Citation: Gupan v. Definity Insurance Company, 2026 ONLAT 24-013880/AABS

Licence Appeal Tribunal File Number: 24-013880/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:

Roman Gupan

Applicant

and

Definity Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Julia Logoutova, Paralegal

For the Respondent:

Camilla Oblak, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Roman Gupan, the applicant, was involved in an automobile accident on September 14, 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.

PRELIMINARY ISSUES

2The preliminary issue to be decided is: Is the applicant barred from proceeding to a hearing as they 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?

SUBSTANTIVE ISSUES

3The substantive issues in dispute 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? Note: The parties agree the MIG limits have not been exhausted and their submission shall identify the amounts remaining.

ii. Is the applicant entitled to $2,200.00 for Physiotherapy services, proposed by 2430303 Ontario Inc. in a treatment plan/OCF-18 (“plan”) dated July 24, 2024?

iii. Is the applicant entitled to $1,293.80 for Physiotherapy services, proposed by 2430307 Ontario Ltd in a plan dated March 11, 2024?

iv. Is the applicant entitled to $2,300.00 for Psychological Assessment, proposed by 2430307 Ontario Ltd in a plan dated March 11, 2024?

v. Is the applicant entitled to $2,300.00 for Orthopedic Assessment, proposed by 2430307 Ontario Ltd in a plan dated April 17, 2024?

vi. Is the applicant entitled to $2,679.18 for Physiotherapy services, proposed by 2430307 Ontario Ltd in a plan dated June 7, 2024?

vii. Is the applicant entitled to $2,300.00 for Cost of Examinations, proposed by 2430307 Ontario Ltd in a plan dated June 7, 2024?

viii. Is the applicant entitled to $2,227.73 for Physiotherapy services, proposed by 2430303 Ontario Inc. in a plan dated November 5, 2024?

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

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

RESULT

4I find that the applicant is statute-barred from proceeding to the hearing on the substantive issues.

5The application is dismissed.

ANALYSIS

Law

6Section 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.

7Once 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 benefits and information on the election relating to the specified benefits, if applicable (s. 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.

8Section 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 more recently reiterated in K.H. vs Northbridge, 2019 CanLII 101613 (ON LAT). 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.

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.

9Pursuant to section 55(1)1, an insured person may not apply to the Tribunal if they have not notified the insurer of the circumstances giving rise to a benefit or have not applied for the benefit within the times set out in the Schedule.

Background and parties’ positions

10The applicant was involved in a motor vehicle accident on September 14, 2023 while driving as an Uber driver, carrying two passengers. He initially reported the property loss to Certas Home and Auto Insurance Company (“Certas”), who was the insurer for the applicant’s vehicle, and Certas paid the property damage claim. On January 25, 2024, the applicant submitted an Application for Accident Benefits (“OCF-1”) to the respondent, pursuant to the Uber fleet policy at the time of the accident.

11The applicant does not dispute that the respondent was first notified of the accident on January 25, 2024. However, he argues that he has a reasonable explanation for the more than four month delay. The applicant submits that: he suffers from a language barrier as a Ukrainian refugee who had arrived to Canada in March 2023; that he was unable to find a Ukrainian-speaking physician for a period of time after the accident; that he had reported the accident to Certas but that he was not provided with clear instructions as to which insurance company to apply to and that it is unclear as to why Certas did not initiate any communications with the respondent; and that he had applied for accident benefits after consulting with a paralegal in mid-January 2024.

12The applicant submits that this language barrier played a role in his communications with Certas and the respondent, and limited his ability to discuss the accident benefits process with the insurers, which lead to the delay in submitting his OCF-1. The applicant relies on the Divisional Court decision Hussein v. Intact Insurance Company, 2025 ONSC 842 to argue that claimants are in a vulnerable position post-accident, and that the Schedule is not a document that the average consumer would be familiar with.

