Licence Appeal Tribunal File Number: 25-010677/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:
Frank Mair
Applicant
and
Heartland Farm Mutual Inc.
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR:
Trina Morissette, Vice-Chair
APPEARANCES:
For the Applicant:
Shania Robinson, Counsel
For the Respondent:
Peter A.B. Durant, Counsel
Heard:
In writing
OVERVIEW
1Frank Mair, the applicant, was involved in an automobile accident on November 15, 2023, and sought benefits from Heartland Farm Mutual Inc., 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 preliminary issue to be decided is whether the applicant is barred from proceeding to a hearing of his application 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, pursuant to section 32(1) of the Schedule?
RESULT
3The respondent received notification of the accident pursuant to section 32(1).
4In the alternative, the applicant provided a reasonable explanation for his delay.
5The applicant is permitted to proceed with his application.
ANALYSIS
6On November 15, 2023, the applicant was involved in a single vehicle accident. Pursuant to the applicant’s submissions, he swerved up the curb and onto the median where he struck a street sign. On impact, the street sign fell on his vehicle and smashed the windshield.
7Section 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.
8Once 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.
9Section 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). 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.
10Additionally, 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.
11The respondent submits that although it received notification of the accident the following day (November 16, 2023) through receipt of an email from the Collision Reporting and Occurrence Management System (“CROMS”) of the Halton West Accident Support Services, the applicant did not notify it of the accident or of his intention to claim accident benefits until May 8, 2024, 175 days post-accident. The respondent argues that the statutory obligation to notify at section 32(1) is specific as to who shall give notice and to whom it must be provided. It argues that the applicant had the obligation to notify it directly of the accident and of his intention to apply for benefits. Here, the applicant notified his insurance broker, FENA Insurance (“FENA”), 23 days after the accident and did not report any injuries or any intention to apply for benefits. The applicant’s application should therefore be barred from proceeding.
12The applicant submits that, as per his evidence at an Examination Under Oath (“EUO”) on August 14, 2024, he notified his insurance broker, FENA, of the accident within 48 hours. Even if FENA did not relay the notification to the respondent – which he purports is an agent of the respondent – the applicant argues that the respondent received notification of the accident through the Motor Vehicle Accident Report (“MVA report”) it received from CROMS the following day. The applicant relies on Hussein and argues that having received notification of the accident, the respondent had a positive obligation to provide him with an accident benefits package at that time and to inquire into whether benefits would be sought. Pursuant to the respondent’s own log notes, it did not attempt to contact the applicant until March 7, 2024.
13In the alternative, the applicant submits that he provided a reasonable explanation for the delay in contacting the respondent. He points to a previous accident where he incurred injuries and which, within days of the subject accident, produced catastrophic designation (“CAT”) reports and a subsequent acknowledgement by the insurer that the applicant was CAT impaired. The applicant argues that the injuries sustained in this prior accident impeded his memory, concentration, and abilities to follow through with his statutory obligations within the timeframe of section 32(1).
14The respondent submits that the applicant’s explanation is neither credible nor worthy of belief. It argues that there is no corroborating evidence that the applicant contacted FENA to notify it of the accident within 48 hours, and, in any event, the broker is not the respondent and therefore not the insurer to which the accident should have been reported. It argues that Hussein is distinguishable based on the facts in this matter, and the applicant’s explanation regarding his CAT injuries was not offered by the applicant at his EUO but rather, it was his counsel’s explanation which it argues, is not evidence.
The respondent received notification of the accident pursuant to section 32(1)
15Based on the parties’ submissions and the evidence provided, the facts include the following.
16On November 16, 2023, the day following the accident, CROMS provided an email to the respondent advising it that an accident had occurred with one of its insured individuals. The email included attachments which it referred to as “invoices” and “scanned documents”, but these attached documents were not submitted to the Tribunal.
17On December 6, 2023, a “Claims Opening Notice” email was sent by the respondent to FENA that included the applicant’s name, address, the date of the accident and a short description (“collision with fixed object”). The email also included the name and contact information of the respondent’s adjuster.
