Citation: Sahib v. Definity Insurance Company, 2026 ONLAT 25-008508/AABS - PI

Licence Appeal Tribunal File Number: 25-008508/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:

Mohammed Sahib

Applicant

and

Definity Insurance Company

Respondent

PRELIMINARY ISSUE DECISION AND ORDER

ADJUDICATOR:

Trina Morissette, Vice-Chair

APPEARANCES:

For the Applicant:

Rebbecca Phillips, Counsel

For the Respondent:

Nicholas Maida, Counsel

HEARD: In writing

OVERVIEW

1Mohammed Sahib, the applicant, was involved in an automobile accident on March 21, 2023, and sought benefits from Definity 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 ISSUE IN DISPUTE

2The Case Conference Report and Order (“CCRO”) dated October 22, 2025 identifies the preliminary issue being:

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?

3In its initial submissions on this preliminary issue, the respondent clarified its position that it does not dispute it was notified of the accident within the statutory timeframe. Rather, the preliminary issue in dispute is actually:

i. 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?

4In his responding submissions, the applicant submits that the respondent failed to bring a motion or seek leave of the Tribunal to add or modify the preliminary issue. He argues that the respondent should therefore not be permitted to pursue the issue of whether the applicant did not submit his application in compliance with section 32(5). He requests that the Tribunal find that he has satisfied his obligation to notify the respondent pursuant to section 32(1) and allow for his application to proceed.

5Pursuant to Rule 20.4 of the Licence Appeal Tribunal Rules, 2023 (“the Rules”), any preliminary issue a party intends to raise must be included in their case conference summary. The main purpose of Rule 20.4 is to ensure procedural fairness for the party responding to the preliminary issue.

6The 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.

7Although I agree with the applicant that the respondent failed to bring a motion to amend the preliminary issue in dispute, the applicant has not shown that failing to do so has caused him any prejudice. From the documentation filed with the Tribunal on this preliminary issue hearing – particularly the respondent’s denial dated July 8, 2024 – the applicant was aware that the respondent’s reason for the denial was partly due to his failure to submit his application within the timeframe stipulated at section 32(5) of the Schedule.

8As such, I find that the applicant was provided with sufficient notice of the change to the preliminary issue and has had the opportunity to present his case fully and fairly and I note that the applicant’s responding submissions on the preliminary issue address the issue of the delay in submitting his completed application.

9The preliminary issue to determine in this matter is therefore whether the applicant is 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

10The applicant is permitted to proceed with his application.

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.

14Pursuant to the applicant’s Statutory Declaration dated October 1, 2024, on March 21, 2023, he was driving with a passenger. As he was preparing to turn left, another vehicle ran a red light and struck the rear back end of his vehicle on the driver’s side rear left tire. No ambulance attended the scene. The applicant submits he experienced pain in his left shoulder, lower back and neck. He was diagnosed with a concussion, and experiences headaches with shooting pain on the left side of his face, increased irritability, a change in appetite and driving anxiety.

15The respondent does not dispute that it received notification of the accident pursuant to section 32(1) of the Schedule. However, the respondent submits that the applicant submitted his application for accident benefits on May 14, 2024, eleven months and four days after the applicant was provided with the accident benefits package. The respondent submits the applicant has not provided a reasonable explanation for his delay and as such, he should be barred from pursuing his application.

16The applicant submits that the reason for his delay in submitting his completed OCF-1 is because he had difficulty understanding the forms due to his concussion symptoms and he had received no assistance from the respondent to complete them. The applicant argues that the respondent did not comply with its obligations at section 32(2) of the Schedule nor did it attempt to contact him after sending the accident benefits package. Instead, the applicant submits that the respondent inappropriately relied on the applicant’s inaction knowing he was a vulnerable accident victim.

