Licence Appeal Tribunal File Number: 25-009743/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:
Hamdi Berro
Applicant
and
Definity Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Ognjen Miketic, Counsel
For the Respondent:
Monika Korona, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Hamdi Berro, the applicant, was involved in an automobile accident on April 10, 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 ISSUE IN DISPUTE
2The 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?
RESULT
3The applicant is not statute-barred from proceeding with his application before the Tribunal.
Background
4On April 10, 2023, the applicant was involved in a motor vehicle accident, and he notified the respondent by telephone on April 14, 2023 that he was involved in the accident. There is no dispute that the respondent received notice within seven days after the accident that the applicant was involved in the accident. It is unclear, however, whether the applicant agreed or understood that the respondent would send the application for accident benefits package by email, or how the applicant would complete the forms to return to the respondent. Subsequently, the respondent received the OCF-1, on June 28, 2024, which is beyond the time prescribed by s. 32(1) of the Schedule. At the case conference, the respondent raised a preliminary issue that the applicant is barred from proceeding with his claim because he did not comply with the timelines set out under s. 32(1) of the Schedule.
5However, s. 34 of the Schedule provides that the applicant’s failure to comply with the time limit in s. 32 does not automatically disentitle him to benefits as long as he has a reasonable explanation for the delay.
The Law
6Section 32(1) of the Schedule requires an insured person to inform an insurer of their intention to claim accident benefits within seven days of the accident, or as soon as practicable after.
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 specified benefits, if available (s.32(2)). Pursuant to s.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 states that if the insured person does not comply with the time limits prescribed under Part VIII of the Schedule, the insured person may still be entitled to benefits if they have a reasonable explanation for the delay.
9Section 55(1)1 of the Schedule provides that an insured person shall 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.
10The 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. v. Northbridge, 2019 CanLII 101613 (ON LAT). 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.
As 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.
ANALYSIS
Delivery of the application for accident benefits to the applicant by email
11I find that the respondent has failed to prove on a balance of probabilities that it delivered an application for accident benefits to the applicant to a valid email address on April 14, 2023, or that the applicant agreed to receive the documents by email in accordance with s. 64 of the Schedule. I also find that the respondent has not established that it contacted the applicant on April 14, 2023, and explained his right and the process to claim accident benefits or confirmed that he understood that he must return a completed OCF-1 within 30 days.
12Section 64(2)(e) provides that “any document, including a notice in writing, required or permitted under this Regulation to be given to a person may be delivered, by electronic means, if the intended recipient of the document consents to delivery by electronic means”.
13The respondent submits that the applicant reported his injuries to the respondent on April 14, 2023. Although the respondent submits that the applicant agreed to receive communications by email, it does not provide confirmation that the applicant agreed to obtain the application for accident benefits including all the OCF forms to be completed by email. In addition, the respondent does not explain to whom the applicant reported the accident on April 14, 2023, or why the respondent did not speak to the applicant about his right and the process to claim accident benefits when he reported the accident.
14The respondent submits that the applicant was aware of his rights to apply for accident benefits and the process for same. The respondent does not indicate whether there was a language barrier with the applicant, or exactly what explanation he received about his rights, or what assistance he received in the process to claim accident benefits. I find that the respondent has not pointed me to any evidence regarding the substance of the conversation with the applicant on April 14, 2023, or whether he understood the substance of the conversation.
15I reviewed the log note dated April 14, 2023, by the adjuster, Maria Pilar Hechavarria which indicates the telephone call between the respondent and the applicant on April 14, 2023 was recorded and the applicant was confused in answering some questions. The log note indicates that the applicant advised the respondent that he is the brother of it’s insured. The log note also indicates that the respondent told the applicant that it will refer his claim to a preferred provider network (“PPN”) and they will call him to set up an appointment to assist him in completing the forms. The respondent further submits that it followed up with the applicant on June 1, 2023 and June 9, 2023 by email and telephone, however, the respondent does not mention whether the appointment was made with the PPN to assist the applicant in completing the application forms.
16The respondent submits that on April 14, 2023, it provided an application for accident benefits to the applicant by email however, there is no indication that the applicant agreed to receive the documents by email, in accordance with s. 64 or whether he received the package. The respondent submits that the applicant failed to submit an OCF-1 form until June 28, 2024, which was 431 days after the April 10, 2023 accident. On July 10, 2024, after receiving the OCF-1, the respondent requested a reasonable explanation, a completed statutory declaration, and other documents pursuant to s. 33 of the Schedule.
17The respondent relies on an email correspondence to the applicant on April 14, 2023 with several attachments, including summary of basic accident benefits; insurance fraud; application for accident benefits (“OCF-1”); employer’s confirmation of income (“OCF-2”); disability certificate (“OCF-3”); authorization to release medical information (“OCF-5”). The respondent stated in the email that the applicant may contact the sender or visit the website at: https//www.fsrao.ca/consumers/auto-insurance, to learn about his right to claim accident benefits.
