Citation: Elbalah v. Northbridge General Insurance Company, 2026 ONLAT 25-000870/AABS

Licence Appeal Tribunal File Number: 25-000870/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:

Sara Rawda Elbalah

Applicant

and

Northbridge General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Kiet Truong, Counsel

For the Respondent:

Mitchell Barber, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Sara Rawda Elbalah, the applicant, was involved in an automobile accident on February 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, Northbridge General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The preliminary issue in dispute is:

i. Is the applicant barred from proceeding with her claim for benefits as she failed to submit her Application for Accident Benefits (“OCF-1”) within the time prescribed by the Schedule?

SUBSTANTIVE ISSUES

3The substantive issues in dispute are:

i. Is the applicant entitled to $2,715.00 for physiotherapy services, claimed in the OCF-6s, dated May 30, 2024?

ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

4The Case Conference Report and Order (“CCRO”) states that the issue in dispute is entitlement to $2,715.00 for physiotherapy services, proposed by Health Hand Clinic in a treatment plan submitted May 30, 2024. The applicant submits that the CCRO incorrectly states this issue and the issue in dispute is in relation to the OCF-6s dated May 30, 2024, seeking $2,715.00 for physiotherapy services. I have therefore amended the issue.

RESULT

5The applicant is statute barred from proceeding to a hearing for her claim for accident benefits.

PROCEDURAL ISSUES

Motions brought by both parties

6On November 7, 2025, the respondent filed a Notice of Motion requesting that an Affidavit sworn by Elizabeth Ford, on October 29, 2025, included within the applicant’s Reply Submissions, be excluded from the hearing. Ms. Ford is a senior law clerk who works at the law firm of the applicant’s counsel. The Affidavit sets out the efforts made by the firm of the applicant’s counsel prior to submission of her OCF-1. It also claimed costs of the motion. The Tribunal issued an Order stating that the Motion would be addressed by the hearing adjudicator.

7On November 18, 2025, the applicant filed a Notice of Motion requesting the following:

a. An order excluding the Examination Under Oath (“EUO”) transcript from evidence on the basis that it was not served or disclosed prior to the hearing, and excluding any portion of the respondent’s submissions which rely upon the EUO transcript;

b. An order admitting the Affidavit of Elizabeth Ford, sworn on October 29, 2025, as proper evidence to the hearing;

c. An order that the respondent shall, within thirty days of this Motion, produce, in both digital recording and transcript forms, all of the telephone calls relating to the applicant’s attempts via its legal counsel to have the respondent confirm the policy and accept the applicant’s Application for Accident Benefits, inclusive of telephone calls as detailed on Ms. Ford’s Affidavit;

d. An order that counsel for the respondent produce the correspondence sending the Application for Accident Benefits to the applicant, including proof of mailing; and

8Costs of the applicant for this Motion and in response to the Motion of the respondent. By Motion Order, dated November 20, 2025, the Tribunal ordered that the applicant’s requests with respect to the exclusion of the EUO transcript, the admittance of Ms. Ford’s Affidavit, and the request for costs are to be addressed by the hearing adjudicator. The applicant’s request for productions was denied.

Exclusion of the Affidavit of Elizabeth Ford and the EUO Transcript

9In the applicant’s Reply submissions, she submitted an Affidavit of Ms. Ford, sworn on October 29, 2025. The respondent has brought a Motion requesting that the Affidavit be excluded from evidence. The respondent argues that the Affidavit is in contravention of the CCRO, dated April 28, 2025 and the Licence Appeal Tribunal Rules, 2023 (“Rules”), and was not disclosed to the respondent prior to service of the applicant’s original written submissions.

10The respondent argues that the inclusion of this Affidavit evidence is in direct contravention of the CCRO, dated April 28, 2025, which specifically states at paragraph 18 that “the parties agreed that no affidavits will be submitted”. In addition, the CCRO gave the applicant until June 28, 2025, to produce all other documents and things not previously exchanged that she intends to rely on at the hearing. The respondent submits that the applicant failed to comply with the CCRO by serving the Affidavit on October 31, 2025, four months after the production due date.

11The respondent argues that the applicant should have brought a Motion seeking permission to file the Affidavit evidence but failed to do so. It further argues that it was not afforded an opportunity to respond to the contents of the Affidavit, cross-examine the affiant or to challenge the reliability of her assertions. It relies upon Rule 9.3 of the Licence Appeal Tribunal Rules, 2023 (“Rules”) which prohibits a party from relying on evidence that was not properly disclosed without the Tribunal’s permission. The respondent submits that to admit the Affidavit would amount to a hearing by ambush and a violation of procedural fairness.

