Rajcoomar v. Definity Insurance Company, 2026 CanLII 53779

Citation: Rajcoomar v. Definity Insurance Company, 2026 ONLAT 25-12614/AABS - PI

Licence Appeal Tribunal File Number: 25-012614/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:

Ryan Rajcoomar

Applicant

and

Definity Insurance Company

Respondent

PRELIMINARY ISSUE DECISION AND ORDER

ADJUDICATOR: Trina Morissette, Vice-Chair

APPEARANCES:

For the Applicant: Veronica D’Angelo, Paralegal

For the Respondent: Nicolas Maida, Counsel

HEARD: In writing

OVERVIEW

1Ryan Rajcoomar, the applicant, was involved in an accident on March 29, 2023, and sought benefits from Definity 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 his claim for accident benefits because he failed to submit his application for benefits (OCF-1) within the time prescribed in the Schedule.

RESULT

3The 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.

4The applicant is not barred from proceeding with his application. The application shall proceed to a hearing on the substantive issues as previously scheduled.

ANALYSIS

5Section 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.

6Once 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.

7Section 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.

8On March 29, 2023, the applicant was in an accident when his vehicle was rear-ended by a transport truck. He submits that since the accident, he experiences chronic back pain, exacerbation of pre-existing headaches, anxiety, panic attacks, depression, and cognitive and sleep disturbances. The impairments, he submits, have prevented him from resuming his pre-accident employment and have significantly disrupted his daily functioning.

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

9The respondent submits “there is no question” that the applicant did not comply with the notification requirements of section 32(1) or the timeline to submit his application (OCF-1) as per section 32(5).

10The applicant, however, submits that compliance with the requirements of section 32(1) were satisfied when the accident was reported to the respondent on March 31, 2023. He concedes that, at that time, he reported that he did not sustain any injuries. He argues, however, that had the respondent provided the requisite accident benefits package and information at that time, he would have been aware of the 30-day timeline for submitting his OCF-1.

11The applicant relies on M.O. v. Jevco Insurance Company, 2020 CanLII 63561 (“M.O.”), a decision of this Tribunal and the Divisional Court’s decision in Hussein v. Intact Insurance Company, 2025 ONSC 842 (“Hussein”). In reference to Hussein, the applicant argues that the Schedule must be interpreted consistently with its consumer protection mandate and that, in this matter, the applicant was never provided with an accident benefits package, nor was he informed of the 30-day time limit to submit his OCF-1. He argues that the respondent cannot rely on the applicant’s initial reporting of no injuries to absolve itself of its obligation to provide information about potential entitlement to accident benefits once the accident is reported.

12The applicant submitted his OCF-1 on January 12, 2024, over nine months post-accident.

13In its reply submissions, the respondent argues that M.O. is not binding on the Tribunal and that Hussein is distinguishable because in the current matter, the applicant specifically advised the respondent that he sustained no injuries in the accident.

14Typically, when there is a dispute between the parties as to the facts surrounding notification, the adjusters’ log notes are a helpful resource. The applicant provided a copy of the log notes with her submissions. The copy of the log notes provided to the applicant, however, have been redacted from the initial contact up to the date of the case conference. The reason provided for the redactions is: “redactions up to the date of the Case Conference” which I find is not a valid legal basis for the redaction of this information.

15As part of its reply, the respondent disclosed the log notes from the initial contact on March 31, 2023. I am cognizant that these log notes were not disclosed to the applicant prior to the respondent’s reply submissions; they were deliberately redacted. Procedural fairness would have required the respondent to disclose this information to the applicant in advance so that he would have had the opportunity to review, respond and present his case fully and fairly. The applicant has a right to know the case to be met and have a decision affecting his 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).

16That being said, the applicant has not raised any objection to this new disclosure, nor has he filed a Notice of Motion with the Tribunal to seek any relief against its late production. For this reason, and also because I find the production of these log notes do not result in any prejudice to the applicant (as per the reasons that follow), I accept to admit them as evidence at this preliminary issue hearing.

