Quader v. Definity Insurance Company, 2026 CanLII 48389

Citation: Quader v. Definity Insurance Company 2026 ONLAT 25-010812/AABS-PI

Licence Appeal Tribunal File Number: 25-010812/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:

Mohammad Abdul Quader

Applicant

and

Definity Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Tami Cogan

APPEARANCES:

For the Applicant:

Jeremy Magence, Counsel

For the Respondent:

Nicholas Maida, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Mohammad Abdul Quader, the applicant, was involved in an automobile accident on May 23, 2024, 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 (“Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided is:

1. 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 statute-barred from proceeding with his application.

ANALYSIS

Law

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, 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 application 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.

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, 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.

Parties Positions and Background

7The respondent submits that the accident occurred on May 23, 2024, and the OCF-1 was not received until September 4, 2024. The applicant has not provided a reasonable explanation for the delay; therefore, he is barred from proceeding with his application pursuant to s. 55 of the Schedule.

8The applicant submits that the respondent extended or waived the time for the applicant to submit his OCF-1, and further, the applicant has provided a reasonable explanation for his delay in submitting the OCF-1.

9The parties largely agree that the applicant was contacted by a claims adjuster via telephone on May 31, 2024. In email correspondence sent on June 3, 2024, the applicant was provided with the application package. The parties also agree that the OCF-1 was submitted on September 4, 2024, more than three months after the accident.

10In the application package, the applicant was provided the OCF-1 and OCF-3, and was informed “[i]f you want to make a claim for Accident Benefits, we need you to fill out and return the following forms by July 3, 2024.” He was further advised that “[s]ending the forms in after 7/3/2024 will delay your access to benefits and may jeopardize your entitlement to benefits all together unless you have a reasonable explanation for the delay.” I find the explanation is very clear and in plain language.

11On July 25, 2024, the applicant’s representatives sent a letter advising that they had been retained and requesting a complete copy of the Accident Benefits file. Later in December 2024 during his Examination Under Oath the applicant testified he had counsel at the time of this accident, in relation to a previous accident.

12On August 7, the respondent corresponded with the applicant’s representative and provided an Explanation of Benefits, denying a treatment plan (OCF-18) submitted on August 6, 2024, proposed by Pro Life Wellness Centre Inc. The letter stated that “it has been two months since the accident occurred. To date we are not in receipt of your complete Application for Accident Benefits (OCF-1) … Please submit a complete Application for Accident Benefits (OCF-1). Upon review of the form, we are happy to reconsider our decision. However, in the absence of the same, please accept this as our denial and proceed to review the right to dispute.” [Emphasis added] I do not agree with the applicant’s submissions that the respondent does not state it is denying the applicant’s claim due to late submission of the OCF-1.

13I find that the submission of the OCF-18 alerted the respondent to the applicant’s intention to claim accident benefits. While the respondent provided medical and other reasons why the treatment plan was being denied, it does not undermine the respondent’s requests for the OCF-1, nor does it nullify the consequence of not providing a reasonable explanation for the delay. I find the fact that the respondent would re-consider the denial, demonstrates it was acting in good faith and remaining open to the possibility that the applicant has a reasonable explanation.

14Further, I find that the correspondence was provided to the applicant’s legal representative who would be well aware of the requirement for an OCF-1, and consequences of not filing.

15I do not agree with the applicant’s submissions that because the August 12, 2024 letter from the respondent providing notification of a new adjuster, does not mention the absent OCF-1, that it is waiving s. 32 and s. 34 of the Schedule, because I find the letter had a singular purpose of providing new contact information.

16On August 13, 2024, Pro Life Wellness Centre Inc. submitted a Disability Certificate OCF-3, signed by the applicant on May 30, 2024. The respondent responded on August 14, 2024, and this correspondence was also sent to the applicant’s legal representative. The letter again indicated “[h]owever, we still are not in receipt of your Application for Accident Benefits (OCF-1). An OCF-1 is required if you intend to make a claim for Accident Benefits. No benefit is payable until a fully completed Application for Accident Benefits (OCF-1) is received. Please complete and provide a fully completed Application for Accident Benefits (OCF-1) at your earliest opportunity.” I disagree with the applicant’s submissions that the words “at your earliest opportunity” is a clear extension of time to submit the OCF-1. I find the applicant’s OCF-1 was already late and the language is simply polite and encouraging the applicant to take action.

17Further, the applicant submits that the August 14, 2024, correspondence only references s. 32(2) and s. 32(8) and does not cite s. 32(5), s. 34, or s. 55 and is therefore confusing. I find this submission mischaracterizes the correspondence. I agree that these are the sections referenced in the footnotes, however, I find the plain language in the body of the letter is very clear as to the requirements for, and consequences of not submitting an OCF-1. Also, I find that neither the applicant nor his representatives raised questions about the intended meaning of the letter, prior to this hearing.

18On September 4, 2024, the respondent sent follow-up correspondence, again clearly indicating that the requested form has not been received in order to process a claim. The letter is also clear that a reason for the delay in submitting the form is required.

19The applicant’s legal representative did submit the OCF-1 on behalf of the applicant on September 4, 2024. There is no indication on the email that a reason for the late submission was provided.