18In its reply submissions, the respondent argues that it is not required to ensure that the applicant received the application forms, nor that he was able to access the forms. The respondent argues that it discharged its obligations by simply attaching the application package to an email. The respondent further submits that on June 9, 2023, the applicant confirmed he received the application package and that he can complete it on his computer.
19The applicant submits that since his brother was hospitalized after the accident he was unable to seek legal advice or medical attention for his accident-related injuries due to caregiving and family obligations.
20I find that the respondent’s April 14, 2023 email does not indicate that it explained the process to the applicant of how the forms are to be completed, or the attachment which explains his right to apply for accident benefits. In addition, since the email invites the applicant to contact the sender to explain his right to claim accident benefits. Therefore, I find that the respondent did not explain these rights to the applicant if there was a conversation with him on April 14, 2023. I find that the respondent has not explained whether it provided an explanation to the applicant to ascertain whether he accepted the documents by email in accordance with s. 64 of the Schedule, or whether he understood the application process.
21Further, I find that although the respondent sent a follow up letter dated June 1, 2023 to the applicant by regular mail, it did not enclose hard copies of the application for accident benefits or a summary of benefits. I find that the respondent has not established that it explained the application process to the applicant, nor did it confirm that the applicant agreed to receive the application forms by email. I disagree with the respondent that it has met its onus by establishing that the applicant received the application package by email. The respondent did not ascertain whether the applicant had the means to access the documents for his employer and his doctor to complete.
22In addition, I am persuaded by the fact that the respondent acknowledged in its letters dated July 10, 2024 and November 26, 2025 that the applicant may need hard copies to complete a statutory declaration and authorization forms, and it also included a summary of benefits explaining what is included in claims for accident benefits.
23I note that the only document with the applicant’s email address is the application to the Tribunal which is different from the email address used by the respondent in the April 14, 2023 email. I am persuaded by the evidence that the Case Conference Report and Order (“CCRO”) dated December 4, 2025 indicates that the applicant speaks the Arabic language and he requires an interpreter, and he may not have fully understood the conversation with the respondent on April 14, 2023.
24The first guiding principle in Horvath sets out that an explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed. I find that the applicant submits that he did not have access to the application for accident benefits or instructions on how to complete the forms from the respondent, and the respondent had notice of the applicant’s claim within one week of the accident. I find that although the respondent relies on the April 14, 2023 email, there is no explanation how they obtained this email address, whether the applicant agreed to receive documents at this address, or whether the respondent had a conversation with the applicant either before or after the email was sent to explain how he will access and complete the documents. I find that the respondent had the opportunity to obtain information about the applicant’s involvement in the accident and reach out to him to provide him with an application by regular mail. The explanation is clearly credible and worthy of belief as the applicant does not acknowledge a conversation with the respondent or receipt of the application package. Although ignorance of the law is not reasonable, there is evidence that the applicant did not fully understand details of the conversation with the respondent on April 14, 2023, and his family emergency prevented him from seeking medical attention with a treating facility with some familiarity with the process to provide assistance with completion of the OCF forms.
25I find that the respondent has not established that it complied with s. 32(2) of the Schedule in providing an application package to the applicant with an explanation of his right and the process to apply for accident benefits.
The applicant has established a reasonable explanation for the delay
26I find that the applicant has established a reasonable explanation for the delay, because the respondent has not provided sufficient evidence of a conversation with the applicant on April 14, 2023, given the fact that he requires an Arabic interpreter and the lack of evidence that he agreed to receive an application package by email, or whether he received and accessed the application.
27The applicant submits that he was unable to access or complete the application for accident benefits without assistance. The applicant submits that since his brother was hospitalized for three months after the accident, he experienced unexpected caregiving and family responsibilities. The applicant further submits that he did not attend a clinic for treatment immediately after the accident. I find that the applicant’s explanation is credible, and it explains the reason the PPN did not have an opportunity to assist him in completing the forms.
28The respondent submits that it has suffered prejudice by the delay since it has missed the opportunity to obtain contemporaneous medical documentation from the applicant or to investigate and assess the applicant’s claim. I find there is limited prejudice to the respondent, and there is significant hardship caused by denying the applicant’s access to potential claims under the Schedule. I find it is equitable to relieve against the consequences of the failure to comply with the time limit. I find it is reasonable to allow the applicant to proceed with his claim.
29I find that the applicant provided a reasonable explanation for delay under s. 34 and he may proceed with his claim at the Tribunal because the respondent has not demonstrated that it satisfied its obligations under s. 32(2) of the Schedule.
ORDER
30The applicant may proceed with his application.
Released: May 8, 2026
Lisa Holland
Adjudicator