Licence Appeal Tribunal File Number: 25-006436/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:
Zakir Mohammad Ismail
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Trina Morissette, Vice-Chair
APPEARANCES:
For the Applicant:
Nashmil Mamresuli, Paralegal
For the Respondent:
Danielle Lecours, Counsel
HEARD:
In writing
OVERVIEW
1Zakir Mohammad Ismail, the applicant, was involved in an automobile accident on January 26, 2024, and sought benefits from The Dominion of Canada 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 issues are:
i. Is the applicant barred from proceeding to a hearing 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?
ii. Is the applicant barred from proceeding with his claim for benefits as he failed to submit the application for benefits (OCF-1) within the time prescribed in the Schedule?
RESULT
3The applicant is barred from proceeding with his application.
PROCEDURAL ISSUE
4In its responding submissions, the applicant submitted an affidavit sworn by him dated May 13, 2025. The respondent requests in its reply submissions that the affidavit be excluded from evidence and that any submissions based on the affidavit not be considered. The respondent argues that the affidavit is in contravention of the Case Conference Report and Order (“CCRO”) dated August 19, 2025 and was never disclosed to the respondent prior to service of the applicant’s submissions on this preliminary issues hearing.
5The respondent further argues that it was not afforded an opportunity to cross-examine the affiant or to challenge the reliability of his assertions, and it relies on Rule 9.3 of the Licence Appeal Tribunal Rules, 2023 (“Rules”) which prohibits a party from relying on evidence that was not properly disclosed without the Tribunal’s permission. The respondent submits that to admit the affidavit at this stage would amount to a hearing by ambush and a violation of procedural fairness.
6I agree with the respondent. The basic principle underlying the duty of procedural fairness is that parties affected by the decision should have the opportunity to present their case fully and fairly, know the case to be met, and have a decision affecting their rights, interests or privileges made using a fair, impartial and open process: see Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 39. Here, although sworn in May 2025, the applicant did not disclose the affidavit until he served his submissions on these preliminary issues on September 11, 2025. In doing so, the respondent received no notice of it and was not provided the opportunity to cross-examine the applicant on his assertions.
7I also agree with the respondent that the reliance on this affidavit is in contravention of the CCRO which specifically states at paragraph 11 that “the parties agreed that no affidavits will be submitted” on the preliminary issues hearing. The applicant did not seek permission of the Tribunal to vary the CCRO, pursuant to Rule 9.3, to rely on the affidavit.
8I also note that the affidavit was commissioned on May 9, 2025 before the applicant (the affiant) swore to its truthfulness and accuracy on May 13, 2025. In my view, this raises questions around the validity of the statements made.
9For these reasons, the affidavit of the applicant, sworn May 13, 2025, shall be excluded and any evidence or submissions based on the information in the affidavit will not be considered.
10I note that even if I allowed the applicant to rely on his affidavit, this would not have changed my analysis. In my view, there is no information in the affidavit that materially adds to the submissions the applicant makes on the preliminary issues nor is there evidence, such as medical documentation, affixed to the affidavit for consideration.
ANALYSIS
11Section 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.
12Once 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.
13Section 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.
14Additionally, pursuant to Hussein v. Intact Insurance Company, 2025 ONSC 842 (“Hussein”), 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.
15The parties do not dispute that the applicant notified the respondent that he intended to apply for accident benefits on May 23, 2024 – approximately four months after the accident – and submitted his completed OCF-1 on March 21, 2025 (a corrected version of the OCF-1 was provided on March 27, 2025) – approximately ten months following receipt of the accident benefits package.
16The question before me is whether the applicant provided a reasonable explanation for his delay. Based on the parties’ submissions and the evidence submitted, the facts are as follows.
17On January 26, 2024, the 23-year-old applicant was crossing the street at a four-way stop in a residential area when he and his friend were struck by a vehicle.