18Despite the applicant’s evidence at his EUO that he contacted his broker within 48 hours of the accident, the evidence shows that it was on December 8, 2023 that the applicant contacted FENA and reported the accident. A note in the FENA file confirms that the applicant reported he hit “a median”, he paid for the repairs to his vehicle, the police attended the scene and the respondent “was trying to get a hold of him and he has been trying to call them back with no luck.”
19The adjuster’s log notes do not indicate any calls from the respondent to the applicant until March 7, 2024, where they show the respondent attempted to contact the applicant and left a voicemail. A second unsuccessful attempt was made on April 16, 2024. No details regarding what information, if any, is provided to the applicant via voicemail.
20Based on the above information, I note there is some confusion regarding attempts the parties made to contact each other prior to May 8, 2024 when the respondent acknowledges it was notified of the accident directly by the applicant. The respondent submits it made “numerous prior inquiries after receipt of the CROMS report”. As indicated above, the applicant reported to FENA that the respondent “was trying to get a hold of him” as early as December 8, 2023, however, there are no entries in the log notes of attempts to contact the applicant by the respondent until March 7, 2024.
21In my view and for the following reasons, the respondent received sufficient notice of the accident to satisfy section 32(1).
22First, the applicant received notice of the accident from CROMS the following day. The email included information pertaining to the applicant, the date of the accident, and some details surrounding the accident including that he had struck a street sign. In my view, this information was sufficient to trigger the respondent’s obligation pursuant to section 32(2) of the Schedule to inquire whether the applicant would be seeking accident benefits and to assist the applicant by providing information on how to apply for benefits.
23As per Hussein, “[c]onsumers who have motor vehicle accidents are in a vulnerable position, particularly in the period immediately following an accident” (at para. 38). I do not accept the respondent’s strict interpretation of section 32(1) that the responsibility is on the applicant, specifically, to contact the respondent, specifically, and notify it of the accident. This strict interpretation goes against the consumer protection mandate of the Schedule and the direction provided by the Divisional Court in Hussein. The respondent’s decision to rely on the applicant’s inaction to determine that no benefits will be claimed is also in contrast to its positive duty to inquire and inform as set out in Hussein.
24Moreover, I do not accept the respondent’s argument that the applicant’s notice to FENA, his broker, was insufficient. The respondent argues there is no evidence that FENA had authority to bind or accept notice on behalf of it and it relies on Ostenda v. Miranda, 2012 ONSC 7346. As evidenced by the Claims Opening Notice email from the respondent to FENA on December 6, 2023, the respondent was sharing information regarding the subject accident with the broker. In my view, this notice creates a sufficient nexus between the respondent and the broker where the notification by the applicant to FENA on December 8, 2023 was sufficient to qualify as notification of the accident to the respondent. At this time, the respondent should have followed through with its obligation to provide information to the applicant per section 32(2). I note that although this notification is outside of the seven-day notification period, December 8, 2023 is only 23 days post-accident which is significantly earlier than the 175 days the respondent alleges it received notification of the accident by the applicant.
25Essentially, I find that for an insurer to be aware that one of its insured was involved in an accident, to sit back and wait for the insured to contact it directly, and to ignore all other information it received, does not recognize or foster the reality that the Schedule is consumer protection legislation as stated in Hussein.
26I find that the respondent received sufficient notice of the accident pursuant to section 32(1) of the Schedule.
In the alternative, the applicant provided a reasonable explanation for his delay
27The respondent submits that the only explanation the applicant provided at his EUO for the delay in notifying it of the accident was that he reported it to FENA, his broker, within 48 hours of the accident. This, it argues, is not reasonable nor is it credible and/or worthy of belief based on the evidence in this matter. The respondent also submits that the applicant was represented by counsel for a prior accident at the time of the subject accident and therefore, any reliance on ignorance of the law would not constitute a reasonable explanation in these circumstances.