17The log notes indicate that on March 31, 2023, two days following the accident, the applicant’s father contacted the respondent to notify it of the accident. The respondent then had a conversation with the applicant, who was the driver of the vehicle at the time of the accident. The log notes indicate that the applicant stated:

“I was going straight approached the intersection, and the third party came from behind and rear ended, the weather was clear [and] dry. NO injuries to anyone. The vehicle is not drivable.”

18The vehicle was ultimately found to be non-driveable and non-repairable. It was found to be a total loss.

19The respondent submits that Hussein is distinguishable from the facts herein because the applicant initially reported that he had sustained no injuries. It relies on Belyak v. Definity Insurance Company, 2025 CanLII 39301 (ON LAT), Raja v. Economical Mutual Insurance Company, 2025 CanLII 35963 (ON LAT) and Rana v. Economical Insurance Company, 2025 CanLII 102185 (ON LAT). In each of these decisions, the Tribunal considered Hussein and found that the insurer had inquired into whether the insured had sustained any injuries, and the insured responded in the negative. These decisions found that the insurers satisfied their statutory obligations pursuant to section 32(2).

20I agree with the respondent that I am not bound by M.O., the Tribunal decision the applicant relies upon. Likewise, I am not bound by the above Tribunal decisions relied on by the respondent.

21The respondent has not elaborated on how the fact that the applicant initially reported he had sustained no injuries due to the accident is distinguishable from Hussein. I recognize nonetheless that the Division Court in Hussein makes the following statement at paragraph 40:

In my view the notice requirement under the [Tribunal] was met when the Insured advised the Insurer one day after the accident that he had been in an accident. A reasonable insurer would assume that an insured who has been in an accident intends to access all the benefits available to them under their policy. If the insured has been injured in the accident, this will include accident benefits. If the Insurer in this case wished to clarify which specific benefits the Insured intended to access, the Insurer could have asked the Insured whether he sustained any injuries. As the Insurer chose not to ask any more questions, it should have acted on the assumption that the Insured would want to apply for accident benefits. At that point, the Insurer should have complied with its obligations under s.32(2) of the [Schedule], which included sending out the necessary application forms and an explanation of the benefits available. This is an interpretation that fosters the consumer protection purpose of the [Schedule]. [emphasis mine]

22I agree with the applicant that the insurer failed in its duty to provide the accident benefits package as required by section 32(2). The Court’s reference to asking an insured whether they sustained injuries per para. 40 of Hussein, in my view, was made by the Court in the context of clarifying which specific benefits are available. I find that Hussein does not state that a respondent’s duty to provide the appropriate OCF-1 from, a written explanation of the benefits available, or information to assist the person in applying for benefits is dismissed if the applicant advises the respondent that he did not sustain injuries at the time of the initial notification.

23I find that, in these circumstances, speaking to the applicant once was insufficient to discharge the respondent’s obligation outlined in section 32(2) of the Schedule. Hussein provides that insurers must always consider that accident victims are in a vulnerable position, particularly in the aftermath of an accident. In this case, the respondent failed to appreciate that concept and never made any additional inquiries into whether the applicant was injured in the accident, nor did it provide him with an accident benefits package. Instead, it relied on a single statement provided two days following the accident while it is commonly accepted that injuries and their sequalae may not become apparent until days or weeks following an accident.

24I find this particularly relevant in these circumstances where the applicant was rear-ended by a transport truck causing a collision resulting in the non-operational, non-repairable outcome of the vehicle; the conclusion of which was that the vehicle was a total loss. It would have been reasonable that injuries, although not immediately reported, could have developed in the days and weeks following the accident. Relying on a single statement is not keeping with the guidance in Hussein. To discharge its obligation under section 32(2), the respondent ought to have made additional inquiries into the applicant’s status. This could have been satisfied as simply as by sending the accident benefits package to the applicant with the requisite information on how to claim benefits.

25The respondent concedes it did not provide the applicant with an accident benefits package. As I have found above, the respondent failed to discharge its duties pursuant to section 32(2).

26For these reasons, I find 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, pursuant to section 32(5). As such, it is not necessary to determine whether the explanation for the delay in submitting his OCF-1, provided by the applicant, was reasonable. The applicant may proceed with his application.

ORDER

27For the above reasons, I find:

i. 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.

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