12The applicant submits that it filed the Affidavit of Ms. Ford only after the respondent breached the disclosure requirements by introducing an unserved EUO Transcript. The applicant argues that the respondent is attempting to rely on an EUO Transcript that was never properly disclosed or served prior to the hearing in accordance with the CCRO or Rule 9 of the Rules. The applicant submits that the CCRO required materials intended to be relied upon to be served by a specified date. The applicant submits that the respondent first disclosed the EUO Transcript in its written submissions which deprived her of any meaningful opportunity to review and respond. She submits that the late introduction of the EUO Transcript constitutes a trial by ambush. She argues that the Affidavit is the only mechanism available to limit the prejudice caused by this breach. The applicant submits that the Affidavit is directly relevant, reliable and limited in scope. It does not expand the issues before the Tribunal but simply responds to the prejudice created by the respondent’s non-disclosure.

13The respondent submits that the applicant’s Motion to exclude the EUO Transcript is out of time as it was served on November 17, 2025, ten days after the hearing of this matter was scheduled to take place. It argues that the applicant could have brought her Motion well before the November 7, 2025 hearing date and has not provided an explanation for the delay in this regard.

14The respondent submits that the applicant and her counsel attended the EUO and had every opportunity to obtain the Transcripts. The respondent submits that the applicant never requested the Transcripts from the respondent, listed same for inclusion in the document exchange portion of the CCRO, asked for a production order or brought a motion to obtain the EUO Transcripts. It argues that it is unclear how the use of a Transcript from an EUO that the applicant was aware of since July 18, 2024 can be considered ambush. The respondent further submits that the applicant has not established any prejudice related to the inclusion of the EUO Transcript and that nothing in the Transcript impairs the applicant’s right to know and meet the case being advanced.

15I do not grant the respondent’s request to exclude the Affidavit of Ms. Ford and I do not grant the applicant’s request to exclude the EUO transcript in this hearing.

16Rule 9.3 of the Rules deals with the failure to comply with the Rules of document exchange and production orders. When making its determination, the Tribunal may consider any relevant factor for the non-compliance, including:

a. The reasons for non-compliance;

b. Whether a party will be prejudiced by the admission or exclusion of the evidence to the extent to which that prejudice can be mitigated by any other order;

c. The extent to which the substance of the information or testimony lies within the knowledge of the other party;

d. Whether the other party opposes the admission of the evidence or testimony, and

e. The relevance of the document, thing, or testimony to an issue in dispute in the proceeding.

17The basic principle underlying the duty of procedural fairness is that parties affected by the decision should have the opportunity to present their case fully and fairly, know the case to be met, and a have a decision affecting their rights, interests, or privileges made using a fair, impartial and open process: see Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 39.

18In this matter, the CCRO clearly states that the parties agreed that no Affidavits would be submitted. Despite this, after the respondent had filed its submissions, the applicant obtained an Affidavit and then served it for the first time in her Reply submissions. In doing so, the respondent received no notice of it and was not provided the opportunity to respond to the contents of the Affidavit or cross-examine the affiant on her assertions.

19I agree with the respondent that reliance on this Affidavit is in contravention of the CCRO which specifically states that “the parties agreed that no affidavits will be submitted”. The applicant did not seek permission of the Tribunal to vary the CCRO, pursuant to Rule 9.3, to rely on the Affidavit.

20I disagree with the respondent’s assertion that the applicant’s Motion is out of time because it was submitted after the hearing date of November 17, 2025. I find that Rule 15 of the Rules does not require a party to file a Motion by a certain time. Rule 15 provides jurisdiction for adjudicators to order that a Motion be heard at a scheduled event, such as a written hearing. I find that the Motion Order dated November 20, 2025, accepted the applicant’s Motion as filed and ordered that it be heard by the hearing adjudicator and is therefore properly before me.

21With respect to the EUO Transcript, I find that the respondent has contravened the CCRO which required the parties to produce all other documents and things not previously exchanged that it intends to rely on at the hearing by June 28, 2025. The respondent did not provide the applicant with a copy of the EUO Transcript or advise that it was relying on same until it provided its submissions. While I agree that the applicant was aware that an EUO Transcript existed because she attended at the EUO, it was still incumbent on the respondent to provide the applicant with all evidence it intended to rely upon in its submissions by June 28, 2025. I further find upon review of the respondent’s Case Conference Summary, that while the respondent listed the documents it intends to rely on at the hearing, the EUO Transcript is not listed. I therefore do not accept the respondent’s argument that it was the applicant’s obligation to request this Transcript or to bring a motion for production of evidence when it had no notice that the respondent was intending to rely on the Transcript.

