Ogorkis v. Intact Insurance Company, 2026 CanLII 15100

Licence Appeal Tribunal

Citation: Ogorkis v. Intact Insurance Company, 2026 ONLAT 25-008061/AABS - PI Licence Appeal Tribunal File Number: 25-008061/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:

Zdzislaw Ogorkis Applicant

and

Intact Insurance Company Respondent

PRELIMINARY ISSUE DECISION AND ORDER

ADJUDICATOR: Trina Morissette, Vice-Chair

APPEARANCES:

For the Applicant: Karan Singh, Counsel

For the Respondent: Shivani Mehta, Counsel

HEARD: In writing

OVERVIEW

1Zdzislaw Ogorkis, the applicant, was involved in an automobile accident on December 15, 2022, and sought benefits from Intact 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 application 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, pursuant to section 32(1) of the Schedule?

RESULT

3The applicant is not barred from proceeding with his application. The application shall proceed to a hearing on the substantive issues as previously scheduled.

ANALYSIS

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 to the benefit, 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 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.

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 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.

7Based on the parties’ submissions and the evidence submitted, the facts are as follows.

8On December 15, 2022, the applicant was crossing the street on foot when he was struck and run over by a vehicle insured by the respondent. More specifically, the vehicle’s front passenger wheel ran over the applicant’s left foot. Emergency personnel attended the scene and an ambulance transported him to the hospital where x-rays confirmed a fractured second metatarsal and soft tissue injuries. At the time of the accident, the applicant was 68-years old, retired, and living with his wife and disabled adult son.

9As per the adjuster’s log notes, on the day following the accident, the vehicle’s policy holder (“the driver”) contacted the respondent, his insurer, and notified it of the accident. The log note of December 16, 2022 states:

-No contact information for pedestrian that was struck by [the driver]

-CSR, Amanda Wiercioch mentioned [the driver] is fine, no injuries and car is fine, that’s why no medpay/ab file open for [the insured]

-Called [the driver] to get information, he was on the phone with enterprised (sic) asked to call back, ok with Monday

-Mentioned he is fine no injuries just shocked at what occurred and does not have pedestrian information, just his name

-Will follow up with ucm in regards to pedestrian being struck and how to get contact info.

10In the “Loss Details” information received from the driver on December 16, 2022, and included in the log notes, the respondent was further advised that the driver ran over the applicant’s foot, the foot was “bruised”, police, ambulance and fire emergency personnel attended the scene, and the driver was ticketed by the police.

11A log note of February 13, 2023 indicates that the file was closed due to “no OCF-1/Application received to date”.

12On December 12, 2024, applicant’s counsel notified the respondent of the applicant’s intention to seek accident benefits and an OCF-1 was submitted on December 20, 2024. On December 27, 2024, the file was re-opened “as OCF-1 package received”.

13On January 3, 2025, the respondent sent correspondence to the applicant acknowledging receipt of his application, requesting an explanation for the delay, and requesting additional documentation and signed authorizations.

14On January 28, 2025, the parties participated in what they referred to as a “telephone statement” where the applicant provided information to the respondent’s representative, over the telephone. The telephone call was not recorded, rather, the respondent subsequently provided the applicant with a detailed written draft of the applicant’s statement and the applicant appears to have been invited to make edits, which he did in handwritten form. I note that some of the handwritten edits are difficult to read and some, illegible; however, in my view, they do not affect my findings on this preliminary issue.

15Through the telephone statement, the applicant explained to the respondent that he had no automobile of his own, no vehicles were owned by anyone in his household, he had no insurance and no knowledge of the accident benefits process. He submits that he emphasized this was his first claim ever and that the delay was due to his unawareness that such a claim could be made.

16On April 4, 2025, the respondent provided correspondence to the applicant advising that it was denying his claim for accident benefits based on section 32(1) of the Schedule. I note that the letter states, in part:

Based on the explanation given, along with review of your file. We believe there is insufficient reasoning as to why you did not claim or send an Application form (OCF-1) within 7 days or practicably thereafter since the accident. Given that you are a stranger to this policy, there is no obligation on the third-party insurer to contact you regarding your injuries.