13The respondent submits that the applicant notified it well-outside the timelines set out in s. 32(1) of the Schedule, and that he has not provided a reasonable explanation for the delay. It argues that the applicant handled his own property damage claim with Certas without a legal representative and was able to report the accident to police without delay. The respondent argues that the applicant’s argument, that he did not know his rights or was unable to navigate the accident benefits process due to a language barrier, is not a credible explanation, given his ability to successfully navigate the property damage claims process.

14The respondent further argues that the applicant has failed to provide the property damage files and adjuster’s log notes from Certas as ordered in the Case Conference Report and Order (“CCRO”). It submits that this information would have clarified when the applicant reported the accident to Certas, what he had been advised of in regard to the accident benefits process, whether he had reported any injuries at the time and whether he was able to navigate the property damage claims process despite the language barrier. The respondent requests that an adverse inference be drawn against the applicant for his failure to provide these highly relevant documents.

Was the applicant compliant with s. 32(1) or did he have a reasonable explanation for the delay?

15I find that the applicant was non-compliant with s. 32(1) of the Schedule, and did not provide a reasonable explanation for the delay.

16The applicant does not dispute that he first notified the respondent of his intention to pursue accident benefits on January 25, 2024, more than four months after the accident. I find that this is well-outside the time limit stipulated in s. 32(1) of the Schedule. Although the applicant cites the Divisional Court decision Hussein to argue that it is sufficient to notify an insurer of the accident, and that an insurer is then obliged to inquire whether the claimant sustained any injuries and send out the necessary application forms, I agree with the respondent that Hussein is distinguishable from the present case. In this matter, the applicant did not report property damage to the respondent, but to a different insurer, Certas. As such, the respondent could not have inquired as to whether the applicant had sustained injuries in the accident or sent the necessary application forms, as it had not been informed of the accident until more than four months later. Accordingly, I find that the applicant was not compliant with s. 32(1) of the Schedule.

17I further find that the applicant has not provided a reasonable explanation for the delay pursuant to s. 34 of the Schedule. While the applicant argues that he suffers from a language barrier and that he was unaware of the accident benefits process, the respondent has cited a number of Tribunal decisions which have held that ignorance of the law is not a reasonable excuse, and that in terms of a language barrier a claimant must clarify how the barrier was prohibitive, see: Hijazi v. Economical Insurance, 2024 CanLII 28893 (ON LAT), Moustafa v. The Dominion of Canada General Insurance Company, 2024 CanLII 38464 (ON LAT), Kasbar v. Travelers Insurance, 2021 CanLII 30412 (ON LAT), Ozdemir v. Economical Mutual Insurance Company, 2024 CanLII 13093 (ON LAT). I agree with the respondent that despite the language barrier and lack of legal representation, the applicant appears to have been able to successfully navigate the property damage process with Certas. The applicant has not explained why he was able to complete the property damage claim process, but was unable to initiate the accident benefits process.

18I note the respondent’s submissions that the applicant has not produced records that had been ordered at the case conference, including the Certas property damage files and adjuster’s log notes, which would been highly relevant to the issue at hand. The applicant further did not provide reply submissions to address the issue of the failure to provide the Certas files. These documents could have clarified when he had informed Certas of the accident, what he had reported in terms of injuries, what he had been advised of in regard to the accident benefits process, and whether he was able to navigate the property damage claims process despite the language barrier. Given the applicant’s failure to produce this evidence or to address the lack of production, I infer that these documents would have been unfavourable to the applicant’s position.

19For the reasons set out above, I find that the applicant has not provided a reasonable explanation for the delay pursuant to section 34. Therefore, in accordance with section 55(1)1, I find that the applicant is barred from proceeding with the substantive issues in dispute.

ORDER

20The applicant is barred from proceeding with the substantive issues in dispute pursuant to section 55(1) of the Schedule for failure to comply with the time limits set out in section 32(1).

21The application is dismissed.