22I therefore find that both parties have contravened the CCRO with respect to the applicant submitting an Affidavit without notice or approval of the Tribunal and with respect to the respondent failing to provide the applicant with a copy of the EUO Transcript prior to the hearing. However, in order for me to properly assess the preliminary issue and the substantive issues before me, I find that it would be procedurally unfair to exclude either of these pieces of evidence. Without the evidence contained in both the Affidavit and the EUO Transcript, I do not have the full picture as to what transpired in this matter which is relevant to the issues in dispute in this proceeding.

23For the reasons outlined above, pursuant to Rule 9 of the Rules, I will use my discretion and review both the Affidavit of Ms. Ford and the entirety of the EUO Transcript.

Costs of the Motions

24Rule 19.1 of the Rules provides for the Tribunal to order costs where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.5 lists the factors to consider when adjudicating a request for costs.

25Both the applicant and the respondent have claimed costs of their Motions. However, upon review of both parties’ submissions, neither has made submissions as to why a costs award is warranted.

26I therefore find that as neither party has submitted any evidence to support their claims for costs, I do not find that either party has acted unreasonably, frivolously, vexatiously or in bad faith.

27For the reasons outlined above, I decline to award costs to either party.

PRELIMINARY ISSUE

Section 32 of the Schedule

The Law

28Section 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.

29Once 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.

30Section 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.

31The interpretation of “reasonable explanation” is guided by Horvath v. Allstate Company of Canada, 2003 ONFSCDRS 92 (“Horvath”) and was 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.

32Pursuant 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.

Compliance with s. 32 of the Schedule

33The applicant submits that she was involved in the subject accident on February 27, 2023, when she was walking across a crosswalk and was struck by a motor vehicle. On May 29, 2024, she submitted an Application for Accident Benefits (“OCF-1”) to the respondent.

34The applicant submits that the respondent alleges that she is in non-compliance with s. 32(5) of the Schedule. The applicant argues that pursuant to s. 32(5) of the Schedule, the 30-day deadline to submit an OCF-1 does not start until the insured receives the OCF-1 from the insurer. If the insurer fails to provide the OCF-1 to the applicant, she cannot be penalized for not returning a form they were never given. The applicant relies on the Tribunal decision in Nichols v. Gore Mutual Insurance Company, 2023 CanLII 7299 (ON LAT) (“Nichols”), where the Tribunal determined on reconsideration, that the insurer had failed to prove it ever enclosed an OCF-1 form in the mailings to the applicant. The insurer’s cover letter was in evidence, but the actual OCF-1 form was not, raising doubt that the form was sent.

35The applicant submits that the 30-day time limit for submission of her OCF-1 never began to run because the respondent never actually provided the OCF-1 to the applicant. She argues that the respondent cannot point to any concrete evidence, such as a dated cover letter or delivery confirmation, showing when or even if an OCF-1 form was sent to the applicant. She argues that her legal representative downloaded an OCF-1 form online because the respondent failed to provide one. The applicant argues that she should not be penalized by the respondent’s breach of its statutory duty to send her the appropriate forms.

36The respondent submits that it was not notified of the applicant’s involvement in the subject accident until it received her OCF-1 on May 29, 2024, 15 months after the accident occurred. It therefore claims that she is barred from proceeding with her Application before the Tribunal due to her non-compliance with s. 32(1) of the Schedule and her failure to provide a reasonable explanation for her inadvertence, as required by s. 34 of the Schedule.

37The respondent submits that the applicant gave evidence at her EUO that she was aware of her injuries shortly after the accident, she was aware of potential benefits available to her and the need to retain legal representation, and that she never reported the accident to an insurance company. The respondent submits that the applicant had all of the information required to notify the respondent of the accident on the date of loss or immediately thereafter since the Motor Vehicle Accident Report lists the third-party driver’s name as well as the insurance company and policy number. Instead, the respondent submits that the applicant left the country in May of 2023 and went to Lebanon.

38The respondent submits that despite being retained by the applicant in May 2023, the applicant’s counsel did not submit an OCF-1 or formally notify the respondent of the occurrence of the subject accident until May 29, 2024. The respondent submits that at the EUO, the applicant’s counsel provided an explanation as to the delay that staff from his office attempted to contact the respondent in May 2023 and a few times after that, at which time they were advised that the respondent did not insure the claimant. The respondent argues that there is no evidence within the adjuster logs notes of any of the supposed interaction with the applicant’s counsel. The respondent further submits that despite ongoing requests, the applicant has not provided any evidence that she or her legal representatives had interactions with the respondent prior to submitting her OCF-1 on May 29, 2024.

39The respondent argues that the applicant’s position that it is somehow blameworthy for “not providing an OCF-1” is without merit. The respondent submits that as it was never advised of the accident until over a year later, how could it be expected to send an OCF-1 to the applicant when the applicant already sent a completed OCF-1 to the respondent.