17The respondent submits that there is no medical evidence to support the applicant’s argument that he could not understand the forms due to his symptoms or that he could not submit the OCF-1 for 12 months after receipt of the accident benefits package. The respondent points to the explanation for delay the applicant provided to its adjuster on May 16, 2024, where the applicant advised the respondent that he thought he would get better, he tried to self medicate, but his headaches kept persisting. The respondent argues that the evidence shows he was well-aware of his injuries immediately after the accident and was able to report same to his doctor.

18Of note, although the respondent no longer disputes that it received notice of the applicant’s intent to seek accident benefits (section 32(1)), it remains unclear when, how or who notified the respondent. The parties did not address this in their submissions and the adjusters’ log notes submitted only show action on this claim as of May 9, 2023, one and a half months following the accident. The respondent did not provide information or an explanation for the lack of action before May 9, 2023.

19The initial log notes do not provide much detail either. They indicate that on May 9, 2023, the respondent contacted the applicant by telephone: “Call out customer. No answer – left vm.” A second call was placed on May 11, 2023: “Call out customer. No answer, left vm.” A second note of May 11, 2023 indicates: “App Package. Mailed to customer.”

20A year later, on May 14, 2024, through his counsel at the time, the applicant submitted his application for accident benefits. The correspondence states:

Please find attached [the applicant’s] completed Application for Accident Benefits (OCF-1), dated May 14, 2024. [The applicant] explained to me that he had difficulty understanding the forms due to his concussion symptoms and was not offered any assistance from his insurance company to complete them. This is the reason for the delay in submitting the application.

Please note, I am sending this to you as a courtesy for [the applicant], but we have not been formally retained. Please direct any further correspondence to him.

21In a log note dated May 16, 2024, the respondent spoke to the applicant by telephone. It confirmed receipt of the OCF-1, obtained some medical information from the applicant, advised the applicant that he must re-submit his application (and older version of the OCF-1 form was used by the applicant) as well as complete a statutory declaration to explain why he delayed submitting his application until now. The log note also contains the following information obtained by the applicant: “claimant said the reason for delay was because he thought he would get better, tried to self medicate didn’t think it was a big deal, but his headaches kept persisting and affecting his daily life.”

22On July 8, 2024, the respondent sent a denial of the claim to the applicant based on his non-compliance with section 33 requests and his failure to provide a reasonable explanation for the delay in submitting his application pursuant to section 32(5).

23In a log note dated August 30, 2024, it would appear that the applicant made a complaint to the Ombudsman’s office regarding the respondent’s denial. The notes indicate that the applicant was looking to speak with a supervisor about his denied claim and his post-concussive symptoms that have been ongoing for over a year. The note also indicates that the respondent followed up with the applicant by telephone and explained that the information requests (section 33 requests) were typical documents required to help assess the claim. The applicant responded that he understood and would speak with his doctor about obtaining the documents. At this point, the applicant confirmed he retained legal representation and therefore, the respondent advised him they would be communicating directly with his legal representative.

24In an email from the applicant’s legal representative to the respondent dated October 2, 2024, the respondent was advised that:

Further to our prior email exchange, I have been advised by [the applicant] that he was contacted by [a representative] from [the respondent’s] Ombusdman office and advised that: if he provided the required information as requested by the insurer the claim could be reevaluated.

The email also included the applicant’s clinical notes and records and his statutory declaration.

25On November 7, 2024, the respondent confirmed through correspondence that it was denying the applicant’s claim on the same basis as its denial of July 8, 2024.

26The applicant relies on Hussein v. Intact Insurance Company, 2025 ONSC 842 (“Hussein”) and submits that the respondent did not meet its obligations under section 32(2) which requires it to assist him with his application for benefits. He argues that the respondent cannot simply rely on the applicant’s inaction particularly since he was in a vulnerable state following the accident, having suffered from a concussion, and was experiencing memory issues and blurred vision.

27The respondent submits that there is no evidence to indicate that the applicant’s symptoms would have prevented him from submitted the OCF-1 after receipt of the accident benefits package. The respondent points to the applicant’s evidence that he was able to return to work by April 3, 2023 as a supervisor and mechanic where he worked 40 hours per week with no work limitations. The respondent also argues that the applicant was able to engage in a variety of activities such as seeking treatment.

