Licence Appeal Tribunal File Number: 25-007103/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:
Abdelhamid Messaoudi
Applicant
and
Definity Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Trina Morissette, Vice-Chair
APPEARANCES:
For the Applicant:
Ahmad Khan, Cousel
For the Respondent:
Damien Van Vroenhoven, Counsel
HEARD:
In writing
OVERVIEW
1Abdelhamid Messaoudi, the applicant, was involved in an automobile accident on November 27, 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 ISSUES IN DISPUTE
2The preliminary issues are:
i. Is the applicant barred from proceeding to a hearing of his application because he 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?
ii. Is the applicant barred from proceeding to a hearing of his application because he failed to submit his application for benefits (OCF-1) within the time prescribed in the Schedule?
RESULT
3The applicant is barred by section 55(1) from proceeding with his application before the Tribunal.
PROCEDURAL ISSUE – Failure to comply with the Case Conference Report and Order dated September 24, 2025
4This matter involves an applicant who filed applications for accident benefits with two separate insurance companies, the respondent and TD Insurance (“TD”). Following a case conference held on September 24, 2025, the Tribunal issued a Case Conference Report and Order (“CCRO”) on September 26, 2025. Paragraph [8]i. of the CCRO states that the applicant shall provide the following to the respondent no later than 14 calendar days from the case conference:
(a) Complete file pertaining to the claim made to [TD], including e-mails, faxes and fax confirmations, correspondences, and OCF forms; and
(b) Signed/commissioned affidavit as to why the applicant filed two applications for accident benefits OCF-1s to two different insurance companies for the same accident of November 27, 2023.
5Pursuant to paragraph [11] of the CCRO, the applicant was to serve and file his submissions, evidence and authorities on the preliminary issues no later than November 24, 2025. The applicant served and filed his material on December 11, 2025, seventeen days later.
6In its reply submissions, the respondent submits that the applicant is in non-compliance with the CCRO. Although the applicant submitted some documentation from the accident benefits file with TD, there is no indication that the documentation is complete. The applicant also did not provide a sworn affidavit with an explanation as to why he applied for accident benefits with two insurers, as ordered by the CCRO. The respondent further argues that the applicant served and filed his submissions seventeen days late, in contravention to the timelines set out in the CCRO.
7The respondent submits that the applicant is in non-compliance with the CCRO, that he has provided no explanation for his non-compliance, and did not request relief of the Tribunal to amend the provisions of the CCRO. 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, in the alternative, that they be given little weight.
8I agree with the respondent that the applicant’s submissions were filed late. Timelines are important and should be adhered to by all parties. However, Rule 3.1 requires a liberal interpretation of the Rules to facilitate a fair, open and accessible process and to allow for effective participation by all parties. Bearing this in mind, I am not persuaded that the respondent was prejudiced by the late submissions as it has not identified any prejudice that resulted from the late-filed submissions.
9The CCRO stated that the respondent was to serve and file its reply submissions by December 4, 2025, which, due to the applicant’s delay, was not possible. The respondent filed its reply submissions on December 15, 2025. 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. I find that procedural fairness here requires me to accept both the applicant’s responding submissions and the respondent’s reply submissions.
10Regarding the non-compliance of the production of the entire TD accident benefits file and an affidavit sworn by the applicant explaining why he filed claims with two insurance companies, I agree with the respondent that no affidavit was provided and although some documentation pertaining to the TD claim was submitted, it does not appear that the complete file was provided. I will consider the applicant’s non-compliance with the CCRO and assigned weight to the evidence submitted, accordingly.
ANALYSIS
11Section 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.
12Once 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.
13Information provided through the adjuster’s log notes and the Application for Accident Benefits (OCF-1) shows that, on November 27, 2023, the applicant was a passenger in his friend’s vehicle when it was t-boned in the parking lot of a Tim Horton’s.
