Licence Appeal Tribunal File Number: 25-007404/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:
Shelly-Ann Jones
Applicant
and
Security National Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Trina Morissette, Vice-Chair
APPEARANCES:
For the Applicant:
Savannah Chorney, Counsel
For the Respondent:
Tessie Kalogeras, Counsel
HEARD: In writing
OVERVIEW
1Shelly-Ann Jones, the applicant, was involved in an incident on January 25, 2019, and sought benefits from Security National 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 respondent raised the following two preliminary issues:
i. Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?
ii. 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 a practical after that day?
RESULT
3The incident of January 25, 2019 is an “accident” as defined in section 3(1) of the Schedule.
4The applicant breached the notification requirements of section 32 of the Schedule and has not provided a reasonable explanation.
5The applicant’s request for relief from forfeiture, pursuant to section 129 of the Insurance Act, R.S.O. 1990, c. I.8 (“the Act”), is denied.
6The applicant is barred by section 55(1) of the Schedule from proceeding with her application before the Tribunal.
ANALYSIS
The incident meets the definition of an “accident” as defined by the Schedule
7The Schedule provides that insurers are liable to pay certain benefits to or on behalf of insured persons who sustain an impairment as a result of the use or operation of an automobile. Section 2(3) of the Schedule provides that the benefits set out in the Schedule shall be provided in respect of “accidents”. Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment.”
8The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries.
9In Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226, the Ontario Court of Appeal confirmed the two-part test to determine whether an incident is an “accident” as follows:
a. Purpose test: did the incident arise out of the use or operation of an automobile? and
b. Causation test: did the use or operation of an automobile directly cause the impairment?
10The respondent submits that some of the facts in this case are in dispute and points to the various descriptions of the incident provided by the applicant in her Application for Accident Benefits, the reports to various health professionals, and her examination under oath (“EUO”) held November 21, 2024.
11The facts that are not in dispute are as follows. On January 25, 2019, the applicant drove her vehicle to her father’s home to pick him up and take him to a nearby pharmacy to check his blood pressure. When she arrived at his home, her father was waiting outside on the porch. She left the vehicle running, exited, and proceeded to walk around the back of her vehicle. Her intention was to get her father, open the passenger-side door, and assist him in the vehicle. When she walked to the back of the vehicle, the applicant fell.
12The respondent takes issue with two main aspects of the applicant’s version of events. First, the applicant stated at times that she slipped on ice but she also reported on other occasions that there was no ice or snow in the driveway. Secondly, there are contradictory reports that she hit her head against the bumper of the vehicle versus the pavement. Other reports suggest the applicant was unsure whether she hit anything at all.
13The respondent submits that the preponderance of evidence appears to support that the applicant slipped and fell on ice. However, it submits that the evidence regarding whether the applicant struck her body (i.e., her head) on the vehicle appears to be divided.
14The applicant submits she is unsure what caused her fall. She acknowledges that at the EUO she indicated that the driveway was not icy, however medical records indicate she reported falling on ice. The applicant reports she sustained impairments due to the fall including cognitive difficulties such as decreased short-term memory, being more distracted, feeling foggy and being unable to tolerate screen time.
15In my view and for the reasons that follow, the inconsistent reporting of the applicant does not impact on whether the incident of January 25, 2019 qualifies as an “accident” as defined in the Schedule.
The Purpose Test
16I find the purpose test has been met.
17As set out in Greenhalgh v. ING Halifax Insurance Company, 2004 CanLII 21045 (ONCA) (“Greenhalgh”) at para. 11, the purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put.” Put another way, for what “purpose” was the vehicle being used at the time of the incident?
18The respondent relies on a decision of this Tribunal in Mahoney v. Co-operators General Insurance, 2020 CanLII 10634 (ON LAT) (“Mahoney”) where it was found that the ordinary and regular use of the applicant’s vehicle ended once she started to exit the automobile. The respondent submits that the purpose test has not been met as the applicant was out of her vehicle and walking away from it at the time of the fall.
