Licence Appeal Tribunal File Number: 25-001038/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:
Gerald Goegan
Applicant
and
Gore Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Peter Denton, Counsel
For the Respondent:
Arthur Camporese, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Gerald Goegan, the applicant, was involved in an automobile accident on July 27, 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, Gore Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issue in dispute is:
i. Is the applicant barred from proceeding with his claim for benefits as he failed to submit his Application for Benefits (“OCF-1”) within the time prescribed in the Schedule?
RESULT
3The applicant is not barred from proceeding with his claim for Accident Benefits.
PROCEDURAL ISSUES
The Applicant’s Reply Submissions
4Following submission of the applicant’s Reply Submissions, the respondent filed a Notice of Motion on November 7, 2025, requesting an Order striking the applicant’s Reply Submissions or in the alternative seeking leave to rely upon its Sur-Reply. The Notice of Motion was scheduled to be heard at this written hearing.
5The respondent submits that the applicant’s Reply Submissions are not responsive to the respondent’s submissions and should have been raised in the applicant’s initial submissions. It argues that the applicant’s Reply Submissions are simply a reformulation of the applicant’s argument and any additional jurisprudence relied upon by the applicant in its Reply Submissions should have been raised and referred to in his initial submissions.
6The applicant submits that its Reply Submissions are proper. The applicant submits that it could not have reasonably anticipated that the respondent’s original reason for denying the claim was the delay in reporting the accident and not that the applicant had sufficient education to know that he needed to report the accident despite his vehicle not being involved and an accident report not provided. The applicant further submits that its reliance on case law in the Reply Submissions was directly in response to the respondent’s arguments regarding delay, unusual accident and levels of education.
7I agree that the purpose of Reply Submissions is for the party bearing the onus in the dispute to respond to any issues that were raised in the other party’s submissions which could not have been reasonably raised in initial submissions. The Reply is not an opportunity for the party to raise issues that should have been raised in initial submissions or to reformulate their argument.
8I find that that the respondent has not specifically identified what new arguments were made by the applicant in his Reply Submissions but claims that the Reply Submissions are a reformulation of the applicant’s arguments. Upon review of the applicant’s Reply submissions, I find that the applicant’s submissions are responsive to the respondent’s submission. I find that the applicant was rebutting various arguments made by the respondent. While the applicant refers to Moffat v. Aviva General Insurance, 2025 CanLII 25845 (ONLAT) and Moffat v. Aviva General Insurance, 2025 CanLII 69523 (ON LAT) (“Moffat”), both new decisions, in her Reply submissions, I find that this was in response to the multiple case cited by the respondent.
9I therefore do not agree to strike the applicant’s Reply Submissions on the basis that they contain new arguments and case law.
10With respect to the respondent’s alternative request to rely upon a Sur-Reply, I find that Sur-Replies are narrowly granted when new issues were raised in reply that could not be reasonably foreseeable and could not have been addressed in the initial submissions. The limit exists to prevent an endless back-and-forth between parties. In this case, I do not agree that the applicant raised new issues in his reply.
11However, in the interest of fairness to both parties, I have reviewed the respondent’s Sur-Reply which deals solely with the new decisions cited by the applicant in his Reply Submissions.
ANALYSIS
Law
12Section 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 that give rise to the entitlement to the benefit, or as soon as practicable after that day.
13Once an insurer receives notice of an applicant’s intention to apply for statutory accident benefits, pursuant to s. 32(2) of the Schedule, the insurer must provide the applicant with the appropriate OCF-1 forms, a written explanation of benefits available, information to assist the person in applying for benefits and information on the election relating to income replacement benefits, non-earner and caregiver benefits, if applicable. Pursuant to s. 32(5) of the Schedule, the applicant must then submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms.
14Section 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.
15The 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 (“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 explanation” 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 limits.
16Pursuant to section 55(1)1 of the Schedule, 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 has not submitted an application for the benefit within the times set out in the Schedule.
Background
17The applicant is a bailiff who was injured in a motor vehicle accident on July 27, 2023. The applicant submits that he was on foot, attempting to repossess a vehicle, when the assailant physically assaulted him by punching him and then dragging him with the vehicle he was operating. He claims to suffer injuries to his left shoulder and the right side of his neck as a result of the accident.
18The applicant submits that he first contacted his legal counsel on August 14, 2024, because he wished to sue the assailant for the assault. He then learned that he had access to accident benefits and retained his lawyer on August 22, 2024.
19The applicant subsequently submitted his OCF-1 on August 23, 2024. This was the first notice that the respondent received of the accident.
20By correspondence dated October 10, 2024, the respondent requested that the applicant provide written reasons for his delay in submitting his claim.
