Licence Appeal Tribunal File Number: 25-006899/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:
Mufide El Hacci
Applicant
and
Co-operators General Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Trina Morissette, Vice-Chair
APPEARANCES:
For the Applicant:
Dale Rosenberg, Counsel
For the Respondent:
Julianne Brimfield, Counsel
HEARD:
In writing
OVERVIEW
1Mufide El Hacci, the applicant, was involved in an automobile accident on September 5, 2023, and sought benefits from Co-operators General 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:
i. Is the applicant barred from proceeding to a hearing as she 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 not barred from proceeding with her 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.
7The applicant was a passenger in her nephew’s vehicle on September 5, 2023 when it collided with another vehicle while turning left. The vehicle was hit on the front passenger-side where the applicant was seated. No injuries are noted in the Motor Vehicle Accident Report and no one was taken to the hospital from the scene.
8The applicant’s nephew reported the collision to the respondent on the same day. During this initial call, the nephew reported that his aunt (the applicant) was also a passenger in the vehicle, but he denied that anyone was injured.
9The respondent submits that it dealt with the nephew multiple times during the course of the property damage claim and at no point during these communications was it advised of any injuries arising from the accident. It was only on June 11, 2024 that the respondent was contacted by a treatment facility regarding a claim for the applicant. Following the call with the treatment facility, the respondent sent an accident benefits package to the applicant on June 24, 2024 and on the same day, a completed OCF-1 was received from the applicant. The respondent submits that the applicant did not notify it of her intention to apply for accident benefits within the timeframe of section 32(1) and the application for accident benefits was only submitted over nine months after the accident.
10At an Examination Under Oath (“EUO”) held on August 27, 2024, the applicant testified that she sustained injuries to her lower back, issues with incontinence, psychological issues, and developed mobility difficulties as a result of the accident. She also testified that although she knew the vehicle was insured, she did not know that she had the right to ask for accident benefits. After her condition deteriorated, she learned she had the right to.
11The applicant submits that the delays stem from her sincere lack of understanding of how the Canadian system works. This was compounded by the fact that she did not have insurance, nor did her husband, and she had only been in the country for approximately eleven weeks at the time of the accident. She also submits that she was in a state of shock after the accident and was afraid to attend the hospital or the police station. She argues that to bar this claim in these circumstances would be to deny an innocent individual her access to justice and would be contrary to the spirit of the Schedule.
12The respondent submits that ignorance of the law is not a reasonable explanation for the delay. It also argues that medical records received to date from the applicant support that the applicant’s testimony is not credible or worthy of belief. It argues that there is currently no contemporaneous evidence to prove a causal link between the collision and the applicant’s impairments.
13Whether the applicant can prove she sustained injuries as a result of the accident has no bearing on whether the applicant’s explanation for the delays in notifying and providing her OCF-1 to the respondent is reasonable. The merits of the applicant’s claims would be determined at a hearing of the matter should I determine the application may proceed, which, in this case, I do.
14Pursuant to Hussein v. Intact Insurance Company, 2025 ONSC 842 (“Hussein”) - a decision that neither party raised but one which I am bound by - 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.
15In my view, the respondent did not fulfil its positive obligation set out in Hussein. The Schedule is remedial and constitutes consumer protection legislation. The goal of the legislation 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.
16The log notes indicate that within the hours following the accident, the nephew contacted the respondent and notified it of the collision. The nephew also notified the respondent that his aunt, the applicant, was a passenger in the vehicle. A notation “Injuries: No” indicates that the nephew reported no injuries were sustained. There are thirteen additional entries in the log notes where the respondent communicated with the nephew. None of these entries indicate that the respondent inquired whether any injuries developed following the day of the accident, and no entries indicating that the respondent informed the nephew that he and his aunt (the applicant) were entitled to receive accident benefits if they sustained injuries. All communications after the day of the accident between the nephew and the respondent are in relation to the nephew’s property damage claim.
17Pursuant to Hussein, I find it unreasonable for the respondent to have relied entirely on a report of “no injuries” on the day of the accident when it is common knowledge that impairments do not necessarily become apparent until days or weeks following an accident. I also find it unreasonable based on Hussein that the respondent did not obtain the applicant’s contact information from the nephew and inquired directly with the applicant as to whether she sustained any injuries.
18I find that at the very least, a positive obligation to inquire and assist a claimant requires direct communication with all those the respondent is aware were involved in the accident, and notification to the potential claimants that they may have access to accident benefits. 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 nephew and the applicant. The respondent did not do any of these things.
19As per Hussein, I therefore find that the nephew’s reporting of the accident to the respondent in the hours following the accident is sufficient notice to satisfy the seven-day deadline for notice by the applicant under the legislation. Following this communication, I find that the respondent had a positive obligation to make further inquiries, to advise the nephew and the applicant of their right to claim accident benefits, and to comply with its obligation under section 32(2), which included sending out the necessary application forms and the explanation of benefits available. This, in my view, would have satisfied the consumer protection purpose of the Schedule.
20Taking 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 it has shown prejudice. In my view, the balance of the matter favours the applicant to proceed with her application as she will still have the substantive burden of proving her entitlement to the benefits she claims.
ORDER
21The applicant is not barred from proceeding with her application. The application shall proceed to a hearing on the substantive issues as previously scheduled.
Released: January 12, 2026
Trina Morissette
Vice-Chair