19I am not bound by Mahoney and find that the purpose test does not require the active use of the vehicle: see Davis v. Aviva General Insurance Co., 2024 ONSC 3054 (“Davis”). I am satisfied that on a balance of probabilities, the purpose test has been met because, as reported by the applicant, the vehicle was being used for the purpose of picking up another passenger and transporting them to an appointment, an ordinary and well-known activity for which vehicles are put.
The Causation Test
20I find the causation test has also been met.
21As set out in Greenhalgh, the causation test requires the Tribunal to determine if this ordinary and well-known activity was the direct cause of the applicant’s impairments by focusing on the following considerations:
a. whether the incident would not have occurred “but for” the use or operation of the motor vehicle;
b. whether there was an intervening cause that cannot be said to be part of the ordinary course of the use or operation of the motor vehicle; and
c. whether the use or operation of the motor vehicle was the dominant feature of the incident.
22Neither party expressly addressed the ‘but for’ consideration in their submissions. The threshold for the ‘but for’ test is low and does not require that the accident be the only cause of the impairments the applicant is currently suffering. Having not addressed it, I infer there is no dispute that the injuries would not have occurred but for the use or operation of the automobile, and therefore the first part of the causation test has been met.
23In Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA) (“Chisholm”), the Court of Appeal requires that a claimant must go further than to simply establish that ‘but for’ the use or operation of an automobile, the incident in question would not have occurred. The use or operation of a vehicle must be a direct cause. This issue was further explored in Sabadash v. State Farm et al., 2019 ONSC 1121 (“Sabadash”), where at para. 39, the Divisional Court rejected the Director’s Delegate’s finding “that the accident in issue must be sufficient in itself to have caused the impairment: that it must be “the cause” as opposed to “a necessary cause”.
24Since the ‘but for’ test does not conclusively establish legal causation, the analysis turns to a consideration of whether there was an intervening act that severed the chain of causation and whether the use or operation of the vehicle was the dominant feature of the applicant’s injuries. As noted in Greenhalgh, an intervening act will absolve the insurer of liability if it cannot fairly be considered a normal incident of the risk created by the use or operation of the automobile.
25The respondent submits that an intervening act resulted in the injuries of the applicant, being the ice on the driveway. It argues that the automobile may have been the means of transportation to the icy spot, however, it was not the cause of the slip and fall. The slip and fall occurred independent of the automobile’s use or operation. The respondent relies of several decisions of this Tribunal to support its argument.
26I find that, like in Davis, the ice the applicant slipped on (if there was indeed ice but for which the respondent argues there was) was fortuitous and not an intervening cause. As referenced in Davis, Laskin J.A. wrote in Chisholm that “an intervening act may not absolve an insurer of liability for no-fault benefits if it can fairly be considered a normal incident of the risk created by the use or operation of the car – if it is “part of the ordinary course of things”.”
27Here, the applicant was in the process of gathering her father to assist him into the vehicle and to transport him to his appointment, which I have already found is part of the ordinary use or operation of a vehicle. It was in the process of doing so when she fell – or as the respondent alleges, she slipped on ice. Icy surfaces during our Canadian winters are a normal phenomenon. Here, I agree with the applicant and find that the icy driveway was a normal risk created by the ordinary use or operation of the vehicle and not an intervening cause that broke the chain of events.
28Regarding the third branch of the causation test, the “dominant feature” consideration, the respondent submits that the dominant feature of the applicant’s alleged injuries was the ice which caused her fall. It relies on Ritchie v. Economical Insurance, 2021 CanLII 134534 (ON LAT) (“Ritchie”), a decision of this Tribunal, and submits that the applicant’s proximity to the vehicle is deemed ancillary to the events that caused her injuries. In Ritchie, the adjudicator was not persuaded that the applicant was in the process of entering the vehicle at the time of her slip and fall, nor that the use of the key fob somehow caused her to slip and fall on the ice.
29The respondent also cites Davis and argues that it was the presence of the key fob that supported the Court’s finding that the use of the vehicle was the direct cause of the fall, not the ice. In this matter, the respondent submits that the applicant was not holding her keys and therefore, her balance was not affected by her keys.