28In response, the applicant submits that on November 10, 2023, five days prior to the subject accident, an OCF-19 and corresponding CAT reports were prepared and submitted to the insurer in relation to his claim in his prior accident which supported that the applicant was found CAT impaired under Criterion 8. The applicant argues that the reports document his compromised memory, his inability to remember the timeline of events or to initiate simple tasks, his susceptibility to fatigue, associated isolation and activity avoidance. He argues that these marked impairments and limitations provide a reasonable explanation for the delay in personally reporting the accident to the respondent.
29The respondent submits that this explanation was provided by applicant’s counsel, not the applicant, and it points to the EUO where the applicant was given every opportunity to explain the delay. As this is his counsel’s explanation, the respondent argues it is not evidence and it also does not explain why the applicant was unable to organize himself enough to report an accident to his insurance company, yet, he was living alone, he was able to report the accident to his broker, he was able to file a police report, and he was able to coordinate the repair of his vehicle.
30As I have noted above, the evidence suggests that the applicant did not contact FENA until December 8, 2023, twenty-three days post-accident. Despite the respondent’s argument that the broker is not its agent, I have found that the notice provided to FENA was equivalent to providing the notice to the respondent directly.
31The applicant submitted section 25 CAT reports which corroborate that at the time of the subject accident, experts diagnosed him with somatic symptom disorder with pain and post-concussive symptoms, persistent, psychological factors affecting pain and post-concussive symptoms, post-traumatic stress disorder, and persistent depressive disorder, moderate. The applicant was found to have a marked impairment in the four domains of activities of daily living, social functioning, concentration, persistence and pace, and adaptation. Observations and findings made during these assessments include:
i. He has difficulties recalling timelines of events;
ii. Multiple and interacting mental and behavioural disorders result in pervasive impairment in his daily life;
iii. He was often unable to initiate tasks because of depression;
iv. He struggles with forgetfulness and has a history of leaving water running and burners on in his home;
v. Planning things he needs to do can lead to further deterioration;
vi. He requires support; and
vii. Conversations overwhelm him and cause him to disengage and isolate.
32I note that section 44 CAT reports prepared by the insurer in the context of the prior accident claim support the observations and findings of the section 25 CAT assessors. Based on these reports, the insurer designated the applicant CAT impaired.
33I find these reports compelling and I am persuaded that the applicant suffered significant impairments in a prior accident that can reasonably provide an explanation for any delay in notifying the respondent of the subject accident in this matter. The applicant’s impairments also explain why the applicant was a poor historian during his EUO, and more specifically why he testified he notified FENA two days following the accident when FENA’s records show he only did so on December 8, 2023.
34Pursuant to K.H. I must also balance the prejudice to the insurer, the hardship to the claimant, and whether it is equitable to relieve against the consequences of the failure to comply with the time limit. The respondent submits that it was deprived of the opportunity to investigate the circumstances and to conduct assessments, gather medical records, and, if necessary, conduct surveillance within the five months immediately following the incident. The applicant submits that the delay in notifying the respondent though its agent, FENA, was minimal. A decision to bar him from proceeding with his application would amount to significant hardship as this would drain his resources for treatment.
35Based on the evidence, the respondent received information regarding the accident as early as the following day. As noted above, I find the respondent received sufficient notification and it was incumbent on it to further inquire and assist pursuant to section 32(2) and Hussein. The respondent failed to do so. In my view, any lost opportunity the respondent had to obtain necessary information and medical records was caused by its own inaction. I find the hardship to the applicant far outweighs the prejudice to the respondent.
36Accordingly, I find that the applicant has a reasonable explanation for the delayed notice pursuant to section 34 of the Schedule. The applicant may proceed with his application.
ORDER
37For the reasons stated above, I find:
i. The respondent received notification of the accident pursuant to section 32(1);
ii. In the alternative, the applicant provided a reasonable explanation for his delay; and
iii. The applicant is permitted to proceed with his application.
Released: April 17, 2026
Trina Morissette
Vice-Chair