Sachithananthan v. TD General Insurance Company, 2026 CanLII 48390

Citation: Sachithananthan v. TD General Insurance Company, 2026 ONLAT 25- 009827/AABS - PI

Licence Appeal Tribunal File Number: 25-009827/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:

Jannan V Sachithananthan

Applicant

and

TD General Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Lisa Holland

APPEARANCES:

For the Applicant:

Nav Krishnan, Counsel

For the Respondent:

Sunjay Mistry, Paralegal

Heard:

By Way of Written Submissions

OVERVIEW

1Jannan V. Sachithananthan, the applicant, was involved in an automobile accident on November 25, 2022, 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, TD General 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 by the Schedule?

RESULT

3The applicant is not statute-barred from proceeding with his application before the Tribunal.

ANALYSIS

Background

4The applicant was involved in an accident on November 25, 2022 (the “2022 accident”). The applicant produced a letter dated January 20, 2023, which confirms that his legal representative had a telephone conversation with Jane Champagne, the adjuster on January 20, 2023. The letter includes a fax confirmation that on January 20, 2023, at 12:54 p.m., the applicant delivered an application for accident benefits (“OCF-1”) dated December 12, 2022 for the 2022 accident.

5By letter dated February 1, 2024, the applicant requested the status of his claim. In letter dated February 26, 2024, under a separate claim number for another accident occurring on January 1, 2023, the respondent states that it did not receive an OCF-1 for the 2022 accident, and it understood the applicant made a claim for accident benefits with Economical Insurance. The applicant sent another copy of the OCF-1 on April 19, 2024. The parties do not explain why the respondent had information about the applicant having a possible claim with Economical Insurance.

6The respondent submits that the applicant did not report the accident until January 20, 2023, which is 56 days after the 2022 accident. The respondent submits that it did not receive the OCF-1 on January 20, 2023, and it did not start the claim until April 25, 2024, after the applicant re-submitted the OCF-1 on April 19, 2024. The respondent sent an explanation of benefits (“EOB”) dated April 25, 2024 to the applicant confirming receipt of the OCF-1 dated December 12, 2022 with an assigned claim number and summary of benefits. The respondent requested further employment information and a Disability Certificate. The letter also outlined the applicant’s right to dispute any determination made by the respondent. In a separate letter dated April 25, 2024, the respondent requested the police report, the Economical file, a statutory declaration, and clinical notes and records of the family physician.

7The applicant submitted a Disability Certificate (OCF-3) dated July 10, 2024 to the respondent by July 23, 2024, and an Election Form (OCF-10) dated July 11, 2024 by October 7, 2024 for the 2022 accident.

8On September 9, 2024, the respondent approved a Treatment Confirmation Form (OCF-23) dated July 10, 2024, and provided payment of various invoices (OCF-21) through the means of OCF-9 Explanation of Benefits and Standard Benefit Statements.

9In subsequent correspondence dated October 9, 2024, the respondent advised the applicant that it received the completed statutory declaration and OCF-10. However, it requires the Economical file and police report to determine his entitlement to accident benefits, and it requires confirmation of his employment status at the time of the accident.

10The respondent continued to adjust the applicant’s claim and it scheduled and re-scheduled Insurer’s Examinations (“IE”) which the applicant attended to determine his entitlement to various treatment plans (OCF-18s).

The Law

11Section 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 date.

12Once 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 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.

13Section 34 states that if the insured person does not comply with the time limits prescribed under Part VIII of the Schedule, which includes s. 32, the insured person may still be entitled to benefits if they have a reasonable explanation for the delay.

14Section 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.

15The 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:

1. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.
2. The onus is on the insured person to establish a “reasonable explanation”.
3. Ignorance of the law alone is not a “reasonable explanation”.
4. 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.
5. The lack of prejudice to the insurer does not make an explanation automatically reasonable.
6. 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.

Did the applicant comply with s. 32(1) of the Schedule?

16I find that the respondent has met its onus to prove that the applicant was non-compliant with s. 32(1) of the Schedule.

17It is undisputed that the applicant did not notify the respondent of his involvement in the accident until January 20, 2023, when he submitted an OCF-1.

18The respondent further submits that the applicant has not provided a reasonable explanation for the delay.

19The applicant argues that despite the late notice, he relied on the respondent accepting his claim, and it paid benefits. The applicant further argues that there is no actual prejudice to the respondent because it had an opportunity to investigate the claim after it acknowledged receipt of the OCF-1 on April 25, 2024. The applicant submits that the respondent further delayed his claim between January 20, 2023 and April 25, 2024 because it initially failed to acknowledge receipt of the OCF-1, which was sent by fax on January 20, 2023.