30As per Davis, “a flexible approach must be taken for finding whether the use or operation of an automobile is a direct cause of an impairment to establish entitlement to accident benefits” (at para. 78). As described in Greenhalgh, the “dominant feature” consideration requires an adjudicator to determine what element of an incident is “the aspect of the situation that most directly caused the injuries.” For instance, in Greenhalgh, the incident involved the insured person suffering from severe frostbite after getting her vehicle stuck on a country road. In dismissing the claim of an “accident”, Justice Labrosse found that “the ‘dominant feature’ of the insured’s injuries could be best characterized as exposure with the elements, and that the use of the motor vehicle was ancillary to that injury.”
31I am not bound by the Ritchie decision of this Tribunal. Here, similar to the facts in Davis, which I am bound by, the applicant was in the proximity of the vehicle when she fell. In fact, she was so proximate to the vehicle that there is a dispute as to whether the applicant hit her head against the bumper of the vehicle or on the driveway. I therefore agree with the applicant and find that the activity she was undertaking at the time of the fall - being the pick-up and transportation of her father to his appointment and not the ice beneath her feet - was the direct cause of the applicant’s fall.
32For the reasons stated above, I find that the incident meets the causation test of an “accident”. Any impairments the applicant sustained as a result of the incident resulted from an “accident” as defined by the Schedule.
The applicant breached section 32 of the Schedule and has not provided a reasonable explanation
33In the alternative, the respondent argues that the applicant failed to notify it of the circumstances giving rise to a claim for benefits no later than the seventh day after the circumstances arose or as soon as practical after that day. As such, it argues that the applicant is statute-barred pursuant to section 55(1) from proceeding with her application.
34Section 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.
35Once 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.
36Section 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.
37The parties do not dispute that the applicant notified the respondent, through her legal counsel, that she intended to seek accident benefits on April 3, 2023 and submitted her completed OCF-1 on April 16, 2023 – approximately four years and three months after the accident.
38The question before me is therefore whether the applicant provided a reasonable explanation for her delay. The applicant explains that she met with her counsel at the time (Longo Lawyers) and discussed the subject accident. She believed counsel notified the respondent and submitted her application for benefits.
39Based on the parties’ submissions and the evidence submitted, the facts are as follows.
40The applicant was involved in three prior accidents: November 24, 2012, May 19, 2016, and November 4, 2016. From the time of her first accident, the applicant had retained legal representation (Longo Lawyers).
41The applicant retained her current counsel on March 3, 2023.
42Through email correspondence between the applicant’s current counsel and prior counsel between April 6, 2023 and April 17, 2023, I note the following:
On April 6, 2023, applicant’s current counsel requested a copy of prior counsel’s complete file. I note that the email references a letter dated April 6, 2023 but the letter was not submitted;
The prior law firm advised that they were removed as solicitors of record (no specific date provided) but advised that the file had been archived since November 2020;
The prior law firm advised that “it would appear” they only represented the applicant for the accident that occurred in 2012; and
The prior law firm advised that the file would be provided once their Statement of Disbursements is paid.
43Current counsel sent a letter to prior counsel dated May 19, 2023, noting the following:
She had not been retained by the applicant to represent the applicant in relation to the 2012 accident. I infer by counsel’s statement that she was retained for the subsequent three accidents, including the subject accident;
The applicant advised her current counsel that, at the time prior counsel sought to remove themselves as solicitors of record (date unknown), the Master ordered that no costs would be payable by the applicant, including disbursements; and
Current counsel requested confirmation as to whether or not prior counsel filed an application for accident benefits in relation to the three other accidents, being May 19, 2016, November 4, 2016 and January 25, 2019.
44It is unknown whether current counsel received a response to her letter of May 19, 2023 as no further correspondence between applicant’s legal representatives was submitted and the applicant did not provide this information in her submissions.
45The applicant was requested by the respondent to attend an Examination Under Oath (“EUO”) scheduled for November 21, 2024. Based on the transcripts of this EUO, the applicant explained that she reported the subject accident to her prior counsel and understood that her prior counsel had notified her insurer and submitted her claim. She only found out years later that the documents were never submitted.
46For the reasons that follow, I find that the applicant has not provided a reasonable explanation for the delay in notifying the respondent pursuant to section 32(4) of the Schedule.