18The first attempt to communicate between the parties was made on May 13, 2025. On this day, the respondent contacted the applicant by telephone following receipt of the Self-Reporting Collision Report and Supplementary Statement Form of the accident. There was no answer, therefore the respondent left a voicemail message.
19On May 23, 2024, approximately four months after the accident and ten days following the respondent’s voicemail message, the applicant contacted the respondent and confirmed he had sustained injuries in the accident. The log note of the same date indicates that the applicant explained, in part, that upon impact, he struck his head on the vehicle’s hood and then hit his friend’s head. Despite a recommendation that the applicant attend the hospital, he did not attend right away. Instead, the following day, he was transported to the hospital by ambulance. He advised the respondent that he was told he had fluid built up in his head that was coming out of his nose. He was advised to take Tylenol and to rest. He claimed that he “was out” for approximately a month until the swelling went down.
20The log notes indicate that on May 29, 2024, the respondent contacted the applicant again by telephone and left a voicemail message noting that it would be sending him an accident benefit package. The package was sent on May 30, 2024 and contained the necessary application forms, a written explanation of the benefits available under the policy, information to assist him in applying for accident benefits, and details on the election of weekly benefits. The respondent followed up with the applicant on May 31, 2024 and left a voicemail message. Further attempts to contact the applicant were made on June 4, 2024 and July 8, 2024.
21It was not until December 13, 2024 – six and a half months after the accident benefits package was provided – that the applicant returned the respondent’s messages. The log notes indicates that the applicant advised “he was going through a lot and is finally ready to claim” accident benefits. The applicant was advised to provide the completed OCF-1 and that a message would be left with his adjuster to reach out to him Monday and advise of next steps.
22Approximately fifteen minutes later, the respondent contacted the applicant to update him that his adjuster was away but would return on Wednesday (rather than Monday as previously advised). The applicant advised the respondent that he had been in pain for months “whole body, head, back, legs, arms” and that he would like to go for treatment. It was at this time that the applicant advised the respondent that he no longer had the accident benefits package sent on May 30, 2024. The applicant was advised that his adjuster “could send him what he needs and explain next steps.” The applicant requested to speak to another adjuster so he could move forward with his claim and was advised that the respondent “would look into it”.
23A month and a half later (on January 28, 2025), the respondent attempted to contact the applicant by telephone, and again on February 10, 2025, with no success. A log note entry dated February 12, 2025 indicates that “as it was busy end of year, called back in late January and Feb and left a voice message to call back. We never heard back.”
24On March 21, 2025, the applicant retained legal representation and submitted his completed OCF-1.
25On March 26, 2025, the respondent denied the applicant’s claim on the grounds of section 32 of the Schedule and stating that it had been 420 days from the date of his accident. It requested of the applicant: a reasonable explanation for the late submission of the OCF-1; clinical notes and records of his family physician; an OHIP summary; a list of clinics attended since the accident along with medical records; and a copy of his driver’s license with current address.
26On March 27, 2025, the applicant’s legal representative provided the following explanation in a letter to the respondent:
…[the applicant] is a young man who, at the time of the accident, was not aware of his rights or the required procedures to access statutory accident benefits. Although he did promptly report the incident to your company, he did not receive sufficient guidance or clarity from the insurer as to the next steps required to initiate a claim. As a result, the completion and submission of the necessary forms – including the OCF-1 – was regrettably delayed beyond the one-year mark.
The delay was not due to any deliberate inaction but rather a consequence of his lack of understanding and reliance on the insurer to inform him of his entitlements and obligations. Once he became informed of his rights, he promptly took steps to pursue his claim under the [Schedule].
Given the circumstances and the fact that he continues to require treatment for accident-related injuries, we respectfully request that you exercise your discretion under the [Schedule} to allow the claim to proceed.
27The respondent submits that the applicant sustained injuries and intended to seek medical attention as early as January 29, 2024 when he reported the accident to the police but he delayed notifying the respondent for three months of his intention to apply for accident benefits. The respondent argues that the applicant did not provide notice of his intention as soon as practicable after the accident as required by section 32(1).
