Citation: Mars v. Definity Insurance Company, 2026 ONLAT 24-004916/AABS

Licence Appeal Tribunal File Number: 24-004916/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:

Nekeshia Mars

Applicant

and

Definity Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kathleen Wells

APPEARANCES:

For the Applicant:

Harneet Badwal-Sandhu, Counsel

For the Respondent:

Mirsa Duka, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Nekeshia Mars, the applicant, was involved in an automobile accident on January 27, 2023, and sought benefits 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, Definity Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

Preliminary issue in dispute

2The preliminary issue in dispute is:

1. Is the applicant barred from proceeding with her claim for benefits 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 that arose or as soon as practicable after that day, and she failed to submit the Application for benefits (OCF-1) within the time frame prescribed in the Schedule?

Substantive issues in dispute

3The substantive issues in dispute are:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?

2. Is the applicant entitled to $1,356.35 for chiropractic services, proposed by Toronto Medical Centre in a treatment plan/OCF-18 (“treatment plan”) dated September 29, 2023?

3. Is the applicant entitled to $2,200.00 for chiropractic services, proposed by Toronto Medical Centre in a plan dated July 5, 2023?

4. Is the applicant entitled to $1,748.05 for a bio-psychosocial assessment, proposed by Toronto Medical Centre in a plan dated July 26, 2023?

5. Is the applicant entitled to $1,995.32 for a psychological examination, proposed by Toronto Medical Centre in a plan dated August 16, 2023?

6. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

7. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

Preliminary Issue:

4I find that:

1. The applicant is statute barred from bringing her claim for accident benefits because she did not comply with the time limits set out in s. 32(1), and did not provide a reasonable explanation for the delay.

2. The application is dismissed.

ANALYSIS

Preliminary Issue

Is the applicant barred from proceeding with her application because she did not comply with the time limits set out in s. 32(1)?

5I find that the applicant is barred from proceeding with her application because she did not notify the respondent of the circumstances which gave rise to the application within the time limits set out in the Schedule, and did not provide a reasonable explanation for the delay.

6The preliminary issue was added to the issues in dispute in a Tribunal motion order dated April 4, 2025.

7Section 32(1) of the Schedule provides that an insured must inform the insurer about the circumstances that gave rise to the application for benefits by the seventh day following the accident, or as soon as practicable. Section 34 provides 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.”

8The interpretation of “reasonable explanation” is guided by Horvath v. Allstate Company of Canada, 2003 ONFSCDRS 92 and was more recently reiterated in K.H. v. Northbridge General Insurance Company, 2019 (ON LAT). The guiding principles are summarized as follows:

1. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.

2. The onus is on the insured person to establish a “reasonable explanation”.

3. Ignorance of the law alone is not a “reasonable explanation”.

4. 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.

5. The lack of prejudice to the insurer does not make an explanation automatically reasonable.

6. 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.

9The respondent argues that the applicant should be barred from proceeding with her application because she did not inform the respondent of the circumstances giving rise to her claim for benefits or file an OCF-1 for more than five months after the accident and that the applicant’s explanation for the delay was not reasonable. The respondent further argues that it is prejudiced by the delay because it was unable to conduct an investigation into the applicant’s injuries.

10The applicant submits that all delays were reasonable based on the circumstances, arguing that the applicant did not want to report the accident because she was concerned that her insurance rates would increase, and that as soon as she became aware that she was entitled to claim medical and rehabilitation benefits, she acted promptly to submit her application. The applicant further argues that the respondent has not explained how it is prejudiced by the delay.

11The evidence reveals that the applicant filed a treatment confirmation form (OCF-23) on July 5, 2023, more than 5 months after the January 27, 2023 accident, followed by a disability certificate (OCF-3), on July 6, 2023. The respondent first informed the applicant that it was investigating the applicant’s claim under s.32(1) on July 12, 2023, when it also informed the applicant that she was required to submit an OCF-1.

12After receiving the applicant’s OCF-1 on July 21, 2023, the respondent made the first of several requests to the applicant for an explanation of the delay on July 31, 2023. The respondent requested a response by August 14, 2023, and the explanation was provided nearly four months later on November 23, 2023.

13I find that the applicant’s explanation does not meet the test of reasonableness as set out in Horvath. The applicant submits that she was unaware of her right to apply for accident benefits, however Horvath sets out that ignorance of the law alone is not a reasonable explanation.

14Further, the applicant submits that the respondent has not explained how it is prejudiced by the delay. However, in its submissions the respondent argues that the delay is prejudicial as it prevented the respondent from conducting an investigation into the applicant’s claim contemporaneous to the accident. As specified in Horvath, the lack of prejudice to the insurer does not make an explanation automatically reasonable. It is the applicant who bears the onus to provide a reasonable explanation.

15The applicant further explains that she did not expect such a minor accident to have such significant impacts on her physical and mental health. However, the applicant did not make any submissions with respect to the nature or severity of her injuries, or the course of her recovery prior to the submission of the first OCF-18 on July 5, 2023.

16The respondent counters that although the applicant visited her family doctor on multiple occasions in the six months following the accident, the CNRs of her family doctor reveal that she did not discuss the accident at any of these visits. Rather, she first raised her accident-related injuries on August 3, 2023, more than six months after the accident, and after the OCF-1 was filed.

17I find that the applicant’s 5-month delay in reporting the claim for accident benefits has prejudiced the respondent by interfering with its ability to obtain contemporaneous information regarding the applicant’s injuries, and to investigate and to assess the applicant’s claim. The applicant has not established hardship capable of outweighing that prejudice.

18For the reasons above, I find that the applicant has not provided a reasonable explanation for the delay to attract relief from the consequences of not complying with the time limit set out in s. 32(1).

19As a result, I find that the applicant is barred from proceeding with her application, because she did not inform the respondent of the circumstances giving rise to a claim for benefits within the timelines specified in s.32(1) of the Schedule.

20The application is dismissed.

ORDER

21The applicant is statute barred from proceeding to a hearing for her claim for accident benefits.

22The application is dismissed.