40In her Reply submissions, the applicant submits that she made multiple attempts to contact the respondent in 2023 to report and discuss the accident and that her counsel submitted an OCF-1 to the respondent on or about May 24, 2023 via mail as described in the Affidavit of Ms. Ford. She further submits that a call was made on May 23, 2023, despite the respondent’s submission that there is no record of the call. The applicant further submits that multiple calls were made on May 23 or 24, 2023, November 17, 2023, January 3, 2024, February 21, 2024, April 9, 2024 and April 11, 2024 which have not been addressed by the respondent.

41The parties agree that the applicant did not notify the respondent of her intention to apply for accident benefits within seven days after the circumstances arose that gave rise to her entitlement to accident benefits as required by s. 32(1) of the Schedule. Rather, the applicant did not provide her completed OCF-1, advising the respondent of her intention to apply for accident benefits until May 29, 2024. The issue before me is whether the applicant has provided a ”reasonable explanation” for the delay pursuant to s. 34 of the Schedule.

42I 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.

43I find in assessing these principles, consideration must also be given to the principles set out in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 (“Tomec”), with respect to consumer protection, and Hussein v. Intact Insurance Company, 2025 ONSC 842 (“Hussein”), where it must be recognized that consumers who have motor vehicle accidents are in a vulnerable position.

44I find that the applicant has not provided an explanation as to why she did not report the accident within seven days after the accident or as soon as practicable, as required by s. 32(1). While she submits that she contacted legal counsel on May 24, 2023, this was still a three-month delay after the subject accident which is clearly in contravention of s. 32(1). The applicant has not addressed an explanation for this delay in her submissions.

45The applicant did not address the reasons for the delay in submitting her OCF-1 in her initial submissions but rather focused on s. 32(5) of the Schedule. I agree with the respondent that as it was not aware of the applicant’s involvement in the subject accident, it could not have reasonably provided her with an Accident Benefits Package. I find that s. 32(5) is not applicable to the subject dispute for this reason.

46The applicant in her Reply submissions addressed her reasons for the late reporting of the accident and submission of her OCF-1 to the respondent. She claims that attempts were made by her counsel’s office to notify the respondent from May 24, 2023 to May 29, 2024, as set out in the Affidavit of Ms. Ford. I find that no documentation was attached to the Affidavit to support the attempts made by the firm. While the applicant submits that all attempts were made via phone call so there is no documentary evidence, I do not agree. The applicant submits that an OCF-1 was originally submitted to the respondent on May 24, 2023 by mail yet she has not provided a copy of the correspondence or the OCF-1 that was sent. I find that this is a crucial piece of evidence that would have confirmed the evidence in Ms. Ford’s Affidavit. In addition, I find that while the applicant has submitted the dates in which phone calls were made, there is no documentary evidence to support this. I find that counsel would have had a record of these phone calls in the applicant’s file but has not provided the notes to support this despite multiple requests by the respondent.

47In addition, in reviewing the Affidavit of Ms. Ford, she notes that an OCF-1 was submitted on May 24, 2023. The next action taken by the applicant’s counsel was not until November 17, 2023, when a police report was requested and the respondent was again contacted. There is no explanation from the applicant as to why no action was taken during this time period in follow up. The Affidavit of Ms. Ford indicates the subsequent dates that phone calls were made but the applicant has not provided an explanation as to why there were months between the calls made to investigate the claim sooner.

48The 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”. I find that based on the evidence, the applicant’s delay in notifying the respondent of her claim is not reasonable. I find that while the applicant has submitted an Affidavit of Ms. Ford outlining the steps taken by counsel in investigating the applicant’s claim, no documentation has been provided in support of this Affidavit despite multiple requests made by the respondent. In addition, I find that the delay in investigating and following up with the claim was unreasonable and months went by without any follow up as documented in the dates provided in the Affidavit of Ms. Ford.

49I note the respondent’s submissions that despite ongoing requests, the applicant has not provided any evidence that she or her legal representatives had interactions with the respondent. I find that the applicant has not addressed the lack of production in her submissions.

50I find 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 her. The applicant moved out of the country to Lebanon in May 2023 and therefore the respondent is prevented from assessing the applicant’s medical records and sending her for assessments. While the applicant will face hardship if she is prevented from proceeding with her Application for Accident Benefits, I find that she has not provided a reasonable explanation for the significant delay in investigating her claim and submitting an OCF-1.

51For the reasons outlined above, I find that the applicant has not provided a reasonable explanation for the delay pursuant to section 34. Therefore, in accordance with s. 55(1)1 of the Schedule, I find that the applicant is barred from proceeding with the substantive issues in dispute.

ORDER

52I find that the applicant is statute barred from proceeding to a hearing for her claim for accident benefits. The application is dismissed.