Licence Appeal Tribunal File Number: 25-008149/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:
Virginia Voll
Applicant
and
Definity Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Trina Morissette, Vice-Chair
APPEARANCES:
For the Applicant:
Nicolas Jeganathan, Counsel
For the Respondent:
Melinda Baxter, Counsel
HEARD:
In writing
OVERVIEW
1Virginia Voll, the applicant, was involved in an incident on May 7, 2024, 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 issues to be decided are:
i. Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?
ii. Is the applicant barred from proceeding to a hearing as she failed to notify the respondent of the circumstances giving rise to a claim for benefits no later than the seventh day after the circumstances arose or as soon as practicable after that day?
RESULT
3The applicant has not proven on a balance of probabilities that the incident of May 7, 2024 was an “accident” as defined in section 3(1) of the Schedule.
4The applicant did not notify the respondent of the incident within the timeline prescribed by the Schedule and has not provided a reasonable explanation for the delay.
5The applicant is barred by section 55(1) from proceeding with her application before the Tribunal.
BACKGROUND
6On May 7, 2024, the applicant, aged 75 years at the time, was walking on a paved path in a park near her home. Suddenly, when she came within the vicinity of a parked van, a dog leaped out of the open window and attacked her. The dog bit the applicant’s right arm and hand and knocked her to the ground. Reportedly, the dog’s owner, who was asleep in the van when the incident occurred, woke up and removed the dog. Ambulance personnel attended the scene and took the applicant to the hospital where she underwent emergency wound repair and treatment, followed by a prolonged recovery involving hand therapy, orthopaedic intervention, and attendant care support.
7The applicant sustained soft-tissue and nerve injuries, including a large laceration and partial amputation of her right small finger, a bite wound to her forearm and subsequent functional impairments of her dominant hand. She alleges the incident left her with permanent loss of function, chronic pain, and psychological distress.
PROCEDURAL ISSUE – Late filing of applicant’s responding submissions
8In its reply submissions, the respondent submits that the applicant filed her responding submissions late and in contravention of the Case Conference Report and Order (“CCRO”). The respondent argues that the applicant filed her submissions on October 28, 2025, rather than on October 27, 2025, and provided no explanation for the delay.
9The respondent submits that it has been prejudiced by the late submissions “due to the very tight timelines put in place for the exchange of submissions allocated”. Pursuant to Rule 9.3 of the Licence Appeal Tribunal Rules, 2023 (“the Rules”), the respondent requests that the applicant’s submissions be struck, or, at the very least, the respondent requests that the applicant’s non-compliance be taken into consideration by the Tribunal in rendering its decision.
10I agree that the applicant filed her submissions one day late. Timelines are important and should be adhered to by all parties. However, 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.
11I find that the delay of less than twenty-four hours caused minimal prejudice to the respondent and does not warrant consideration in the rendering of the Tribunal’s preliminary decision. The delay is minimum, and it did not prevent the respondent from filing its reply submissions on October 30, 2026, whereas, the prejudice to the applicant, if I were to exclude her submissions, would greatly exceed any prejudice to the respondent for this minimal delay. The respondent’s request to strike the applicant’s responding submissions is denied.
PROCEDURAL ISSUE – Motion to strike portions of the respondent’s reply submissions
12On January 23, 2026, the applicant filed a Notice of Motion with the Tribunal for an order to strike paragraphs 8 to 10, 15, and 21 of the respondent’s preliminary issue reply submissions “due to inconsistencies […] and the attempt to introduce new evidence and authorities at the reply stage that were not mentioned in the respondent’s initial submissions.” Alternatively, the applicant requests leave to provide a limited sur-reply confined to arguments pertaining to dogs as chattel and the Dog Owners Liability Act, R.S.O. 1990, c.D.16, with direction from the Tribunal.
13The applicant argues that the paragraphs in question provide the respondent’s position and authorities on whether a dog is a chattel and in what circumstances. She argues that making the argument at the stage of its reply submissions is improper as the parties had previous discussions and exchanged caselaw prior to the preliminary issue hearing on this issue and therefore, the respondent knew the applicant would be raising the argument. Instead, the respondent elected to strategically not address the argument until its reply submissions
14She states that the respondent had ample notice that her “dog as chattel” theory and supporting authorities would be advanced and argues that where an issue is known to be raised by one party, the proper procedure is to “join issue in chief”, not refrain from making arguments until after the responding party has provided its responding submissions.