14The respondent submits that there are several issues that undermine the credibility and reasonableness of the applicant’s explanation for the delayed notification and submission of the OCF-1 and that, without production of the affidavit as ordered by the CCRO, an adverse inference should be drawn. The respondent relies on Caldwell v. Trillium Mutual Insurance Company, 225 CanLII 72412 (ON LAT) and submits that timelines under section 32 exist so that claims can be adjusted and resolved fairly and promptly, based on timely information. With the time that elapsed prior to receipt of the OCF-1, the respondent argues that it cannot assess the applicant’s then-claimed injuries or the treatment expenses the applicant incurred. The respondent further submits that even if the Tribunal finds that the prejudice to the respondent does not outweigh the hardship to the applicant, any imbalance should not sway a negative finding regarding the reasonableness of the applicant’s inaction, as per K.H.
15The applicant submits that his counsel, in a “good faith error”, submitted the OCF-1 to TD. Despite this error, the applicant submits that TD received comprehensive notice and documentation, engaged fully with the claim, and adjusted it. The OCF-1 was then correctly provided to the respondent on March 15, 2024. This preliminary issue, he argues, is the result of a priority dispute between the respondent and TD which should not result in harm to the applicant. The applicant submits that the delay was reasonable, it caused no prejudice to the respondent, and he relies on the consumer protection mandate of the legislation which he argues must prevail over a “technical filing issue arising from an inter-insurer priority dispute”.
The applicant did not notify the respondent of the accident within seven days
16The applicant submits that he “reported the matter immediately” to the respondent but has provided no evidence to support this.
17The adjuster’s log notes indicate that, on December 13, 2023, sixteen days following the accident, the applicant’s insurance broker contacted the respondent on the applicant’s behalf, to report the loss. On December 15, 2023, the respondent attempted to speak to the applicant by telephone, but when the call was not answered, the respondent left a voicemail message. On the same day, the respondent sent the accident benefits package to the applicant by regular mail. A log note of December 19, 2023 states that “after multiple attempts” to contact the applicant, the respondent successfully spoke to him by telephone. Following this discussion, the respondent sent the accident benefits package to the applicant’s email address.
18Other than the applicant’s submission that he contacted the respondent “immediately” following the accident, he makes no further submissions on the issue of notification. I note there is no evidence that the applicant’s condition, or any injuries sustained in the accident, prevented him from contacting the respondent within the timeframe of section 32(1). With no further evidence or information for the delay, I find that the applicant failed to notify the respondent of the accident within seven days, pursuant to section 32(1) of the Schedule.
The applicant did not submit his completed OCF-1 within the timeframe stipulated by section 32(5)
19The parties do not dispute that the applicant submitted his OCF-1 beyond the 30-day timeframe of section 32(5). The applicant submitted his OCF-1 to the respondent on March 15, 2024, being 87 days after receipt of the package. As such, I find that the applicant did not satisfy his obligation to submit a completed OCF-1 within the timeline set out by the Schedule.
The explanation for the delays provided by the applicant is not reasonable
20Section 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 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.
21In an email to the respondent dated March 28, 2024, applicant’s counsel stated that “the delay was partly due to us initially sending information to the incorrect insurance company as client and the driver of the vehicle had different insurers.” In his written submissions, the applicant submits that an “initial good faith error” led his counsel to notify and submit documentation to TD believing it was the correct insurer.
22As noted above, the respondent provided the applicant with an accident benefits package in December 2023. On or about January 5, 2024, the applicant retained counsel. On January 5, 2024, applicant’s counsel contacted TD – rather than the respondent – and provided notice of the accident.
23I am not persuaded that the decision to notify and claim accident benefits with TD was a “good faith error” as the applicant suggests. The OCF-1 submitted to the respondent on March 15, 2024 is dated January 5, 2024. This is the date when the applicant retained counsel. This suggests that the applicant provided his counsel with the accident benefits package he received from the respondent which clearly identified the respondent as the correct insurer. I also note that during the conversation between the applicant and the respondent’s adjuster on December 19, 2023, a log note confirms that the applicant was specifically told to send the OCF-1 to the respondent and not to TD.
