Citation: Adjei v. Aviva Insurance Company of Canada, 2026 ONLAT 25-010925/AABS - PI

Licence Appeal Tribunal File Number: 25-010925/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:

Leticia Adjei

Applicant

and

Aviva Insurance Company of Canada

Respondent

PRELIMINARY ISSUE DECISION AND ORDER

ADJUDICATOR:

Trina Morissette, Vice-Chair

APPEARANCES:

For the Applicant:

David Carranza, Paralegal

For the Respondent:

Justin Chan, Counsel

HEARD: In writing

OVERVIEW

1Leticia Adjei, the applicant, was involved in an automobile accident on March 10, 2024 and sought benefits from Aviva Insurance Company of Canada, 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 determined is whether the applicant is barred from proceeding with her claim for benefits because she failed to submit her application for benefits (OCF-1) within the time prescribed in the Schedule?

RESULT

3The applicant provided a reasonable explanation for her delay in submitting her OCF-1 and is not barred from proceeding with her application.

ANALYSIS

4Section 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.

5Once 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.

6Section 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 (“Horvath”) 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.

7Additionally, 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.

8On March 10, 2024, the applicant was the driver of a vehicle that collided with another vehicle while making a left turn. Following the collision, the parties exchanged information and attended the Collision Reporting Centre. Pursuant to the applicant’s Statutory Declaration, she did not attend the hospital but she did attend with her family physician who referred her to physiotherapy. She returned to work after the accident.

9At the time of the subject accident, the applicant was receiving accident benefits through the respondent in relation to a prior accident that occurred on March 10, 2023 (“the previous accident”) when she was rear-ended at a stop sign.

10The parties do not dispute that notification of the accident was provided as required by section 32(1). The parties also do not dispute that the applicant submitted her completed application (OCF-1) to the respondent on December 4, 2024, almost nine months post-accident. The issue before me is whether the applicant provided a reasonable explanation for the delay in submitting her application.

Background

11Based on the evidence submitted and the parties’ submissions, the facts in this matter include the following.

12In relation to the previous accident (March 10, 2023), the applicant submitted her completed OCF-1 to the respondent on March 27, 2023.

13Regarding the March 10, 2024 accident (“the subject accident”), the applicant properly notified the respondent and on March 12, 2024, the respondent’s adjuster reached out to the applicant for further information. During their conversation, the applicant was asked if she was injured as a result of the subject accident. She indicated that she was not. The respondent’s log notes indicate:

• NI Injuries? N

• TP Injuries? N

• Dashcam? N

14The parties concede that they never discussed the applicant’s health status again and the respondent did not provide the applicant with an accident benefits package following its interactions with her.

15On June 19, 2024, the applicant filed an application with the Tribunal regarding the previous accident. In relation to this application, and after attending a case conference in the matter, the applicant confirmed in writing on December 4, 2024, that she had not presented a claim for accident benefits in relation to the subject accident.

16On December 14, 2024, the applicant submitted her completed OCF-1 in relation to the subject accident.

17On June 26, 2025, the respondent requested an explanation for the applicant’s delay in submitting her application for the subject accident. In correspondence dated July 11, 2025, the applicant’s legal representative advised the respondent:

Further to your correspondence dated June 26, 2025, this is to inform that our client advised us of having reported the motor vehicle accident to your company but indicated that she did not receive an Accident Benefits package, so she was not sure whether to present a claim or not.

18On July 17, 2025, the applicant provided a signed Reciprocal Release Authorization, allowing for the respondent to access the materials for both accidents in the adjustment of both claims.

19The respondent submits that the applicant’s explanation is neither credible nor worthy of belief. The applicant advised the respondent’s adjuster on March 12, 2024 that she was not injured, therefore an accident benefits package was not provided based on her statement. The respondent relies on Rahman v. TTC Insurance Company Limited, 2025 CanLII 47336 (ON LAT) as well as Raveendran v. Coseco Insurance Company, 2023 CanLII 103805 (ON LAT) and argues that the applicant knew or ought to have been familiar with the process for submitting a claim because she had submitted a claim a year prior for her previous accident and she had experienced legal representation at the time of the subject accident. Furthermore, according to the log notes, the applicant corresponded with the adjuster on multiple occasions after the subject accident between March 13, 2024 and April 16, 2024 and not once did the applicant mention any injuries related to this accident.

20The applicant does not dispute that she advised the adjuster on March 12, 2024 that she was not injured in the subject accident but she argues that in many cases, the sequelae of a person’s injuries only appears a few days after an accident. The applicant submits that the respondent did not ask about her physical condition or whether she was experiencing any issues resulting from the accident following the initial conversation. She argues that the respondent failed to properly guide her through the application process and improperly interpreted her lack of immediate initiative as an intention not to claim benefits.

21The applicant relies on Hussein. She argues that the Schedule is consumer protection legislation and points to the Court’s finding which held that insurers should act on the assumption that the insured person wishes to apply for accident benefits and should comply with their obligations under section 32(2) by providing the necessary application forms and explanation of benefits available.

22The respondent also points to Hussein where the Court stated that if an insurer wishes to clarify whether the insured is interested in applying for accident benefits, it should ask whether the insured sustained any injuries. Here, the respondent argues it satisfied its obligation under section 32(2) during its initial phone call with the applicant when it asked whether she sustained any injuries. She responded ‘no’.

23The applicant also submits that through its conduct and communications, the respondent accepted the applicant’s application. She argues that the respondent never communicated any rejection of the application or any concern or reservation regarding the explanation she provided for her delay. She argues that its conduct reasonably led the applicant to believe that her explanation had been accepted in good faith.