15I do not accept the applicant’s interpretation of the proper use and purpose of reply submissions. Each party is expected to make their own case; to put forward the arguments, evidence and authorities on which they rely to make their case. There is no obligation for the respondent to include in its initial submissions responses to arguments the applicant may or may not make in her responding submissions. Parties have submission length limits and here, the respondent put forward its initial arguments, the applicant followed with her responding submissions which included her reliance on “a dog being a chattel theory”, and the respondent responded to this argument in its reply submissions. There is nothing improper with this.
16Consequently, I find that the reply was consistent with established procedural rules and does not constitute an unfair introduction of new evidence nor do I find this is a situation where the respondent is seeking to case-split, as the applicant contends. The applicant’s motion is denied.
17In any event, as discussed in my reasons below, whether a dog is classified a “pet”, a “chattel”, “personal property”, “cargo” or “content” has no bearing on the determination of whether the incident of May 7, 2024, is an “accident” pursuant to the Schedule.
ANALYSIS
The incident is not an “accident” as defined in section 3(1) of the Schedule
18For reasons that follow, I find that this incident does not meet the definition of an “accident” as defined in the Schedule.
19The Schedule provides that insurers are liable to pay certain benefits to or on behalf of insured persons who sustain an impairment as a result of the use or operation of an automobile. Section 2(3) of the Schedule provides that the benefits set out in the Schedule shall be provided in respect of “accidents”. Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment.”
20The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries.
21In Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 (“Caughy”), the Ontario Court of Appeal confirmed the two-part test to determine whether an incident is an “accident” as follows:
a. Purpose test: did the incident arise out of the use or operation of an automobile? and
b. Causation test: did the use or operation of an automobile directly cause the impairment?
The Purpose Test - Did the incident arise out of the use or operation of an automobile?
22I find the purpose test has not been met.
23As set out in Greenhalgh v. ING Halifax Insurance Company, 2004 CanLII 21045 (ONCA) (“Greenhalgh”) at paragraph 11, the purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put.” Put another way, for what “purpose” was the vehicle being used at the time of the incident?
24The respondent submits that the incident did not involve the use or operation of a vehicle. Rather, the dog escaped from a vehicle that was in the vicinity of the park’s path and attacked the applicant. It argues there is a complete absence of a connection or intention to use or operate a vehicle, thereby not meeting the requirements of the purpose test.
25The applicant submits that the vehicle was being used to transport and store the chattel to the park and that it is fundamental property law that animals, including dogs, are legally classified as chattels. The applicant argues that she was injured by chattel that was launched from a vehicle and therefore, the incident occurred as a direct result of the vehicle. The injuries arose from the ordinary and well-known use of a vehicle, namely the transport and storage of chattel. But for that use, the chattel would not have been present or able to inflict injury.
26I find it unnecessary to determine the classification of the dog as a “chattel” or anything else. Here, I agree with the applicant that confining and/or transporting a family pet is an ordinary and well-known activity for which automobiles are put (although the applicant references the dog as “chattel” and “confining” as “storing”). However, at the time of the incident, the dog was no longer being “stored” or transported; the dog had leaped out through an open window, run down the path and attacked the applicant. In my view, the activity of confining and/or transporting the dog in the vehicle was no longer in play and there is no information that the use or operation of the vehicle had any other connection to the attack.
27The applicant relies on Caughy and submits that the Court of Appeal found that parking and unloading activities fall within the scope of a vehicle’s use or operation, emphasizing that a vehicle is designed to be parked.
28I find that the facts in Caughy are distinguishable from the facts here. In Caughy, the insured tripped over a motorcycle which was parked in a walkway between trailers at a campsite. It was found that the temporary parking of the motorcycle on the walkway constituted an ordinary or well-known use of the vehicle and was the dominant feature in the incident. Here, the applicant did not hit or trip on any part of the vehicle; she was attacked by a dog that leaped through an open window of the vehicle and ran towards her, and I do not accept the applicant’s premise that this should be considered an “unloading activity”. As I noted above, I find that in these circumstances, there is a lack of nexus between the use and/or operation of the vehicle and the attack.
29In my view, the purpose test has not been met. In any event, even if the applicant satisfied her onus that the purpose test had been met, I find that the applicant has not satisfied the second part of the test regarding causation.
The Causation Test – Did the use or operation of the automobile directly cause the impairment?
30As set out in Greenhalgh, the causation test requires me to determine if the ordinary and well-known activity was the direct cause of the applicant’s impairments by focusing on the following considerations:
a. whether the incident would not have occurred “but for” the use or operation of the motor vehicle;
b. whether there was an intervening cause that cannot be said to be part of the ordinary course of the use or operation of the motor vehicle; and
c. whether the use or operation of the motor vehicle was the dominant feature of the incident.
