein should be distinguished from the current set of facts or that, in the alternative, the Tribunal should find that it complied with its obligation as set out in Hussein. The respondent points to the log notes and contends that despite the applicant advising the respondent’s adjuster he was sore following the accident, the applicant went on to say that he was told at the hospital that he was “okay” and did not make any claims of injury or assert that he was told he was injured.
17The respondent relies on Rana v. Economical Insurance Company, 2025 CanLII 102185 (ON LAT) and submits that the applicant’s statement that he was told he was “okay” has the same impact as the applicant reporting he sustained no injuries. Based on the applicant’s statement, the respondent submits that its duty was discharged; it was incumbent on the applicant to advise it that he had noticed injuries potentially related to the accident at which time the respondent could have provided the applicant with the accident benefits package. The respondent had no way of finding out this information until the OCF-1 was submitted beyond the deadline.
18I disagree with the respondent. The Court in Hussein found that an interpretation of section 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.
19The adjusters’ log notes confirm that the applicant contacted the respondent on December 30, 2022 – six days later – to notify it of the accident. The notes include references to a “multi-vehicle collision” and that the applicant “left in an ambulance, he is sore, went to hospital in Fergus to get checked out, they advised he was okay.” The remainder of the notes deal with the applicant’s property damage claim which concluded the applicant’s vehicle was a total loss.
20Although the log notes do not include a description of the applicant being struck by a vehicle after exiting his vehicle, the applicant filed an affidavit sworn on October 28, 2025, in which he attests he shared this information in his first telephone conversation with the respondent’s adjuster. The respondent does not dispute this. There is no information that the adjuster further inquired into what was meant by being “okay” after being struck by a vehicle, which I find would have been a reasonable line of inquiry in the circumstances.
21In my view, the log notes confirm that the applicant satisfied section 32(1) of the Schedule when he notified the respondent of the accident six days later. I also find that the information provided by the applicant to the adjuster was sufficient to trigger the respondent’s positive obligation pursuant to section 32(2) and Hussein for the respondent to further inquire into the results of the applicant’s complaints and visit to the hospital, and to provide the applicant with an accident benefits package and information that could assist him in applying for benefits. I find this particularly important as it is common knowledge that injuries may arise in the days or weeks following an accident.
22Pursuant to Hussein, I find the respondent should have acted on the assumption that the insured, who reported being sore after being struck by a vehicle, and who was transported to hospital by ambulance, might want to apply for accident benefits in the days or weeks following the accident. I am also not persuaded by the respondent’s reliance on Rana where the evidence supported a finding that the insurer inquired as to whether the applicant suffered injuries, and he reported “none”. First, I am not bound by Rana, and second, I do not agree that the scenario is similar as here, the applicant reported he was sore after being struck by a vehicle.
23I find the respondent’s reliance on the applicant’s statement about being “told he was okay” is not in line with the consumer protection mandate of the Schedule. The goal of the Schedule is to reduce the economic dislocation and hardship of motor vehicle accident victims and, as such, assumes an importance which is both pressing and substantial: see Hussein, para. 24. An accident benefits package explaining the claimant’s rights and the process to follow to claim such benefits, accompanied by the necessary forms, should have been forwarded to the applicant in light of the facts relayed to the respondent’s adjuster. This, in my view, would have satisfied the consumer protection purpose of the Schedule.
24The applicant acknowledges he submitted his OCF-1 on March 5, 2024. He relies on the respondent’s failure to inform him of his entitlement to accident benefits and also an explanation his counsel provided to the respondent on September 19, 2024 where it is stated:
[The applicant] doesn’t have a lot of experience with automobile insurance, had not been injured in an accident before, and was only 23 years old when this happened. His highest level of education is high school and trade school.
[The applicant] was a pedestrian when he was struck by [the third party] truck. He did not consider that auto insurance could cover his injuries given that he was not in his vehicle when it happened.
[The applicant] did not immediately appreciate the severity of his injuries. He thought he would just get better on his own, but over time his hip got worse. This led him to see his family doctor about the hip pain in the fall of 2023, who then referred him to a sports medicine physician, who he saw in February 2024. This physician told [the applicant] that there were issues with the hip joint, and that various investigations and treatments, including imaging, physiotherapy, injections and possibly surgery may be required. It was only after this happened that he began asking people for advice, which eventually led him to a lawyer.
25Taking into account the principles of K.H., and the Court’s guidance in Hussein, I find that the section 34 factors have been met. The applicant’s explanation is credible and reasonable. As the respondent did not provide the applicant with the accident benefits package, I am not persuaded that the 30-day deadline to submit a completed OCF-1 was triggered. In my view, the balance of the matter favours the applicant to proceed with his application as he will still have the substantive burden of proving his entitlement to the benefits he claims.
26Accordingly, I find that the applicant is not disentitled from receiving benefits and may proceed with his application.
ORDER
27The applicant is not barred from proceeding with his application. The application shall proceed to a hearing on the substantive issues as previously scheduled.
Released: February 24, 2026
Trina Morissette
Vice-Chair