47The applicant submits that an erroneous belief that the requirements of section 32 had been complied with by her prior legal counsel is a reasonable explanation and relies on an unpublished decision of this Tribunal in Buttenham v. Northbridge General Insurance Company, 2024 ONLAT 23-008795 (“Buttenham”).
48The respondent submits that this is not a reasonable explanation for the delays as the applicant had access to legal advice through her retention of prior experienced legal counsel. It submits that the delay has caused it prejudice by preventing it to obtain timely assessments of the benefits in dispute.
49I am not bound by Buttenham but nonetheless, I find that the facts in this matter are significantly distinguishable from this Tribunal’s prior decision. In Buttenham, the Tribunal found that the applicant had submitted correspondence between her current counsel and her prior counsel which showed that while the applicant did contact the previous law firm, they were never actually retained. Here, the applicant received no such confirmation. While it is possible that the applicant had met with her prior counsel to discuss the subject accident, she has not provided the necessary evidence to confirm it.
50There is correspondence confirming that prior counsel was removed as solicitors of record but no order or other evidence was submitted to confirm when this occurred. The correspondence from prior counsel states that “[w]e got off the record on this file, and it has been archived since November 2020 (…)” but this does not provide sufficient proof that after the accident in January 2019, the applicant met with her prior counsel to discuss the accident or even whether this occurred before they were removed.
51Even if the Tribunal was to give the applicant the benefit of the doubt that she likely met with prior counsel to discuss the subject accident, this does not help explain the approximate two and a half years between November 2020 (when prior counsel archived her file) and March 3, 2023 (when she retained her current counsel) where there is no evidence that the applicant took any steps to follow up on her claim. The applicant submits that she has sustained cognitive difficulties but does not submit that this equates to a total memory loss.
52The person in the best position to provide the evidence of the retainer letter with prior counsel, to confirm when prior counsel was removed as solicitors of record, and to confirm whether the applicant met with prior counsel prior to them being removed from the record, is the applicant. The applicant’s current counsel requested the complete file from prior counsel. Receipt of this file would provide the retainer letter detailing the scope and nature of the retainer between the applicant and her prior counsel and might also provide information of the applicant’s meeting with her then counsel after the January 2019 accident. Producing such documentation would not necessarily be a breach of solicitor-client privilege as the privilege belongs to the applicant and she could waive the privilege if she chose to do so.
53Based on the evidence submitted, it would appear that the claim for accident benefits in the 2012 accident followed the previous statutory process where a claim was filed in the Superior Court of Ontario. There is also reference in the evidence that the parties went before the Master to determine the request for removal as solicitors of record and that the Master granted the request.
54The Master would have provided each party with an order granting the request. A copy of this order would assist in determining the length of the applicant’s retainer with her prior counsel and provide some evidence to support her submissions regarding the reasonable explanation she put forward. A copy of this order could have been put forward by the applicant who would have received a copy, or through the disclosure of the applicant’s file to current counsel, or even through a request for public records, but no such document has been produced.
55The applicant has provided no explanation for not producing such records.
56The applicant puts forward another decision of the Tribunal (Mekonnen v. Sonnet Insurance Company, 2024 ONLAT 23-014535) where she submits that the applicant’s reliance on his representative was found to be a credible and reasonable explanation, supported by the evidence of his representative’s attempts to obtain his accident benefits file. In Mekonnen, the applicant submitted that because his legal representative was not provided with a copy of the respondent’s accident benefits file promptly, the representative was not aware that the OCF-1 had not been submitted.
57In my view, Mekonnen is distinguishable with the current matter. Here, the applicant’s current counsel made the request for the applicant’s file with prior counsel in April 2023, more than two years after prior counsel was removed as solicitors of record. First, the applicant has provided no information as to why she waited more than two years to retain her current counsel after prior counsel was removed, or what attempts she made to follow up on the claim in the interim. Secondly, it remains unknown whether current counsel received prior counsel’s file as this was not clearly addressed in the submissions. If the file has not been provided, there is no information submitted regarding any additional attempts made to retrieve the file after current counsel’s letter of May 19, 2023, or any explanation for why the file was not provided (if that is the case).