31The applicant submits that the vehicle directly caused her injuries. She argues that the vehicle stored and transported the chattel, leaving a window open, and setting in motion the precise sequence of events that led to the incident. The chattel’s behaviour was not an independent or unexpected intervening act, but rather, it was a foreseeable consequence of housing potentially dangerous chattel in the vehicle. She submits that when a dog is transported in a vehicle, it must be treated under the law as cargo and the resulting injuries were therefore part of the vehicle’s operation, not an independent intervening act.
32I am not satisfied that the applicant has shown that ‘but for’ the use or operation of the vehicle, she would not have sustained her injuries. Although I agree with the applicant that had the vehicle not been in that area when the applicant was walking by, and had the window not been open, the dog would not have leaped out and attacked her. However, as the applicant claimed, the use and operation of the vehicle was the “storing” and the transporting of the dog. Once the dog leaped out, the vehicle’s use and operation were no longer relevant to the injuries the applicant suffered.
33The applicant likens the incident to an unsecured piece of lumber falling off the back of a vehicle. I do not accept this comparison. The piece of lumber is an inanimate object whereas the dog has cognitive abilities and can be driven by stimuli.
34I also disagree with the applicant that the incident of the dog attack - what she described as “potentially dangerous chattel” - was a foreseeable consequence and not an independent act. As noted in Greenhalgh, an intervening act will absolve the insurer of liability if it cannot fairly be considered a normal incident of the risk created by the use or operation of the automobile. Although dogs leaping out of a vehicle’s open window is not unheard of, I do not find it to be a normal incident of the risk created by the use or operation of the automobile as described in Greenhalgh. Furthermore, in my view, a dog leaping out of an open window and attacking an individual is an even less normal expected incident or risk of “storing” or transporting a family pet. I find it to be an intervening cause.
35Greenhalgh also provides direction on the “dominant feature” consideration. The Court requires an adjudicator to determine what element of an incident is “the aspect of the situation that most directly caused the injuries.” For instance, in Greenhalgh, the incident involved the insured person suffering from severe frostbite after getting her vehicle stuck on a country road. In dismissing the claim of an “accident”, Justice Labrosse found that “the ‘dominant feature’ of the insured’s injuries could be best characterized as exposure with the elements, and that the use of the motor vehicle was ancillary to that injury.”
36I find that the attack that occurred after the dog leaped out of the window is an intervening act and this intervening act is the dominant feature which caused the applicant’s injuries. The fact that the dog was initially “stored” and transported by the vehicle was ancillary to those injuries.
37Consequently, I find that the applicant has failed to establish that the use or operation of the vehicle was the direct cause of her injuries. Rather, I find that the injuries, which resulted in her impairments, were caused by an intervening act, namely, the dog attack.
38I therefore find the incident does not meet the causation test of an “accident”. Any impairments the applicant sustained as a result of the incident did not result from an “accident” as defined by the Schedule.
The applicant has not provided a reasonable explanation for her delay in notifying the respondent of her intention to claim accident benefits
39Section 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.
40Once 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.
41There is no dispute that the applicant first notified the respondent of her intention to apply for accident benefits when she submitted her completed OCF-1 on December 5, 2024, seven months after the incident. On December 13, 2024, the respondent confirmed receipt of the OCF-1 and denied her claim because it found the incident was not an accident and because she failed to notify it within seven days.
42Section 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.
43The applicant’s explanation for not notifying the respondent pursuant to section 32(1) is two-fold: first, she submits that most people do not understand the distinction between a tort claim, a property claim, and a claim for statutory accident benefits. It is therefore entirely unrealistic to expect an elderly layperson, knocked down and mauled by a dog leaping from a parked vehicle, to appreciate that such an event might qualify as an “accident” under the Schedule. Secondly, she submits that she was recovering from traumatic hand injuries. She acted in good faith and provided notice as soon as practicable. Her serious injuries, advanced age, and “reliance on others” constitute a credible and reasonable explanation under section 34 and pursuant to an unpublished decision of the Tribunal in Buttenham v. Northbridge General Insurance Company, 2024 ONLAT 23-008795/AABS (“Buttenham”). I note that although the applicant cites the unpublished decision in Buttenham, she did not provide a copy of her authority to the Tribunal.
44For the reasons that follow, I find that the applicant’s explanation for her delay is not reasonable.