17Of note, the respondent appears to state that the Schedule requires the applicant, as the injured pedestrian struck by a vehicle insured by the respondent, to submit his completed application (OCF-1) within seven days of the accident. This is incorrect. The Schedule requires that the respondent receive notification of the injured’s intention to claim accident benefits within seven days of the accident, or as soon as practicable thereafter. Pursuant to section 32(2), the insurer must then provide the injured with an accident benefits package, and the injured must submit their completed OCF-1 within 30 days of receipt of the package (section 32(5)).

18The respondent submits that the applicant only provided notice of the accident on December 12, 2024 when his counsel sent correspondence notifying it of a tort claim. A completed OCF-1 was submitted on December 20, 2024 and the respondent submits the applicant’s explanation for the delay is neither credible nor reasonable. Although the applicant did not own a vehicle at the time of the accident, the respondent points to a Driver Abstract Search History that shows the applicant was insured for 31 years for various periods between 1999 and 2019 and that he made at least three prior insurance claims. As such, the respondent argues that the applicant should be barred from proceeding with his application as he failed to notify it within the time prescribed at section 32(1) of the Schedule.

19The applicant submits that the respondent had early knowledge of the accident but ignored its duties pursuant to section 32(2) of the Schedule. He submits that any delay is excused by section 34, or that, in the alternative, relief from forfeiture should be granted under section 129 of the Insurance Act, R.S.O. 1990, C. I.8 (“the Act”) in the circumstances. He argues that the respondent’s reliance on technical deadlines while disregarding its own statutory and procedural obligations is inconsistent with both the consumer protection mandate of the Schedule and the duty of good faith owed by insurers to those they insure and those their insureds injure.

20The applicant further submits that his explanation is compelling. He is an elderly person, retired, with no automobile insurance, no familiarity with the accident benefits system, and no access to legal advice until December 2024. His ignorance was not willful, rather, it was the natural result of his situation. Once he was informed by counsel he acted immediately. He served all required forms and cooperated fully with the respondent’s requests. He argues the respondent suffered no prejudice as it had early notice of the accident as well as the applicant’s identify. Any delay caused was entirely due to the respondent’s own failure to act upon the information it possessed.

21The applicant points to a Motor Vehicle Accident Report (Driver Copy) provided by the Toronto Police Service which provides the full name of the pedestrian (i.e., the applicant), the police officer’s name and badge number, as well as the police officer’s email address. He argues that despite having the police officer’s contact information and the applicant’s name within a day of the accident, the respondent made no effort to locate or assist the applicant, provide the necessary forms, or explain the benefits available to him. He relies on Benoit v. Sonnet Insurance Company, 2025 CanLII 25859 (ON LAT) (“Benoit”) where the Tribunal found that once the respondent is notified of the accident, it should have inquired whether the applicant had sustained any injuries, clarified which benefits the insured was seeking, and sent the necessary application forms and explanation of benefits as required by section 32(2).

22The applicant argues that the respondent failed to take any of these steps and its inaction constitutes a breach of section 32(2) which disentitles it from relying on section 32(1). On this point, the applicant relies on the Divisional Court’s decision in Hussein v. Intact Insurance Company, 2025 ONSC 842 (“Hussein”).

23The respondent submits that the applicant’s position is not supported by the Schedule or any jurisprudence. It argues that neither the Schedule nor caselaw imposes an obligation on an insurer to investigate or seek out potential claimants in the absence of the claimant notifying the insurer of an intention to apply for accident benefits. It argues that the decisions in Benoit and Hussein are distinguishable because they deal with situations where an insured notified their insurer about the accident, but the insurer failed to make inquiries into the insured person’s injuries and/or intentions to claim accident benefits. They do not stand for the proposition that an insurer, on learning of an accident involving a third party, must proactively investigate or locate that third party where that third party has not given notice of an intention to claim benefits.

24The respondent relies on Mohamoud v. TD General Insurance Company, 2023 CanLII 116473 (ON LAT) and Mendowegan v. Definity Insurance Company, 2025 CanLII 78079 (ON LAT) and argues that the Tribunal held that neither statute nor jurisprudence imposes a duty on insurers to undertake investigations to identify or contact potential claimants simply because the insurer is aware of their involvement in an accident.