20The respondent submits that the applicant failed to notify the insurer of his intention to apply for benefits or submit an OCF-1 form until January 20, 2023, which was 56 days after the 2022 accident. The respondent does not explain the reason it did not receive the OCF-1 on January 20, 2023, despite a fax confirmation of same. On April 19, 2024, the applicant provided another copy of the OCF-1, and he also provided the fax confirmation that the OCF-1 had been sent on January 20, 2023. After receiving the OCF-1, which was re-sent on April 19, 2024, the respondent opened a claim and paid benefits.

21The respondent argues that despite the lateness of the OCF-1, it processed the claim and paid benefits, which does not preclude it from raising s. 32 to bar the application from proceeding.

The OCF-1 was filed late

22The applicant does not dispute the fact that the OCF-1 was filed outside the timeline stipulated in s. 32(5) of the Schedule. The applicant focuses his submissions on whether he has a reasonable explanation for the delay in submitting his OCF-1 pursuant to s. 34 of the Schedule.

The applicant has established a reasonable explanation for the delay

23I find that the applicant has established a reasonable explanation for the delay. The applicant was involved in a subsequent accident on January 1, 2023, and the respondent initially acknowledged receipt of the OCF-1 for that accident but not for the 2022 accident. The respondent did not raise the issue of the lateness of the OCF-1 until the applicant filed his application with the Tribunal. I find that the applicant would suffer irreparable prejudice if he is statute-barred from pursuing his claim for accident benefits after the respondent later accepted his claim and paid benefits.

24The applicant submits that the respondent waived compliance with the strict adherence to statutory timelines by accepting his OCF-1, processing the claim and paying benefits. The applicant further argues that the respondent is also in non-compliance with the Schedule by its failure to acknowledge receipt of the OCF-1 in a timely fashion after it was sent on January 20, 2023.

25The applicant submits that 56 days is a short delay from the date of the 2022 accident and the date he submitted an OCF-1 on January 20, 2023. He further submits that the delay did not prevent the respondent from processing the claim, and any prejudice to the respondent is minimal.

26The 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’s involvement in two accidents on November 25, 2022 and January 1, 2023 is not disputed, and the respondent had notice of the applicant’s claims within one month of the second accident. I find that the respondent had the opportunity to obtain information the applicant’s involvement in both accidents. The explanation is clearly credible and worthy of belief as the fax confirmation shows that the respondent did receive the OCF-1 on January 20, 2023, which is a short delay, and would not impede the respondent’s opportunity to obtain information and adjust the claim. Although ignorance of the law is not reasonable, the applicant could assume that the respondent received the OCF-1 on January 20, 2023 based on the fax confirmation.

27I have also taken into account the personal characteristics and reasonable person standard set out in Horvath. I am not satisfied that the applicant has forfeited his rights to a claim because he retained legal representation and took steps to submit an OCF-1 for both his accident benefits claims. I find that since the applicant was involved in two accidents within close proximity of one another, and the respondent did not acknowledge receipt of both OCF-1s, there is a reasonable explanation for delay, given a reasonable assumption that on January 20, 2023, the respondent received the OCF-1 for the 2022 accident which is a short delay.

28I 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 reasonable to allow the applicant to proceed with his claim, in the absence of submissions by the respondent to explain how it has suffered any prejudice by the delay. Although the respondent submits that it did not have an opportunity to investigate the applicant’s injuries after the accident, I disagree. The respondent was handling the second claim within a month after that accident, and it had ample opportunity to investigate the applicant’s involvement in multiple accidents and his injuries from each accident.

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 he should not be limited by the respondent’s initial confusion about his involvement in multiple accidents, which created a further delay of over a year before it started adjusting his claim.

Section 55

30Pursuant to s. 55(1)1 of the Schedule, an insured person shall not apply to the Tribunal under subsection 280(2) of the Insurance Act if the insured person has not submitted an application for the benefit within the time prescribed in s. 32.

31As outlined above, I find that although the applicant did not submit a completed OCF-1 within the timelines prescribed by the Schedule, he was involved in multiple accidents, and the respondent further delayed his claim by initially failing to acknowledge receipt of his OCF-1, which constitutes a reasonable explanation for the lengthy delay. Accordingly, I find that the applicant is not statute-barred from proceeding with his application.

ORDER

32The applicant may proceed with his application to the substantive issue hearing.