28On this point, I am not persuaded that the applicant’s symptoms would have prevented him from submitting his application. I note that the applicant’s references to documents in his submissions did not correspond to the tabs or page numbers cited which made it challenging to locate the document referenced in support of his arguments. Attempts were made to locate the documents specified, and although the medical documentation confirms the applicant sustained a concussion and documents the complaints stated by the applicant, I was unable to find documentation confirming that his concussion prevented him from performing activities such as completing his application. Rather, the evidence before me shows that the applicant returned to work on a full-time basis, with no work limitations as of April 3, 2023, and attended all scheduled medical appointments.

29That being said, I agree with the applicant and find that the respondent failed to meet its obligations pursuant to section 32(2) of the Schedule and its positive duty to assist as per Hussein.

30Hussein states that 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.

31The respondent modified its preliminary issue at this hearing and states that it no longer denies that the applicant notified it that he intended to seek accident benefits. Yet, the respondent points to the explanation the applicant provided to its adjuster (as per the May 16, 2024 log note) where he explained he did not submit an application “because he thought he would get better, tried to self medicate didn’t think it was a big deal.” I find the respondent’s position to be contradictory. The respondent relies on the applicant’s statement that he did not intend to seek accident benefits but yet, it claims the applicant notified it that he intended to seek accident benefits.

32As noted above, it remains unclear who notified the respondent, through what means, and at what time, and it is also unclear why the respondent waited until May 9, 2023 to attempt to contact the applicant to discuss his entitlement to accident benefits.

33Furthermore, the two attempts made to contact the applicant on May 9, 2023 and May 11, 2023 do not provide sufficient information. There is no information that confirms the respondent had the correct telephone number, that the respondent identified itself on the voicemail message, explained the reason for its call, or even whether it advised the applicant that he could be eligible for accident benefits. There is also no indication that the applicant was advised in the voicemail message that an accident benefits package would be mailed to him.

34I am also not persuaded that the applicant received the accident benefits package mailed on May 11, 2024. The address used for the mailing of the package on May 11, 2023 does not include the applicant’s unit number as evidenced in the mailing address used for the respondent’s denial of November 7, 2024. I also note that upon receipt of the OCF-1 on May 14, 2024, the respondent asked the applicant to resubmit his OCF-1 using the proper updated OCF-1 form. In my view, this also suggests that the applicant did not receive the forms mailed to him on May 11, 2023.

35I find that much of the respondent’s evidence in this matter is unpersuasive and confusing with respect to the notification and its obligations pursuant to section 32(2). I accept that the respondent was notified at some point that the applicant was in an accident on March 21, 2023. Although the evidence surrounding notification that the applicant sustained injuries and would be seeking accident benefits is unclear, since the respondent does not dispute it received notification, I accept that section 32(1) of the Schedule was satisfied.

36Pursuant to section 32(2) of the Schedule, once an insurer receives notice of an applicant’s intention to apply for statutory accident benefits, it 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. Based on the information provided, I find that the respondent failed to take reasonable means to ensure it did so.

37I do not find that the two voicemails allegedly left with the applicant on May 9, 2023 and May 11, 2023 were sufficient to satisfy the respondent’s positive duty pursuant to Hussein and I am not persuaded that the applicant was aware of, or received, the accident benefits package allegedly mailed to him on May 11, 2023.

38I therefore find that where the applicant explained he did not submit his application within the 30-day timeframe of section 32(5) because “he was not offered any assistance from [his] insurance company” is a reasonable explanation. Also, having failed in its section 32(2) obligations, I find that the 30-day timeline for the applicant to submit his completed OCF-1 was never triggered and therefore the applicant did not fail to submit his application within the section 32(5) timeframe.

39Accordingly, I find that the applicant has a reasonable explanation for the delayed submission of his application, pursuant to section 34 of the Schedule. The applicant is not disentitled from receiving benefits and may proceed with his application.

ORDER

40The applicant may proceed with his application before the Tribunal.