Citation: Jiang v. Co-operators General Insurance Company, 2026 ONLAT 25-012305/AABS - PI

Licence Appeal Tribunal File Number: 25-012305/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:

Zihua Jiang

Applicant

and

Co-operators General Insurance Company

Respondent

PRELIMINARY ISSUE DECISION AND ORDER

ADJUDICATOR: Trina Morissette, Vice-Chair

APPEARANCES:

For the Applicant: Zoe Meditskos, Paralegal Aline Avanessy, Counsel

For the Respondent: Jamie R. Pollack, Counsel

HEARD: In writing

OVERVIEW

1Zihua Jiang, the applicant, was involved in an accident on June 9, 2019, and sought benefits from Co-operators General Insurance Company, the respondent, 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 and applied to the Licence Appeal Tribunal (“the Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue before the Tribunal is whether the applicant is barred from proceeding with her claim for accident benefits because she failed to submit her application for benefits (OCF-1) within the time prescribed in the Schedule.

RESULT

3The issue of late notification pursuant to section 32(1) of the Schedule is not properly before the Tribunal.

4The respondent has not shown that the applicant failed to submit a completed application for accident benefits within 30 days of receiving the accident benefits package, pursuant to section 32(5) of the Schedule.

5The applicant is not barred from proceeding with her application. The application shall proceed to a hearing on the substantive issues as previously scheduled.

BACKGROUND

6On June 9, 2019, the applicant, accompanied by her husband, was involved in an accident. The applicant alleged that while driving her vehicle, she and her husband were arguing when he grabbed and pulled her hair and smashed her head into the driver’s side window causing her to veer to the right to avoid other cars. In doing so, she mounted a curb at which point she alleges she hit her head a second time.

7This matter has a notable history with the Tribunal. On March 26, 2021, the applicant filed a first application with the Tribunal under Tribunal File Number 21-003797/AABS. The first application proceeded to a case conference on September 22, 2021 at which point the respondent raised the preliminary issue of whether the incident of June 9, 2019 was an “accident” as defined by the Schedule. In an Amended Preliminary Issue Decision and Order issued February 5, 2023, the Tribunal found that the incident of June 9, 2019 did not meet the causation test and therefore the incident was not an “accident”: see Jiang v. The Co-operators General Insurance Company, 2023 CanLII 7298 (ON LAT). A reconsideration request of the preliminary issue decision was filed by the applicant. The request was dismissed on May 1, 2023 (see: Jiang v. The Co-operators General Insurance Company, 2023 CanLII 40099 (ON LAT).

8The applicant subsequently appealed the preliminary issue decision and the reconsideration decision to the Divisional Court. In a decision released March 1, 2024 (see: Jiang v. The Co-operators General Insurance Company, 2024 ONSC 1225) the Divisional Court partially allowed the appeal. The Court found that the Tribunal erred in law by failing to consider whether an “accident” occurred subsequent to the assault and when the applicant lost control of the vehicle. The matter was remitted back to the Tribunal for a hearing to determine causation and entitlement to benefits.

9As per the Court’s directive, the Tribunal scheduled a 5-day videoconference hearing. On December 19, 2024, the Tribunal released its Decision in Jiang v. The Co-operators General Insurance Company, 2024 CanLII 126309 (ON LAT). The Tribunal found that the incident was an “accident” as defined by the Schedule but found that the applicant had not satisfied her burden to prove that she was entitled to the benefits she claimed which included an income replacement benefit (“IRB”), an attendant care benefit, treatment plans, interest, and an award. The applicant sought reconsideration of the decision but the request was dismissed on July 2, 2025 (see: Jiang v. Co-operators General Insurance Company, 2025 CanLII 62719 (ON LAT)).

10On July 29, 2025, the applicant filed an appeal to the Divisional Court on the grounds that the Tribunal erred in finding that she was not entitled to an IRB or to the treatment plans in dispute. The Divisional Court’s decision is pending.

11On September 18, 2025, the applicant filed the current application with the Tribunal. At a case conference held in the matter on January 15, 2026, the respondent raised the preliminary issue that is the subject of this Preliminary Issue Decision and Order:

Is the applicant barred from proceeding with her claim for accident benefits because she failed to submit her application for benefits (OCF-1) within the time prescribed in the Schedule?

ANALYSIS

The issue of late notification pursuant to section 32(1) of the Schedule is not properly before the Tribunal

12In its initial submissions on this preliminary issue, the respondent submits that the application herein “should be dismissed for late reporting because she failed to notify [it] to apply for accident benefits and to submit the Application for Accident Benefits (“OCF-1”) within the time prescribed in section 32(1) of [the Schedule].” The respondent argues that the onus is on the applicant to provide a reasonable explanation for failing to “notify” it of her intention to apply for accident benefits within the applicable time period, and submits here, no reasonable explanation was provided.

13I find that the issue of late notification is not properly before me. The issue of notification and section 32(1) of the Schedule was not raised at the case conference, was not identified as a preliminary issue in the January 15, 2026 Case Conference Report and Order (“CCRO”), and there is no evidence that the respondent identified its intention to raise this preliminary issue prior to the service and filing of its submissions for this preliminary issue hearing whether through the filing of a motion or otherwise. Pursuant to Rule 20.4 of the Licence Appeal Tribunal Rules, 2023 (“the Rules”), any preliminary issue a party intends to raise must be included in their case conference summary.