Ignorance of the law
45As set out in Horvath, I find that ignorance of the law alone is not a reasonable explanation. Even if I were to accept it as an explanation for the delay in notification, I note that the applicant’s OCF-1 is dated November 6, 2024, yet she only submitted it on December 5, 2024 which suggests that the applicant was aware, at least on November 6, 2024, that she intended to apply for accident benefits. Yet, the applicant continued to delay the submission of her OCF-1 – and therefore delaying notification of the incident – by an additional month.
Injuries
46I also find that the applicant’s explanation that her injuries, including her psychological distress, is not supported by the evidence. The applicant submitted photographs of the injury to her pinky finger however, she did not submit medical documentation including documentation that would support her argument that her impairments prevented her from satisfying the requirements of section 32(1).
47In my view, it is not sufficient to allege an inability to satisfy the notification requirements of the Schedule without medical documentation to support it. Submissions are not evidence. Without medical documentation to support that the applicant was not able to notify the respondent of her intention to seek accident benefits, I find that the applicant has not satisfied her onus of providing a reasonable explanation for her delay as per section 34.
The Schedule is consumer protection legislation
48The applicant relies on a decision of the Tribunal in Simmers v. Wawanesa Mutual Insurance Company, 2025 ONLAT 23-006025/AABS (“Simmers”) and submits that the Schedule exists to protect claimants who, by definition, have been injured and are often in crisis. She argues that insurers must recognize “the reality that consumers who have motor vehicle accidents are in a vulnerable position, particularly in the period immediately following the accident.” She adds that as per Simmers, the insurer must make further inquiry once notified of a possible claim.
49I agree that the Schedule is consumer protection legislation, see: Davis v. Aviva General Insurance Co., 2024 ONSC 3054 (“Davis”) and I acknowledge the direction provided by the Court in Davis. However, this does not allow the Tribunal to disregard or circumvent the established guiding principles set out in Horvath to determine whether the applicant has provided a reasonable explanation for her delay in notifying the respondent of her intention to claim accident benefits. I also note that the applicant’s reliance on Simmers, where she suggests the insurer must make further inquiries once notified of a possible claim, is misplaced. Here, the applicant did not notify the respondent of the claim until she submitted her OCF-1. The respondent could therefore not have made any inquiries until it was notified on December 5, 2024.
Prejudice v. hardship
50An 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 limits at section 32. The applicant submits that the respondent’s reliance on technical non-compliance of section 32(1) ignores the remedial purpose of the Schedule and the well-established case law recognizing that minor or excusable delay does not disentitle a claimant where no demonstrable prejudice exists.
51I do not find a seven-month delay to be minor especially when the evidence shows that the applicant knew of her intention to claim accident benefits at least a month earlier but failed to act. The respondent submits that the delay has caused it prejudice as it has deprived it the opportunity to obtain medical documentation, information regarding the applicant’s injuries, and the ability to contemporaneously investigate and assess her claim. Taking into account the principles of Horvath, I find that the applicant has not provided medical documentation to support that she was unable to fulfil the requirements of section 32, ignorance of her rights is not sufficient on its own, and the delay of seven months in notifying the respondent is significant. The delay has caused prejudice to the respondent in fulfilling its obligations to investigate and assess her claim, which, in the circumstances, I find outweigh the hardship to the applicant.
52For these reasons, I find that the applicant has not met her onus to establish a reasonable explanation for her delay in notifying the respondent.
Section 55
53Pursuant to section 55(1)1 of the Schedule, an insured person shall not apply to the Tribunal under section 280(2) of the Insurance Act if the insured person has not notified the insurer of the circumstances giving rise to the claim or has not submitted an application for the benefit within the time limits prescribed in section 32.
54As outlined above, I find that the applicant did not notify the respondent within the timelines prescribed by the Schedule and she has not provided a reasonable explanation for the delay. Accordingly, I find that the applicant is statute-barred from proceeding with her application before the Tribunal.
ORDER
55The applicant has not established on a balance of probabilities that the incident that took place on May 7, 2024 was an “accident” as defined in section 3(1) of the Schedule.
56The applicant did not notify the respondent of the incident within the timeline prescribed by the Schedule and has not provided a reasonable explanation for the delay.
57The applicant is barred by section 55(1) from proceeding with her application before the Tribunal. The Tribunal shall vacate any date that has been scheduled for the substantive issues hearing.
58The application is dismissed.
Released: February 5, 2026
Trina Morissette
Vice-Chair