24I do not find that the respondent’s conduct or communications after the applicant provided her explanation for the delay in submitting her application has any bearing on the issue currently before me. I am tasked with determining whether the applicant has provided a reasonable explanation for the delay pursuant to section 32(4). The respondent’s conduct as argued by the applicant, in these circumstances, is not relevant.

The applicant provided a reasonable explanation for her delay

25To the applicant, Hussein provides that an insurer can be presumed to know that if one of their insureds has an accident and is injured, they will want to make a claim for benefits. A reasonable insurer would assume that an insured person who has been in an accident intends to access all the benefits available to them under their policy. She submits that the respondent failed in its duties to provide the necessary information.

26To the respondent, Hussein distinguishes the difference between a scenario where an insured person advises the insurer that they have not suffered injuries, versus one where injuries were not addressed in the initial notice to the insurer. It highlights that in Hussein, the insured person never advised the insurer whether they sustained injuries in the accident and the insurer never inquired about the insured person’s injuries. It submits that the case at hand is different because the applicant relayed that she was uninjured in the accident.

27Ultimately, the issue before me is whether the Divisional Court in Hussein dismisses the respondent’s requirements of section 32(2) of the Schedule if it asks the applicant, at the time it is notified of the accident, whether she sustained any injuries due to the accident and the applicant responds ‘no’.

28Paragraph 40 of Hussein states:

In my view the notice requirement under the [Tribunal] was met when the Insured advised the Insurer one day after the accident that he had been in an accident. A reasonable insurer would assume that an insured who has been in an accident intends to access all the benefits available to them under their policy. If the insured has been injured in the accident, this will include accident benefits. If the Insurer in this case wished to clarify which specific benefits the Insured intended to access, the Insurer could have asked the Insured whether he sustained any injuries. As the Insurer chose not to ask any more questions, it should have acted on the assumption that the Insured would want to apply for accident benefits. At that point, the Insurer should have complied with its obligations under s.32(2) of the [Schedule], which included sending out the necessary application forms and an explanation of the benefits available. This is an interpretation that fosters the consumer protection purpose of the [Schedule]. [emphasis mine]

29I find Hussein does not support the respondent’s argument that the requirements of section 32(2) are no longer required if it asked the applicant two days following the accident whether she sustained any injuries, and the applicant responded ‘no’. The Court’s reference to asking an insured whether they sustained injuries per para. 40 of Hussein, in my view, was made by the Court in the context of clarifying which specific benefits are available. In my view, Hussein does not state that a respondent’s duty to provide the appropriate OCF-1 form, a written explanation of the benefits available, or information to assist the person in applying for benefits is dismissed if the applicant advises the respondent that she did not sustain injuries at the time of the initial notification.

30I find that, in these circumstances, speaking to the applicant once was insufficient to discharge the respondent’s obligation outlined in section 32(2) of the Schedule. Hussein provides that insurers must always consider that accident victims are in a vulnerable position, particularly in the aftermath of an accident. In this case, the respondent failed to appreciate that concept and never made any additional inquiries into whether the applicant was injured in the accident, nor did it provide her with an accident benefits package. Instead, it relied on a single statement provided two days following the accident while it is commonly accepted that injuries and their sequalae may not become apparent until days or weeks following an accident. Relying on a single statement is not keeping with the guidance in Hussein. To discharge its obligations under section 32(2), the respondent ought to have made additional inquiries into the applicant’s status. This could have been satisfied as simply as sending the accident benefits package to the applicant with the requisite information on how to claim benefits.

31The applicant does not dispute that she was aware of the accident benefits process due to her previous accident. The applicant knew to notify the respondent as per section 32(1), and she did. She also knew that the process requires the respondent to then provide an accident benefits package, which it did not. This resulted in the applicant assuming, although mistakenly, that an additional OCF-1 for the subject accident was unnecessary. I find the applicant’s explanation credible and worthy of belief in the circumstances.

32For the reasons noted above, I find that the respondent did not discharge its obligations under section 32(2), which in turn did not trigger the 30-day timeline.

33An 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.

34The respondent submits that the applicant continued to submit treatment plans relating to her previous accident instead of applying for accident benefits for the subject accident. As a result, the respondent has been deprived of the opportunity to conduct contemporaneous medical examinations to determine the contribution and causation of the second accident to the applicant’s injuries and condition. Accepting the applicant’s explanation as credible, worthy of belief and reasonable, it argues, would cause great prejudice to the respondent as it has been robbed of the opportunity to conduct timely investigations.

35The applicant submits that if the Tribunal decides that she is barred from proceeding with her application, she will suffer significant hardship by being denied access to a substantive hearing on her entitlement to medical/rehabilitation benefits, contrary to the remedial purpose of the Schedule.

36I find the prejudice sustained by the respondent was caused by the respondent’s own failure to provide the required information as per section 32(2). I also find that this prejudice is somewhat alleviated by the fact that the respondent is the insurer for the applicant’s claim for accident benefits in her previous accident and the applicant has provided a signed Reciprocal Release Authorization, allowing for the respondent to access the materials for both accidents in the adjustment of both claims. Although not ideal, the continuous adjusting of the accident benefits file from the previous accident could assist, in part, with identifying which injuries or conditions became present at the time, or were caused by, the subject accident.

37For these reasons, I find that the respondent did not discharge its obligations under section 32(2), which in turn did not trigger the 30-day timeline, and, in the alternative, I find that the applicant has provided a reasonable explanation for her delay in submitting her OCF-1. The applicant may proceed with her application. In my view, the balance of the matter favours the applicant to proceed with her application as she will still have the substantive burden of proving her entitlement to the benefits she claims.

ORDER

38For the above reasons, I find:

i. The applicant provided a reasonable explanation for her delay in submitting her OCF-1 and is not barred from proceeding with her application.

ii. The application shall proceed to a hearing on the substantive issues as previously scheduled.