14Based on the submissions and the evidence relied on by the respondent herein, it would appear the respondent relies mainly on the issue of late notification (section 32(1)) rather than the late submission of the applicant’s OCF-1 (section 32(5)). Nonetheless, the 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 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, citing Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC). Here, the need to ensure procedural fairness is amplified because granting the relief sought of the respondent would have the application barred from proceeding to a hearing on its merits, which is a significant outcome for the applicant.

15I have considered whether the respondent’s error in identifying the appropriate preliminary issue to be considered can be cured by a mutual understanding and recognition that the issue to be decided is that of notification (section 32(1)) rather than submission of the OCF-1 (section 32(5)). I find it cannot. The applicant’s responding submissions centre on the respondent’s allegation that her OCF-1 was delayed and not the circumstances surrounding any potential late notification of the accident to the respondent.

16I therefore find that the applicant was not provided with proper notice of the section 32(1) notification issue and therefore was not provided with appropriate time to consider and respond to the issue. On the basis of procedural fairness and Rule 20.4, it will not be considered within the context of this Preliminary Issue Decision and Order.

The respondent has not shown that the applicant failed to submit her application within the requirements of section 32(5) of the Schedule

17Section 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 day.

18Once 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 the benefits and information on the election relating to the specified benefits, if applicable (section 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.

19Section 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 (“Horvath”) and was reiterated in K.H. v. Northbridge, 2019 CanLII 101613 (ON LAT) (“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 person” standard;

e. The lack of prejudice to the insurer does not make an explanation automatically reasonable; and

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.

20The respondent submits that the applicant did not notify or submit her application for accident benefits until July 23, 2020 – thirteen months post-accident. Upon receipt of the OCF-1, the respondent advised the applicant that her claim was being investigated due to her late notification and it requested that she provide a reasonable explanation for the delay. It argues that to date, the applicant has not provided a reasonable explanation for her delay.

21The applicant submits that the respondent did not deny her entitlement to accident benefits on the basis of her late submission of her application. Instead, the respondent elected to proceed with an investigation into the claim. She submits that the respondent’s correspondence of July 29, 2020 acknowledging receipt of the OCF-1 was not a denial but a conscious decision to proceed with the application without prejudice. She submits that no denial based on a late application was issued to her and she points to correspondence received from the respondent, including one dated June 7, 2021, where she submits the respondent referenced the accident being reported approximately one year after the incident. She argues the respondent did not deny entitlement based on a late application.

22On October 9, 2020, the applicant participated in an Examination Under Oath (“EUO”). The applicant submits that by the conclusion of her EUO, the respondent had all the facts necessary to determine whether it intended to rely on the issue of a late application. She argues if it intended to deny the claim on that basis, it was required to do so at that time. It did not. The applicant relies on the doctrines of abuse of process, vexatious litigation conduct, waiver and acquiescence, and the absence of a clear and unequivocal denial.

23The respondent relies on the applicant’s evidence at the EUO where she testified she did not initially report the accident because she believed she would be “fine after a few months of relaxation” with medication. It also points to the evidence when she was asked why she waited 13 months to apply for accident benefits if she thought she was injured, and argues that she contradicted herself when she stated she never knew she could apply until she spoke with friends and conducted an online search.

24I agree with the respondent that the insurer’s obligations set out in section 32(2) of the Schedule do not arise unless the insured person advises it that she intends to claim benefits, which normally occurs when the person notifies it that she was injured in the accident. However, since I have found above that the issue of late notification pursuant to section 32(1) of the Schedule is not properly before me, in order for me to decide the issue that is properly before me (late submission of the OCF-1), I must assume, without deciding, that proper notification of the accident was provided here by the applicant.

25Once an insurer receives notice of the applicant’s intention to apply for accident benefits, section 32(2) then requires it to provide her with an accident benefits package with the required information to assist her with her application, and all appropriate forms, including an OCF-1 form. It is only once the package is submitted to the applicant that the 30-day statutory trigger of section 32(5) of the Schedule kicks in.

26Here, there is no evidence before me that the respondent provided an accident benefits package or the required OCF-1 form to the applicant. Without evidence that the respondent’s statutory obligation at section 32(2) was adhered to, I find the respondent has not shown that the 30-day timeline of section 32(5) was triggered. Therefore, the respondent has not shown that the applicant failed to submit a completed application for accident benefits to the respondent within 30 days after receiving the package.

27I acknowledge that the respondent’s decision to raise section 32(5) of the Schedule rather than section 32(1) was fatal to the respondent’s position on this preliminary issue. Each party has the onus of putting forward their arguments, evidence and authorities to make their case. This includes identifying the proper preliminary issue for the Tribunal to consider. The respondent’s attempt to raise the issue of section 32(1) notification in its submissions on the preliminary issue, rather than raising it at the case conference or bringing forward a motion to amend the preliminary issue(s) to be considered, does not satisfy procedural fairness or the Rules.

28The applicant may proceed with her application.

ORDER

29For the above reasons, I find:

i. The issue of late notification pursuant to section 32(1) of the Schedule is not properly before the Tribunal.

ii. The respondent has not shown that the applicant failed to submit a completed application for accident benefits within 30 days of receiving the accident benefits package, pursuant to section 32(5) of the Schedule.

iii. The applicant is not barred from proceeding with her application. The application shall proceed to a hearing on the substantive issues as previously scheduled.