Licence Appeal Tribunal File Number: 25-000621/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:
[AAS], A minor by her litigation guardian, [AAS]
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Lisa Holland
APPEARANCES:
For the Applicant: Mobina Khan, Counsel
For the Respondent: Bruce Keay, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1[AAS], parent on behalf of a minor, the applicant, has a claim arising out of an automobile accident on June 28, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The respondent, Co-operators General Insurance Company denied benefits on the basis that the application for accident benefits was delayed without a reasonable explanation. The applicant disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
3The 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 in the Schedule?
RESULT
4The applicant is not statute-barred from proceeding with her application before the Tribunal.
ANALYSIS
Background
5On June 28, 2022, when she was seven years old, the applicant was involved in a motor vehicle accident, wherein her father, the litigation guardian was the driver, and her mother and two siblings were also passengers. Her parents have pursued their own claims for accident benefits in a timely manner. On June 29, 2022, the insured, [HAS] notified the respondent through his own interpreter, that his family was involved in an accident, and he advised the respondent that they speak Arabic. In subsequent conversations on July 20, 2022 and July 28, 2022, [HAS] provided his own interpreter to speak to the respondent. On July 20, 2022, [HAS] advised the respondent that the applicant, her parents and two siblings were involved in the accident.
6Subsequently, the respondent received the application for accident benefits (“OCF-1”), which lists the applicant’s injuries as neck and back pain. At the case conference, the respondent raised a preliminary issue that the minor applicant is barred from proceeding with her claim because she did not comply with the timelines set out under s. 32(1) of the Schedule.
7Since the applicant was seven years old when the accident occurred, the two-year limitation period does not begin to run until she reaches the age of majority. Section 6 of the Limitations Act, 2002, S O 2002, c 24 states that the two-year limitation period in s. 4 of that Act does not start to run during any time that the claimant is a minor. There is no similar suspension of a limitation period for a minor in either s. 55 of the Schedule or the Insurance Act.
8However, s. 34 of the Schedule provides that the applicant’s failure to comply with the time limit in s. 32 does not automatically disentitled her to benefits as long as she has a reasonable explanation for the delay.
The Law
9Section 32(1) of the Schedule requires an insured person to inform an insurer of their intention to claim accident benefits within seven days of the accident, or as soon as practicable after.
10Once 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 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.
11Section 34 states that if the insured person does not comply with the time limits prescribed under Part VIII of the Schedule, the insured person may still be entitled to benefits if they have a reasonable explanation for the delay.
12Section 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.
13The 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:
- An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.
- The onus is on the insured person to establish a “reasonable explanation”.
- Ignorance of the law alone is not a “reasonable explanation”.
- 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.
- The lack of prejudice to the insurer does not make an explanation automatically reasonable.
- 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.
The applicant did not comply with section 32(1)
14The respondent submits that the applicant failed to notify the insurer of her intention to apply for benefits or submit an OCF-1 form until March 26, 2024, which was 21 months after the June 28, 2022 accident. On April 8, 2024, after receiving the OCF-1, the respondent requested a reasonable explanation for the delay, as well as medical and other information about the applicant.
15The respondent relies on the OCF-1’s dated July 21, 2022 of the applicant’s parents and the OCF-1 dated March 26, 2024 of her brother to support the fact that the applicant had no explanation for the delay in notifying the respondent. The respondent argues that it had multiple conversations with the applicant’s father, [AAS], during which he did not mention the applicant’s injuries. The respondent submits that the applicant’s father submitted an OCF-1 to the respondent within one month after the accident. The respondent submits that the applicant’s mother and brother also submitted an OCF-1, and they are familiar with making a claim for accident benefits.
16The respondent argues that they did not receive notice that the applicant was involved in the accident until July 20, 2022, despite receiving notice of the accident on June 29, 2022 from the applicant’s family. The respondent submits that in a subsequent conversation with the applicant’s family on July 28, 2022, there was no mention of the applicant’s injuries. The respondent further submits that the clinical notes and records (“CNRS”) of the applicant’s family physician, [AS] do not mention the accident, or any accident-related injuries.
17The applicant submits that the respondent received notice of the accident on June 29, 2022, and it did not provide an application for accident benefits to the applicant. The applicant submits that since the respondent failed to provide the applicant with an OCF-1 and explain her right and the process to claim benefits, she was not advised that she could make a claim for her injuries. The applicant further submits that she was not initially aware that she required treatment for her injuries. The applicant submits that there is no requirement that she provide notice of her injuries when the accident was first reported to the respondent.
The OCF-1 was filed late
18The 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 her submissions on whether she has a reasonable explanation for the delay in submitting her OCF-1 pursuant to s. 34 of the Schedule.
The applicant has established a reasonable explanation for the delay
19I find that the applicant has established a reasonable explanation for the delay. The applicant was seven years old when the accident occurred, and she has until two-years after she reaches the age of majority to initiate a tort claim. I find that the applicant would suffer irreparable prejudice if she is statute-barred from pursuing her claim for accident benefits while she remains under the legal age of majority.
20The applicant submits that the applicant is a minor and she is dependent on her parents to recognize her injuries and submit an OCF-1 to the respondent. The applicant further submits that since the respondent did not send an application for accident benefits to the applicant, she did not know that she could make a claim. The applicant submits that there is no evidence of prejudice to the respondent because they have access to the relevant records to investigate the claim.
21The respondent submits that the applicant has not provided a reasonable explanation that is worthy of belief. The respondent argues that the applicant’s parents were aware of the right and process to claim accident benefits, and her parents and her brother made claims for accident benefits ion a timely manner. In addition, the respondent argues there is no evidence that the applicant sustained injuries as a result of the accident. The respondent submits it has been prejudiced by not obtaining the applicant’s medical information immediately after the accident and conduct s. 44 assessments, surveillance or other investigation.
22The 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 minor applicant’s age at the time of the accident is not disputed, and the respondent had notice of the applicant’s parents’ claims within one month of the accident. I find that the respondent had the opportunity to obtain information about the minor applicant’s involvement in the accident and reach out to her guardians to provide them with an application. The explanation is clearly credible and worthy of belief as the applicant could not have been expected to act since she is a minor. Although ignorance of the law is not reasonable, the minor applicant is entirely reliant on her guardians, and her injuries were not immediately apparent.
23I have also taken into account the personal characteristics and reasonable person standard set out in Horvath. I am not satisfied that the minor applicant has forfeited her rights to a claim because her parents and brother retained legal representation and took steps to submit an OCF-1 for their own accident benefits claim. I find that since the applicant was seven years old at the time of the accident, there is a reasonable explanation for delay, given not only her lack of verbal communication but also having immigrant parents with limited English language skills.
24I 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 her claim, since the hardship to the minor applicant exceeds any prejudice to the respondent.
25I find that the minor applicant provided a reasonable explanation for delay under s. 34 and she may proceed with her claim at the Tribunal because she remains under the legal age of majority and her right to initiate a claim should not be limited by her guardians’ ability to recognize her symptoms.
Section 55
26Pursuant 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.
27As outlined above, I find that although the applicant did not submit a completed OCF-1 within the timelines prescribed by the Schedule, she remains under the legal age of majority, which constitutes a reasonable explanation for the delay. Accordingly, I find that the applicant is not statute-barred from proceeding with her application.
ORDER
28The applicant may proceed with her application.
Released: June 2, 2026
__________________________
Lisa Holland
Adjudicator