25The respondent further states that to investigate every accident report to determine whether any third party indicated on the report (e.g., pedestrian, cyclist) might also seek benefits would be unduly burdensome and operationally impractical. The Schedule places the initial notification obligation squarely on the claimant and there is no statutory basis for imposing a positive duty on insurers to undertake such an investigation in the absence of that person giving notice.

26I disagree with the respondent. Not only am I not bound by the Tribunal decisions relied on by the respondent, the Divisional Court in Hussein found that an 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. In my view, this positive obligation extends to insurers whose policy holder struck a pedestrian with their vehicle and the insurer obtained information of the injured person through that policy holder.

27With respect to the respondent’s argument regarding the burden this would impose on insurers, the Court in Hussein addressed this by stating: “I do not accept the Insurer’s submissions that this would put an unfair financial burden on insurers and would precipitate an increase in the number of claims, many of which could be illegitimate” (at para. 41).

28Pursuant to the Court’s direction in Hussein, I find that the respondent received notification of the applicant’s potential claim for accident benefits the day following the accident when the driver contacted it and provided it with the details of the accident, including that the applicant injured his foot when it was run over by the vehicle and was transported to the hospital by ambulance. As such, I find that the notification requirement of section 32(1) has been satisfied.

29It was at this point that the respondent had an obligation to take reasonable measures to obtain the applicant’s contact information and provide him with the accident benefits package. The respondent knew that the police had attended the scene and that the insured had been ticketed. At the very least, the respondent could have contacted the Toronto Police Service and/or requested a copy of the Motor Vehicle Accident Report which could have provided it with the applicant’s contact information. Instead, the respondent undertook no measures whatsoever and rested on its laurels.

30The respondent argues that even if it would have attempted to obtain the applicant’s contact information from the police, the release of records is governed by the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M56 which strictly limits disclosure of personal information about third party individuals. The respondent points to the request the applicant made for the complete police file and where the request was only partially disclosed and it refused to disclose the personal information of third parties.

31I am not persuaded by the respondent’s argument as it is purely speculative. Furthermore, there were two parties involved in the accident: the applicant and the insured. In response to the applicant’s request for the police file, he was provided with the insured’s full name, address, driver’s license number, license plate, vehicle identification number, and the insured’s insurance policy number. There is no evidence to suggest that the driver would not have obtained the applicant’s contact number had the respondent requested the information from the police on his behalf.

32I find it particularly disturbing, in light of the log notes submitted to the Tribunal, that the respondent argues it did not have a positive obligation to attempt to contact the applicant after it learned he had been injured in the accident. The log note of December 16, 2022 specifically states: “will follow up with ucm in regards to pedestrian being struck and how to get contact info”. This log note entry suggests that the respondent knew at the time it was notified of the accident that it had a positive obligation to make diligent efforts to get in contact with the applicant. The fact that it did nothing more, in my view, amounts to a willful disregard of its statutory obligations pursuant to section 32(2) of the Schedule.

33I therefore find that the notification requirement of section 32(1) was satisfied on December 16, 2022, when the respondent was notified by its insured that he had injured the applicant. In my view, this was sufficient to satisfy the notice requirement that the applicant would likely want to seek accident benefits. At this point, I find that the information provided was sufficient to trigger the respondent’s positive obligation pursuant to section 32(2) and Hussein for the respondent to make reasonable efforts to obtain the contact information of the applicant.

34The 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 information provided to the respondent. This, in my view, would have satisfied the consumer protection purpose of the Schedule.

35The applicant submitted his OCF-1 on December 20, 2024. He relies on the respondent’s failure to inform him of his entitlement to accident benefits and also his explanation for the delay provided through the telephone statement.

36Taking 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. The respondent was notified of the accident and the injury sustained by the applicant on the day following the accident by the driver. The respondent made no attempts to contact the applicant or provide him with the accident benefits package. I am therefore 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.

37Accordingly, I find that the applicant is not disentitled from receiving benefits and may proceed with his application.

38In light of my finding, it is not necessary to deal with the applicant’s alternative argument for relief from forfeiture.

ORDER

39The applicant is not barred from proceeding with his application. The application shall proceed to a hearing on the substantive issues as previously scheduled.