58Also, there is no evidence that the applicant’s prior counsel was retained for the subject accident, as she submits, and the applicant has not produced any documentation, such as a retainer letter, to support her assertions. I therefore find that the mere reliance on her prior counsel is not a reasonable excuse.
59As noted above, the applicant also submits that she sustained psychological, physical and cognitive impairment which made her vulnerable and unable to act sooner. She relies on an unpublished decision of this Tribunal in Campana v. Definity Insurance Company, 2025 ONLAT 24-014391. She submits that the Tribunal has accepted physical and psychological impairments, and post-concussive symptoms as reasonable explanations.
60Although some impairments could, in some circumstances, explain an applicant’s delay in notifying or submitting a claim with their insurer, the applicant has not persuaded me here that the applicant’s post-concussive symptoms, cognitive difficulties and psychological issues prevented her from doing so.
61The applicant submitted medical documentation (clinical notes and records of her family physician, hospital records, clinical notes and records of treatment facilities) but has not pointed me to medical documentation to support that a medical professional found that her impairments would prevent her in a way where she was unable to satisfy the timelines of section 32. It is not sufficient for the applicant to show she has these impairments; she also must show that the impairments affected her in a way where she was unable to fulfil her obligations and it is not for the Tribunal to go through all of the medical documentation to make her case for her: see Dooman v. TD Insurance Co., 2025 ONSC 184 at para. 50.
62An assessment of reasonableness includes a balancing of prejudice to the respondent, hardship to the applicant, and whether it is equitable to relieve against the consequences of the failure to comply with the time limits at section 32. The applicant submits that her financial and physical hardships, and the severity of her injuries, outweigh the prejudice to the respondent. She argues that the medical documentation available, the respondent’s failure to request assessments upon receipt of her application, and her participation in the EUO reduce its prejudice. I disagree. As submitted by the respondent, the 4-year delay in notifying it and providing it with her application is significant and inordinate, and it has affected the respondent’s ability to assess the applicant’s entitlement to benefits on injuries that may have occurred as a result of the subject accident.
63The applicant contends that it was her belief that her prior counsel had notified her insurer and submitted her claim after a meeting with them to discuss the subject accident. Taking into account the principles of K.H., for the reasons provided above, and from the perspective of a reasonable person, her explanation is neither credible nor is it supported by the evidence. Ultimately, she notified the respondent and submitted her application for accident benefits more than four years after the accident. These significant delays have caused prejudice to the respondent in fulfilling its obligations to investigate and assess her claim and the applicant has provided no reasons why she waited over two years (after her prior counsel was removed as solicitors of record) to retain her current counsel, or what steps, if any, she took to advance her claim.
64For these reasons, I find that the applicant has not met her onus to establish a reasonable explanation for the delays.
The applicant’s request for relief from forfeiture pursuant to section 129 of the Act is denied
65In the alternative, the applicant submits that this is a proper case to grant relief from forfeiture pursuant to section 129 of the Act. Section 129 states the following:
129 Where there has been imperfect compliance with a statutory condition as to the proof of loss to be given by the insured or other matter or thing required to be done or omitted by the insured with respect to the loss and a consequent forfeiture or avoidance of the insurance in whole or in part and the court considers it inequitable that the insurance should be forfeited or avoided on that ground, the court may relieve against the forfeiture or avoidance on such terms as it considers just.
66Relief from forfeiture refers to the authority to protect a person against the loss of an interest or a right because of a failure to perform a covenant or condition in an agreement or contract (Kozel v. Personal Insurance Co., 2014 ONCA 130 at para. 28) (“Kozel”). The Supreme Court of Canada extended this relief to statutory conditions in certain circumstances: see Falk Bros. Industries Ltd. v. Elance Steel Fabricating Co., 1989 CanLII 38 (SCC), [1989] 2 SCR 778, at para. 13, and Kozel, at para. 47.
67In Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 SCR 490, 1994 CanLII 100 (SCC) (“Saskatchewan River”), the Supreme Court of Canada outlined the factors to consider when deliberating on whether to grant the purely discretionary equitable remedy of relief from forfeiture as being, (i) the conduct of the applicant, (ii) the gravity of the breach, and (iii) the disparity of the property forfeited and the damage caused by the breach (at p. 504).