20On September 12, 2024, the respondent acknowledged the receipt of the OCF-1 and advised the applicant that the OCF-1 was late, and requested an explanation for the delay. However, the respondent also made a s.33 request which included the clinical notes and records from the family physician, any hospital or treatment facility attended, an OHIP summary, the police report, and a Statutory Declaration form for completion. The deadline for its return was October 3, 2024. This correspondence was also sent to the applicant’s legal representative.

21I find that this s. 33 request initiated the adjustment of the applicant’s claim, without receipt of a reasonable explanation for the late OCF-1 and further, the request mitigated prejudice to the respondent. However, I agree with the respondent that pursuant to s. 131(2) of the Insurance Act the adjustment of the claim does not constitute a waiver of the requirement to provide a reasonable explanation. I do find, however, that there is minimal prejudice, if any, to the respondent caused by the OCF-1 submission three months after the accident.

22In response to the s. 33 request, on September 17, 2024, the applicant’s legal representative submitted the motor vehicle accident report to the respondent. On October 8, 2024, the decoded OHIP summary was submitted, and on October 11, 2024, the records of Dr. Nirosha Balasingam. On October 15, 2024, the applicant’s legal representative provided a completed Statutory Declaration and an OCF-10 to the respondent.

23By way of an email, on October 15, 2024, the applicant’s legal representative advised the respondent of the explanation for the late OCF-1. The reason provided amounts to an administrative error by the treatment provider, as well as the legal representative, who ultimately submitted the OCF-1 when the omission was realized.

24I find that it is credible to acknowledge that an error has been made. However, I find it is not worthy of belief that the legal representative did not know that the OCF-1 had not been submitted. The legal representative had the Accident Benefits file, which contained the correspondence and all filed documents. Further, in direct correspondence, the legal representative was advised on August 7, 14, and September 4 that the OCF-1 had not been received. Also, in the June 3, August 7, and September 4, and 12, correspondence from the respondent advised that a reasonable explanation was required for the late OCF-1. In finding that the legal representative’s explanation is not worthy of belief, I will consider the explanation provided by the applicant himself.

25The determination as to whether an explanation is credible or worthy of belief is a low bar. I am cognizant that the Schedule is consumer protection legislation, and that the Divisional Court in Hussein v. Intact Insurance Company, 2025 ONSC 842 (“Hussein”) encourages a remedial approach to reasonable explanations.

26At the Examination Under Oath on December 2, 2024, the applicant was asked why he had not submitted the OCF-1 within 30-days. He testified that “My health condition wasn’t doing okay” “lots of body pains and injuries. I was focusing on that.” I find that it is worthy of belief that the applicant was focused on his recovery.

27I find that in order for an explanation to be found reasonable, whenever possible, there should be corroborating evidence to assist the trier-of-fact. Without which, there would be little purpose to the requirement to provide an explanation.

28During an Examination Under Oath on December 2, 2024, the applicant testified that he was represented by counsel at the time of the May 23, 2024 accident, in fact he was on his way to see his counsel at the time of the accident. The respondent submits that the applicant’s oral evidence was that he is familiar with the claims process because he had been involved in two prior accidents. I note that the respondent is the insurer on both previous accidents. I was directed to correspondence dated September 22, 2023, in which the applicant was previously denied benefits because the OCF-1 was submitted late. I find that as a reasonable person, with experience in claiming accident benefits, and having been previously denied, the applicant would understand the importance of filing the application. Especially, if they are in need of treatment.

29In the case at hand, given that the applicant’s explanation is his health condition, there would reasonably be corroborating treatment records. The applicant has directed me to a Psychological Status Evaluation Report completed by Iqrq Iqbal Tariq on December 16, 2024. The fact that the record references only the previous accident is irrelevant because the question is whether the applicant’s health condition prevented him from submitting the OCF-1 within the required 30-days. The question is not whether this accident was the cause of what prevented him from submitting the OCF-1 within the required 30-days.

30However, the Psychological Status Evaluation Report does not identify any barriers that would cause the applicant to be unable to respond to the OCF-1. The applicant also directed me to the Pro Life Wellness Centre Inc. clinical notes and records of Powell-Jones Quinn, physiotherapist May 30, 2024 – September 10, 2024. The records list objective findings, which include vision blurring, and indicate diagnosis including post-concussive headaches, migraines, tinnitus, and disc herniation. I find that these are outside of the physiotherapist scope. I have not been directed to medical records that corroborate these findings; therefore, I place little weight on them. The applicant attended physiotherapy sixteen times between the time of the accident and the time that the OCF-1 was filed, which is approximately once per week. The treatment plan included spinal decompression, shoulder mobility, core and shoulder strengthening exercises. I find that these records are not persuasive that the applicant was unable to address the request for the OCF-1 because I have not heard in what way the applicant’s health prevented him from taking action.

31Further, I find that having been advised several times by the respondent that the OCF-1 had not been submitted and was required, the applicant had ample opportunity to seek assistance from the physiotherapy clinic, but he did not.

32I find the applicant has not met his burden of proof, on a balance of probabilities that he has a reasonable explanation for the late submission of his OCF-1.

CONCLUSION AND ORDER

33The applicant is barred from proceeding with his application pursuant to s. 55(1)1. of the Schedule.

34The application is dismissed.