28The respondent further submits that upon receiving notice, it fulfilled its obligation by promptly sending the applicant an accident benefits package on May 30, 2024. In its letter, the respondent advised the applicant that he must submit an OCF-1 within 30 days of receiving the package. The applicant did not submit the completed OCF-1 until March 21, 2025, which was nearly fourteen months after the accident. The respondent submits that the applicant did not comply with the time limit for applying for accident benefits as per section 32(5) of the Schedule.
29Regarding the applicant’s explanation, the respondent submits that ignorance of the law is not a reasonable explanation and his second reason, that he did not receive sufficient guidance from the respondent, is neither credible nor reasonable. The respondent points to the accident benefits package sent which contained all the necessary forms and information to assist the applicant in applying for benefits. The respondent also made numerous attempts to contact the applicant by telephone between May 2024 and February 2025. It argues that due to the length of the delay, it has been deprived of the opportunity to obtain accurate information about the applicant’s injuries and functioning through contemporaneous medical assessments, resulting in prejudice.
30The applicant concedes that ignorance of the law alone is not sufficient. He submits that injuries sustained from the accident directly affected his cognitive functioning, memory and ability to promptly navigate complex procedural requirements. He acted diligently once he was able to, and any delay should be excused under the remedial framework of the Schedule. He argues he was not only physically injured but was also experiencing cognitive and psychological impairments directly related to the accident, on top of his pre-existing conditions. He submits that the evidence establishes that he acted diligently to the best of his ability, despite the accident’s impact on his cognition and mental health. He reported the accident, repeatedly sought help from the respondent, and ultimately retained a representative to ensure compliance.
31The applicant further submits that while the respondent provided the accident benefits package and left voicemail messages, this does not fulfill its duty which requires the respondent to provide information to assist in completing the application. He argues that a vulnerable, unrepresented pedestrian with a head injury needs more than passive attempts by the respondent; he requires active guidance. He submits that the respondent has not demonstrated any material prejudice as it was aware of the accident and injuries months earlier. The respondent had knowledge of the accident and the applicant’s injuries within months. Its ability to investigate was not impaired. The hardship to the applicant, if barred, is severe. The applicant argues that he provided a credible and corroborated explanation that satisfies both the subjective and objective components of the test.
32The thrust of the applicant’s written explanation to the respondent on March 27, 2025 is that he is young, was unaware of his rights or the process to receive accident benefits, and he “did not receive sufficient guidance or clarity from the insurer as to the next steps required to initiate a claim.” The parties concede, as supported in K.H., that ignorance of the law is not a reasonable explanation for the delay. Regarding his allegation that he did not receive sufficient guidance, the applicant states in his responding submissions that this includes “active guidance” but provides no further explanation of what constitutes “active guidance” or how such a requirement arises from the statutory language.
33I am also not persuaded by the applicant’s submission that over the months following the accident, the applicant made multiple calls to the respondent seeking updates and assistance, or that on more than one occasion, he was told that his adjuster was on vacation, or that he left messages but did not receive a call back. These allegations are not supported by the evidence.
34The log notes indicate the respondent first reached out to the applicant on May 13, 2024 and left him a voicemail message. The applicant returned the phone call on May 23, 2024 and advised the respondent that he had sustained injuries from the accident and intended to claim accident benefits. The respondent contacted the applicant on May 29, 2024 and left a voicemail message indicating that an accident benefits package would be provided to him. The package was mailed the following day with the necessary information to assist in completing his claim. Attempts were further made to speak to the applicant on May 31, 2024, June 4, 2024 and July 8, 2024.
