Summer Mendowegan v. Definity Insurance Company, 2026 CanLII 2231

RECONSIDERATION DECISION

Before: Tyler Moore, Vice-Chair

Licence Appeal Tribunal File Number: 24-014717/AABS

Case Name: Summer Mendowegan v. Definity Insurance Company

Written Submissions by:

For the Applicant: Daniel Lester, Counsel

For the Respondent: Nicholas Maida, Counsel

OVERVIEW

1On August 25, 2025, the applicant requested reconsideration of the Tribunal’s preliminary issue decision dated August 5, 2025 (“decision”).

2The Tribunal found that the applicant was barred from proceeding with her application, pursuant to s. 55(1), because she did not report the accident or submit an OCF-1 within the timeframes set out in s. 32 of the Schedule, and she did not provide a reasonable explanation for the delay, pursuant to s. 34. The subject accident occurred on July 23, 2023, and the applicant filed an OCF-1 on September 20, 2024.

3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:

a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;

b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or

c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

4The applicant seeks reconsideration pursuant to Rule 18.2(b). The applicant seeks an order setting aside the decision and to find that she is not barred from proceeding with her application.

5The respondent submits that the request for reconsideration should be dismissed.

RESULT

6The applicant’s request for reconsideration is dismissed.

ANALYSIS

7The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.

Rule 18.2(b) – Error of Law or Fact

8I find that the applicant has not established grounds for reconsideration under Rule 18.2(b).

9The applicant raises three alleged errors: her reasons for the delay were not sufficiently weighed by the Tribunal; the Tribunal erred in its assessment of the parties’ relative prejudice; and the Tribunal did not mention an analogous case she cited in its decision. I will address these grounds in turn.

Were the applicant’s reasons for the delay sufficiently weighed?

10The applicant submits that the Tribunal did not appropriately consider and weigh the reasons for her late application. According to the applicant, the Tribunal found that she was an unsophisticated person, but did not consider or give weight to how the characteristics that made her an unsophisticated person affected her ability to apply for accident benefits in time. The applicant submits that her lack of education, geographical remoteness, lack of life experience, cultural differences, lack of access to services, and the fact that she was struck by an uninsured dirt bike were not adequately addressed and weighed by the Tribunal.

11The applicant also submits that the Tribunal did not consider the complex insurance implications of her case, given that she had no motor vehicle insurance of her own, or the severity of her left foot and subsequent back injuries requiring multiple surgeries.

12The applicant argues that the Tribunal placed significant weight on her access to the internet while in hospital, as well as a conversation she had with her aunt who encouraged her to contact a lawyer months before she did. In her examination under oath (“EUO”), however, the applicant explained that she was not ready to contact a lawyer earlier as she was recovering from six leg surgeries and months of hospitalization after the accident.

13I find that the applicant is attempting to re-litigate her position. As outlined above, the reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the weight assigned to the evidence.

14At paragraph [6] of the decision, I find that the Tribunal outlined the correct legal test by setting out the guiding principles to be considered when interpreting whether a person has provided a reasonable explanation for the delay, including ignorance of the law not being a standalone reason.

15At paragraphs [13] and [14] of the decision, the Tribunal found that the applicant was an unsophisticated person but acknowledged that such a finding was only one consideration in the assessment of whether she provided a reasonable explanation. The Tribunal considered the applicant’s level of education, age, geographic location, the fact that she was a pedestrian, that she did not have insurance of her own, and that she was dependent on her father. The Tribunal also considered the insurance complexities of the case by acknowledging that the applicant would not have known she was entitled to benefits under her father’s insurance.

16At paragraphs [13] and [17] of the decision, the Tribunal acknowledged the severity of the applicant’s left leg injury, the six surgeries that she had undergone for her left leg, and her hospitalization for two and a half months after the accident. The Tribunal also considered and accepted that the applicant was focused on her injuries and recovery for several months after the accident, while being mindful that her application for benefits was not submitted for 14-months after the accident.

