Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-009833/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:
Xiaodong Xi
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Harouna Saley Sidibé
APPEARANCES:
For the Applicant: Ivy So, Paralegal
For the Respondent: Jennifer Griffiths, Counsel
HEARD: By way of written submissions
OVERVIEW
1Xiaodong Xi, the applicant, was involved in an automobile accident on August 15, 2021, 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, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2A case conference took place on November 27, 2024. The Case Conference Report and Order (“CCRO”), dated December 4, 2024, recorded that the applicant’s representative undertook to produce a Disability Certificate (OCF-3) in support of an Income Replacement Benefit (“IRB”) claim, failing which the IRB claim would be withdrawn. In his written submissions, the applicant withdrew the IRB claim and the physiotherapy services plan for $2,200.00 dated September 28, 2022. The issues remaining in dispute are listed below.
ISSUES
3The preliminary issue to be decided is:
i. Is the applicant barred from proceeding with their claim for benefits as they failed to submit the application for benefits (OCF-1) within the time prescribed in the Schedule in violation of s.32 of the Schedule?
4The substantive issues to be decided in the hearing are:
i. 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 (“MIG”)?
ii. Is the applicant entitled to $2,200.00 for physiotherapy services, proposed by HRC Consult & Rehab Centre in a treatment plan/OCF-23 (“plan”) dated August 11, 2022?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
5I address the preliminary issue first because it may be determinative of the application's outcome.
RESULT
6For the reasons that follow, I find that the applicant is barred from proceeding with his application for non‑compliance with s. 32 and the lack of a reasonable explanation under s. 34. Given this outcome, it is unnecessary to address the substantive issues.
PRELIMINARY ISSUES ANALYSIS
7I find that the applicant failed to comply with the notice and application timelines set out in s. 32 of the Schedule and has not provided a reasonable explanation for the non-compliance under s. 34.
8Section 32(1) requires an insured who intends to claim benefits to notify the insurer no later than the seventh day after the accident, or as soon as practicable thereafter. Under s. 32(2), upon receiving notice, the insurer must promptly provide the forms and information. Section 32(5) requires a completed, signed OCF‑1 within 30 days of receiving the forms. Section 34 provides that non‑compliance may be excused upon a reasonable explanation.
9The interpretation of “reasonable explanation” is guided by Horvath v. Allstate Company of Canada, 2003 ONFSCDRS 92 (“Horvath”) and was more recently reiterated in K.H. v. Northbridge General Insurance Company, 2019 CanLII 101613 (ON LAT) (“K.H.”). The guiding principles are summarized as follows:
- An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.
- The onus is on the insured person to establish a “reasonable explanation”.
- Ignorance of the law alone is not a “reasonable explanation”.
- 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.
- The lack of prejudice to the insurer does not make an explanation automatically reasonable.
- 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.
The Notice under s.32(1): seventh day or as soon as practicable
10The accident occurred on August 15, 2021.
11The insurer first learned of the applicant’s involvement in an accident on or about May 30, 2022, through an email from the applicant’s nephew reporting the applicant’s accident. The insurer sent the application package and followed up on June 16, 2022.
12An OCF‑23 dated June 3, 2022, was submitted on August 11, 2022.
13The OCF‑1 is dated June 23, 2022, but the insurer received it on September 7, 2022. The insurer then requested a reasonable explanation for the delay.
14In an Examination Under Oath (“EUO”) dated November 18, 2022, the applicant explained that he initially “did not feel that bad,” self‑medicated, and only later could not endure the symptoms. No further supporting documentation was filed to corroborate an inability to comply with the timelines.
15The applicant does not dispute that the insurer was first notified of the accident on May 30, 2022. From August 15, 2021, to approximately May 30, 2022, the insurer was delayed for about 9.5 months before receiving notice of the intent to claim benefits. On the evidence before me, I am not persuaded that this delay was as soon as practicable, and I find that the insurer has established that the applicant was non-compliant with s. 32(1).
16Against this factual background, I turn to whether the applicant has offered a reasonable explanation for non‑compliance.
17The EUO explanation that symptoms were initially mild, managed with self-medication, and later worsened does not credibly account for the entire non-notification period. The applicant stated he felt pain after the accident and that his son bought over-the-counter pain medication, but offered no detailed evidence of specific impairments or how symptoms worsened to prevent timely notice. His explanation was a general claim of continued pain medication use until the vehicle owner informed him about physiotherapy. He provided no medical records showing symptom progression, functional limitations, or medical documentation immediately post-collision. Without such evidence or specific details on the worsening pain, his account does not justify the delay in reporting. No persuasive evidence of an intervening event making notification impractical during the nine months has been presented.
18The applicant also cites language barriers and reliance on others. However, the nephew communicated with the insurer in May/June 2022, and the insurer offered assistance on June 16, 2022. There is no affidavit or other corroboration showing that language limitations or a lack of assistance prevented earlier notice, or that the applicant had been unable to obtain assistance from his nephew at an earlier date.
19Applying the Horvath framework, I find the applicant has not met the threshold requirement of providing a credible explanation for non‑compliance. The account offered at the EUO, namely that initially mild symptoms were self‑managed with over‑the‑counter medication and later worsened, was not supported by contemporaneous medical records, affidavits, or other objective evidence demonstrating either a progression of symptoms or functional limitations that would have impeded earlier notice. Absent such corroboration and given the extended nine‑month period of non‑notification, the explanation is not sufficiently “worthy of belief” to proceed to the reasonableness assessment.
20Having found that the applicant has not provided a credible explanation and is therefore non‑compliant with s. 32(1), it is unnecessary to conduct a separate analysis under s. 32(5). Any discussion that follows is in the alternative and does not affect the outcome.
SUBSTANTIVE ISSUES ANALYSIS
21In light of my findings on the preliminary issue, it is unnecessary to decide whether the applicant’s injuries fall within the MIG, whether the August 11, 2022, physiotherapy plan for $2,200 is payable, or whether interest is owing.
ORDER
22For the reasons stated above, I find the applicant is barred pursuant to s. 55(1) from proceeding for non‑compliance with s. 32, and for the lack of a reasonable explanation under s. 34. Given this outcome, it is unnecessary to address the substantive issues.
23The application is dismissed.
Released: March 18, 2026
Harouna Saley Sidibé
Adjudicator