35It was not until December 13, 2024 that the applicant contacted the respondent to advise he was ready to claim his accident benefits. Two calls occurred this day. During the first call, the applicant advised of his intent to claim his accident benefits and the respondent’s representative advised him that his adjuster would reach out to him on the following Monday to advise of next steps. The second call occurred fifteen minutes later where the respondent called the applicant to clarify that his adjuster was away and would contact him on the Wednesday upon his return. It was during this second call that the applicant advised the respondent he no longer had the accident benefits package and would like to speak to another adjuster to discuss next steps. The respondent advised it would look into it. It was not until January 28, 2025 that the respondent contacted the applicant, to no avail, and then again on February 10, 2025. There is no further entry indicating that the applicant returned these calls.
36The applicant’s explanation that he made multiple calls seeking updates and assistance is not supported by the evidence, nor is his explanation that he left messages but did not receive a call back. I acknowledge that the respondent did not return the applicant’s call made on December 13, 2024 until January 28, 2025 but this does not explain the delay of six and a half month from when he received his accident benefits package.
37In his responding submissions, the applicant submits that he suffered, in part, concussion-related symptoms and worsening psychological impairments. I infer from these submissions that the applicant contends that he was not able to fulfil the requirements of section 32 – or to use the language of section 32(1), it was not “practicable” for him to do so. In his submissions, the applicant adds that medical evidence of Dr. Little, the applicant’s family physician, confirms the applicant suffered, in part, concussion-related symptoms and worsening psychological impairments and he points to a medical opinion prepared by Dr. Little dated August 18, 2025 in support of his assertions. However, no medical documentation - including the specific opinions relied on by the applicant - were submitted to the Tribunal.
38In my view, it is not sufficient to allege concussion-related symptoms and worsening psychological impairments without medical documentation to support it. Submissions are not evidence. Without medical documentation to support that the applicant was not able to notify the respondent of his intention to seek accident benefits, or that he was incapable of completing his OCF-1 within the 30-day timeline, I find that the applicant has not satisfied his onus of providing a reasonable explanation for his delays pursuant to section 34.
39I find that the respondent satisfied its obligation pursuant to Hussein. It contacted the applicant following receipt of the Self-Reporting Collision Report and Supplementary Statement Form of the accident despite no prior notification received by the applicant. It followed up with the applicant, provided the accident benefits package, and left several voicemail messages that went unanswered. I acknowledge that on December 13, 2024, the applicant advised that he required a second copy of the accident benefits package and requested to speak to an adjuster. This request was not satisfied until over a month later however, two additional voicemail messages were left by the respondent that went unanswered. The applicant submits that the respondent had an obligation to provide “active guidance” but does not explain what further “active guidance” he required or why he did not return the respondent’s attempts to contact him.
40An 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 the respondent did not sustain any material prejudice as it was aware of the accident and injuries months earlier and therefore its ability to investigate was not impaired. I disagree. The respondent’s ability to investigate does not begin until the OCF-1 is submitted. In this case, the OCF-1 was only submitted on March 21, 2025, fourteen months following the accident.
41Taking into account the principles of K.H., I find that the applicant has not provided medical documentation to support that he was unable to fulfil the requirements of section 32, ignorance of his rights is not sufficient on its own, his allegations that the respondent did not return his calls are not credible, and the delay of fourteen months in submitting his completed OCF-1 is significant. His delays have caused prejudice to the respondent in fulfilling its obligations to investigate and assess his claim.
42For these reasons, I find that the applicant has not met his onus to establish a reasonable explanation for his delays.
Section 55
43Pursuant 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.
44As outlined above, I find that the applicant did not notify the respondent within the timelines prescribed by the Schedule, he did not submit an application for benefits within the timelines prescribed by the Schedule and he has not provided a reasonable explanation for the delays. Accordingly, I find that the applicant is statute-barred from proceeding with his application before the Tribunal.
ORDER
45The applicant is barred by section 55(1) from proceeding with his application before the Tribunal. The Tribunal shall vacate any date that has been scheduled for the substantive issues hearing.
Released: January 12, 2026
Trina Morissette
Vice-Chair