21By correspondence dated October 24, 2024, counsel for the applicant responded to the respondent’s request, advising of the explanation as follows:
I would like to clarify that Mr. Goegan was unaware of his rights regarding accident benefits until he retained our office on August 22, 2024.
22On November 20, 2024, the respondent denied the applicant’s claim as per s. 32 and s. 34 of the Schedule.
23The applicant then filed his Application with the Tribunal on January 28, 2025.
Parties’ Positions
24The applicant submits that he has provided a reasonable explanation for not applying for benefits within 7 days of the motor vehicle accident. He argues that he did not know he was entitled to Accident Benefits as he was unaware that the assault he was involved in constituted a motor vehicle accident until he spoke to a lawyer. He further submits that he was not provided with a motor vehicle accident report, does not believe that one exists, and he has been denied the police file as the criminal matter is still before the Courts. The applicant submits that he is credible, and the respondent has chosen not to cross-examine him on his Affidavit.
25The applicant submits that the assessment of reasonableness in balancing prejudice to the respondent and the hardship to him, favours him in establishing a reasonable explanation for the delay. The applicant submits that there is minimal prejudice to the respondent for this delay, as the matter is still before the Courts and the investigation is ongoing. He argues that he would suffer severe hardship by being denied entitlement to Accident Benefits based on his reduced ability to work and the treatment needed for his significant accident-related injuries.
26The applicant relies upon the Court of Appeal decision in Tomec v. Economical Mutual Insurance Co., 2019 ONCA 882, 148 O.R. (3d) 438 (“Tomec”), where the Court set out the overriding principle to be applied in interpreting the Schedule, at para. [42] as follows:
The SABS are remedial and constitute consumer protection legislation. As such, it is to be read in its entire context and in their ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature. The goal of the legislation is to reduce the economic dislocation and hardship of motor vehicle accident victims and as such, assumes an importance which is both pressing and substantial.
27The applicant submits that Tomec also states at para. 45, that faced with a choice between an interpretation of the statue “that furthers the public policy objectives underlying the SABS and one that undermines it, the only reasonable decision is to side with the former.”
28The applicant also relies upon the Division Court decision in Hussein v. Intact Insurance Company, 2025 ONSC 842 (“Hussein”), where the Court held that at para. [38],
Consumers who have motor vehicle accidents are in a vulnerable position, particularly in the period immediately following the accident and seven days is a very short notice period…The entitlement to damages for motor vehicle accidents in Ontario and the role of the SABS in that regime is not something that is fair to assume the average consumer would be familiar with. Insurance adjusters and agents, on the other hand, can be presumed to know that if one of their insureds has an accident and is injured in that accident, they will want to make a claim for accident benefits.
29The applicant further upon the Tribunal decision in Domingue v. Definity Insurance Company, 2025 CanLII 72394 (ON LAT) (“Domingue”), where the Tribunal found that the applicant had a reasonable explanation for failing to notify the respondent of the accident for 45 days. The Tribunal accepted the applicant’s explanation that he did not know that the incident involving an Uber vehicle qualified as a motor vehicle accident under the Schedule until he consulted with counsel.
30The respondent submits that the applicant has not provided a reasonable explanation for the delay in advising of his involvement in the subject accident. It argues that the only evidence filed by the applicant in support of his explanation is his Affidavit sworn on June 16, 2025, where he states he was “unaware” that he had access to accident benefits until he retained counsel almost 13 months post-accident.
31The respondent submits that as set out in Horvath, ignorance of the law alone is not a reasonable explanation for the purpose of entitlement to accident benefits. Similarly, ignorance of one’s rights is not a reasonable excuse. It argues that the applicant’s explanation that he was not aware of his rights or that he had access to accident benefits until he retained a lawyer is not sufficient. The respondent relies on several Tribunal decisions where similar explanations have been deemed insufficient on numerous occasions by the Tribunal. (See: Sala v. Aviva Insurance Company of Canada, 2025 CanLII 102219 (ON LAT); Hurley v. Co-Operators General Insurance Company, 2025 CanLII 15970 (ON LAT); and Mednowegan v. Definity Insurance Company, 2025 CanLII 78079 (ON LAT).)
32The respondent submits that the decision relied upon by the applicant in Domingue is clearly distinguishable from the facts herein. In Domingue, there was a delay of one and a half months in notifying the insurer, and in the interim, the applicant notified the wrong insurer. The respondent argues that the delay in the subject accident was greater than one year, namely 397 days, and ignorance of the law alone is not a reasonable explanation.
33The respondent submits that as a result of the applicant’s delay, it has been prejudiced in its ability to obtain contemporaneous medical information and conduct timely relevant investigations and assessments of the claim, as well as the investigation of priority and loss transfer.