68The onus is on the party seeking relief from forfeiture. The Tribunal has jurisdiction to grant this relief: see Botbyl v. Heartland Farm Mutual Inc., 2025 ONSC 3349.
69The respondent did not provide submissions in relation to the applicant’s request for relief from forfeiture.
70The applicant relies on Kozel and submits that the conduct of an application should focus on the reasonableness of the breaching party’s conduct as it relates to all facets of the contractual relationship, including the breach in issue and the aftermath. A failure to act reasonably in this analysis requires evidence of willful blindness, recklessness, ongoing negligence, and failure to remedy a breach upon its discovery. The applicant submits that she immediately remedied the lapse by notifying the respondent upon becoming aware of the non-compliance and therefore, there is no evidence of unreasonable behaviour.
71I disagree. The applicant contends she relied on her prior counsel to notify the respondent and submit her application after meeting with them to discuss the subject accident. There is no evidence to support this assertion. In addition, after prior counsel was removed as solicitors of record, there is also no evidence that the applicant took steps to move her application forward. Although an application was submitted in April 2023, she waited over two years to retain her current counsel. In my view, this constitutes willful blindness and ongoing negligence.
72The applicant also submits that an analysis of the gravity of the breach should consider the nature of the breach itself and the impact of that breach on the contractual rights of the other party. Where the breach has no impact on the contractual rights of the insurance company, the breach is not grave. She submits that the late submission of an application for benefits that the respondent is contractually required to pay cannot be a grave breach in the circumstances.
73I am not persuaded by this argument mainly because there is no finding that the respondent is “contractually required to pay” the applicant’s claims for benefits until the merits are determined at a hearing on the matter. Being involved in an accident is a threshold issue that does not, in and of itself, entitle the applicant to benefits. Entitlement to each benefit has its own substantive test which must be met. I find the applicant has not satisfied that the gravity of her breach is low.
74In her submissions on the disparity of the value forfeited and the prejudice sustained by the respondent, the respondent relies on the dissenting decision of MacPherson J.A. in Cervo to submit that the respondent must provide concrete evidence of the prejudice it sustained. In Cervo, MacPherson J.A. found that the prejudice noted by the insurer of its inability to obtain medical assessments at an early date and the effect of not identifying and properly interviewing witnesses was not sufficient; more specific details should be provided.
75I note that the concurring decision of Labrosse J.A. and Rosenberg J.A. in Cervo disagreed with MacPherson J.A.’s position and found that the “onus remains on the plaintiff to show that the defendant will not be prejudiced by an extension of time (Cervo, at para. 75).
76Pursuant to the concurring decision in Cervo, and as I have found above at paragraph [61] of this decision, the disparity between the value forfeited and the damage caused weighs in favour of the respondent.
77I find that the applicant has not satisfied her onus that this is a proper matter to grant the relief from forfeiture.
Section 55
78Pursuant to section 55(1)1 of the Schedule, an insured person shall not apply to the Tribunal under section 280(2) of the Insurance Act if the insured person has not notified the insurer of the circumstances giving rise to the claim or has not submitted an application for the benefit within the time limits prescribed in section 32.
79As outlined above, I find that the applicant did not notify the respondent within the timelines prescribed by the Schedule, she did not submit an application for benefits within the timelines prescribed by the Schedule and she has not provided a reasonable explanation for the delays. In addition, the applicant’s request for forfeiture is denied. Accordingly, I find that the applicant is statute-barred from proceeding with his application before the Tribunal.
ORDER
80For the reasons stated above, I find:
i. The incident of January 25, 2019 is an “accident” as defined in section 3(1) of the Schedule;
ii. The applicant breached the notification requirements of section 32 of the Schedule and has not provided a reasonable explanation;
iii. The applicant’s request for relief from forfeiture, pursuant to section 129 of the Act, is denied;
iv. The applicant is barred by section 55(1) from proceeding with her application before the Tribunal. The Tribunal shall vacate any dates that have been scheduled for the substantive issues hearing.
Released: January 15, 2026
Trina Morissette
Vice-Chair