17At paragraphs [18] and [19] of the decision, the Tribunal considered whether the applicant’s explanation for the delay continued to be reasonable between the time she was discharged from hospital and the time that the OCF-1 was submitted. Specifically, the Tribunal pointed out that it had not been directed to evidence that the applicant continued accident-related treatment into 2024 until she presented to hospital in April 2024 after slipping on ice the week before, and then her subsequent 2024 hospital visits that were unrelated to the accident, including spinal surgery.

18I find that there is no indication in the decision that the Tribunal gave significant weight to the applicant’s access to the internet in the hospital or the conversation she had with her aunt about consulting a lawyer. Those considerations were briefly mentioned at paragraphs [14] and [15] of the decision where the Tribunal clarifies why it relied on these facts.

19Overall, I find that the Tribunal’s weighing of the evidence does not constitute an error of fact or law. I also find that the Tribunal considered both subjective and objective factors through its analysis of both the personal characteristics and the “reasonable person” standard – key elements of the test for a reasonable explanation under s. 34. The applicant has not demonstrated an error in this regard.

Was there a disproportionate balance of prejudice?

20The applicant submits that the Tribunal’s decision gives disproportionate weight to the prejudice the respondent would experience from the loss of its ability to contemporaneously assess her. According to the applicant, this prejudice is mitigated by the extensive medical record that supports ongoing treatment, care, and rehabilitation. The applicant also submits that she did not have access to funding to pursue things like an attendant care assessment on her own.

21The respondent submits that the applicant’s submissions do not point to evidence highlighting specific future treatment or attendant care needs at first instance. According to the respondent, the applicant’s reconsideration submissions provide more detail, and are an attempt to rectify deficiencies in her initial preliminary issue hearing submissions.

22I find that the Tribunal considered and weighed the prejudice to the parties at paragraphs [19] to [23] of the decision. At paragraph [21] the Tribunal found that “the delay has caused prejudice that cannot be overcome strictly with medical records because the medical records were created strictly for the purposes of treatment, without consideration for causation.” The Tribunal was referring to the multiple post-accident hospital visits and surgery for unrelated injuries from April to September 2024. I find that the applicant has not addressed or considered the prejudicial implications of causation to the respondent in her reconsideration submissions.

23Even if I accept the applicant’s submission that prejudice to the respondent is mitigated through these medical records, principle (e) of the guiding principles for assessing a reasonable explanation under s. 34 (as set out at paragraph [6] of the decision) clearly states that a lack of prejudice to the insurer does not make an explanation automatically reasonable.

24I find that, when considering the decision as a whole as well as taking into account the multiple factors assessed by the Tribunal in arriving at its decision, the Tribunal would not likely have reached a different result had it found that the respondent was not prejudiced. The decision shows that the level of prejudice facing the parties was assessed and explained with reasons, and even if the Tribunal’s assessment was incorrect, I find that a lack of prejudice facing the respondent would not likely have impacted the outcome.

Was the Tribunal required to address Shaver v. Onlia Insurance Company, [2023 CanLII 58481 (ON LAT)](https://www.minicounsel.ca/olat/2023/58481) (“Shaver”) because it was raised by the applicant?

25The applicant submits that facts in Shaver are analogous to this case in that the applicant was an unsophisticated person who was struck by a motor vehicle while a pedestrian and sustained some significant injuries as a result. The applicant argues that the facts in Shaver are almost identical to this case, yet the Tribunal made no mention of Shaver in its decision.

26The parties agree that Shaver was raised by the applicant at first instance.

27I agree with the applicant that the Tribunal should have addressed Shaver in its decision. However, to trigger Rule 18.2(b), the requesting party must both show that an error occurred, and that the error would likely have impacted the outcome.

28I find that cases involving s. 32 compliance are highly fact-specific and contextual. The applicant may highlight similarities between her case and Shaver, but I find that, ultimately, the analysis of a reasonable explanation under s. 34 centers around the specific context of the case at hand. The applicant has not pointed me to a legal principle that was missed in the Tribunal’s decision by not addressing Shaver.

29For these reasons, I find that the applicant has not demonstrated that the Tribunal erred in fact or law in its decision such that it would likely have reached a different result had the error not been made. As a result, the applicant’s request for reconsideration under Rule 18.2(b) is dismissed.

CONCLUSION & ORDER

30The applicant’s request for reconsideration is dismissed.

Tyler Moore
Vice-Chair