34In reply, the applicant submits that the respondent has suffered no prejudice. He submits that since being notified of the claim more than a year ago, the respondent has chosen not to conduct an Examination Under Oath or any assessments of the applicant. He argues that the respondent has access to the contemporaneous medical records of the applicant, and the criminal matter is still before the Courts.
35In response to the decisions referenced by the respondent, the applicant relies upon the decisions in Moffat. The applicant did not notify the insurer of his intention to apply for accident benefits until almost a year later and explained that the delay was because it was not a conventional accident, it was not reported at a collision centre, and there was no information readily available regarding the accident. The Tribunal found that the applicant had provided a reasonable explanation for the delay in complying with the timeline set out in s. 32(1) of the Schedule pursuant to s. 34 of the Schedule, finding it was credible and worthy of belief and that a party might not realize that one can apply for accident benefits in the circumstances of that case, especially where the applicant did not have any experience with previous claimed accident benefits. The applicant submits that the same reasoning should be followed in the subject matter as he was involved in an unconventional accident and had no prior experience with accident benefits claims.
36The respondent in its Sur-Reply states that in the Moffat decisions, regarding the delay, the evidence supported that the applicant therein was (i) an unsophisticated party with a Grade 8 education, (ii) did not have a driver’s licence and automobile insurance, (iii) had not previously been involved in an accident and claimed accident benefits. The respondent submits that no such evidence exists in the Application herein.
A reasonable explanation was provided pursuant to s. 34 of the Schedule
37The parties agree that the applicant did not notify the respondent of his intention to apply for accident benefits within seven days after the circumstances arose that give rise to his entitlement to accident benefits as required by as required by s. 32(1) of the Schedule. Rather, the applicant did not notify the respondent of his intention to apply for accident benefits until August 23, 2024. The issue before me is whether the applicant has provided a “reasonable explanation” for the delay pursuant to s. 34 of the Schedule.
38While both parties have referred me to multiple Tribunal decisions, I am not bound by previous Tribunal decisions. I find that each of the fact scenarios in the decisions relied upon by the parties are unique and can be distinguished from the facts in this matter. I find that a determination of whether a reasonable explanation has been provided requires a case-by-case analysis based on the facts and an analysis of the principles in Horvath and K.H. An 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 limit.
39I find in assessing these principles, consideration must also be given to the principles set out in Tomec with respect to consumer protection, and Hussein where it must be recognized that consumers who have motor vehicle accidents are in a vulnerable position.
40The respondent takes issue with the applicant’s explanation for the delay that he was not aware of his rights or that he had access to accident benefits until he retained a lawyer. However, I accept the applicant’s evidence that this was the true reason why there was a delay in reporting the accident to the respondent. I agree with the applicant that this was not a typical motor vehicle accident as it involved an assault by a third party. While criminal charges were laid against the assailant, I accept the applicant’s evidence that he is not aware that a motor vehicle accident report was prepared or if one even exists. I further accept the applicant’s evidence that he was not familiar with the accident benefits process and therefore he did not realize until he consulted legal counsel that he had access to accident benefits.
41While I agree that ignorance of the law alone is not a reasonable explanation, the test of “reasonable explanation” is both a subjective and objective test that should take into account both the personal characteristics and the “reasonable person” standard. While the respondent argues that the applicant is a sophisticated party because he works as a Bailiff and has been the sole officer and director of his company, this does not mean that he is familiar with the accident benefit system and there is no evidence that he was previously involved in a motor vehicle accident and claimed accident benefits.
42I do agree that the respondent has been prejudiced by the delay because it was not aware of the applicant’s intention to seek accident benefits and could not assess him. While the delay has prevented the respondent from assessing the applicant’s medical records and sending him for assessments, the applicant’s medical records following the accident would be available to the respondent upon request. However, I find that in contrast, the applicant will face significant hardship if he is prevented from proceeding with his Application for Accident Benefits.
43Without addressing the merits of the case, as I do not have any medical evidence before me of the significance of the applicant’s injuries, in my view, the hardship to the applicant if he is prevented from proceeding with his Application for Accident Benefits, would be far greater than any prejudice faced by the respondent. I also agree with the applicant, that despite providing an Affidavit, the respondent chose not to conduct an Examination Under Oath to assess the reasonableness of the explanation or the applicant’s credibility. On a balance, I find it would be equitable to relieve against the consequences of the applicant’s non-compliance with s. 32(1) of the Schedule because I find that the applicant has provided a reasonable explanation for the delay under s. 34 of the Schedule. I find that the applicant has met his onus and may proceed with his application for accident benefits.
ORDER
44For the reasons outlined above, I find that the applicant is not barred from proceeding with his claim for Accident Benefits.
Released: May 7, 2026
Melanie Malach
Adjudicator