24The applicant also submits that it was on March 15, 2024 that the “error was discovered” and that he promptly submitted the completed OCF-1 to the “correct insurer”. I do not find this explanation credible as the evidence does not support the applicant conceded an error, nor does it show he attempted to correct the error moving forward.
25The applicant contends that his error was discovered and rectified on March 15, 2024, however, documentation submitted shows that the applicant continued to submit claims to TD following this date. Three days after the “error was discovered”, on March 18, 2024, an OCF-18 for chiropractic services was submitted to TD, and in May 2023 (exact date of submission unknown), another OCF-18 was submitted to TD. TD responded to the second OCF-18 on May 16, 2024. Furthermore, on May 23, 2024, TD acknowledged receipt of the applicant’s OCF-1 dated May 1, 2024 (I note that a copy of this OCF-1 was not included in the applicant’s documents). It was not until May 27, 2024, that applicant’s counsel advised TD of his mistake. Based on the evidence, I find that even if the applicant only learned on March 15, 2024 that he incorrectly submitted a claim to the wrong insurer, he knowingly continued to seek accident benefits from both insurers during the same period.
26The applicant further argues that his application should not be barred because he provided the details of the accident and all other documentation to TD as of January 5, 2024. He relies on Echelon General Insurance Co. v. Unifund Assurance, 2025 ONCA 324 and submits that a priority dispute should not harm the applicant. Here, he submits that TD approved his claims but that, once transferred to the respondent, his benefits were denied. The applicant also submits that the respondent has not been prejudiced by the delay. He claims all information was provided to TD who actively investigated and adjusted the claim.
27As I understand the applicant’s argument, he contends that since he provided all documentation to TD and TD was able to investigate and adjust the claim appropriately, a transfer of priority to the respondent will allow the respondent to benefit from the information available through TD’s file. I find this argument misdirected as the applicant has yet to produce the complete TD file. Also, the applicant specifically relies on two Explanation of Benefits (“EoBs”) received by TD which state that despite not receiving a completed OCF-1, the OCF-18s submitted were approved by TD. The applicant submits that this demonstrates that “the lack of the form did not hinder their ability to assess the claim or provide benefits.”
28I do not accept the applicant argument that a completed OCF-1 was not required for TD to assess the OCF-18s submitted as the applicant suggests. The two EoBs referenced by the applicant also state that, although approved, payment of the treatment services would not be made until an OCF-1 is received, and if the applicant claims benefits over the Minor Injury Guideline threshold, he will need to submit additional medical documentation. Both EoBs also specifically request the applicant to provide his completed OCF-1 by a specific date.
29In my view, the applicant has not satisfied his onus of establishing a reasonable explanation for his delays. Taking into account the principles of K.H., I find that the applicant’s explanation for the delay in notifying the respondent of the accident and the delay in submitting a completed OCF-1 is neither credible nor worthy of belief, based on the evidence.
30An 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 did not sustain any material prejudice but that, if barred, the applicant will suffer hardship as a result of a priority dispute. In my view, this is not a typical priority dispute. As soon as the insurance companies learned of the applicant’s claim with both insurers, they agreed that the respondent would have priority. It is the applicant who continued to pursue a claim with both. The applicant delayed his submission to the respondent for 87 days (March 15, 2024) and submitted an OCF-1 with TD on May 23, 2024. In these circumstances, I find that the delay of 87 days before submitting his OCF-1 to the respondent caused it prejudice in fulfilling its obligations to investigate and assess his claim.
31For these reasons, I find that the applicant has not met his onus to establish a reasonable explanation for his delays.
Section 55
32Pursuant 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.
33As outlined above, I find that the applicant did not notify the respondent within the timelines prescribed by the Schedule, he did not submit an application for benefits within the timelines prescribed by the Schedule and he has not provided a reasonable explanation for the delays. Accordingly, I find that the applicant is statute-barred from proceeding with his application before the Tribunal.
ORDER
34The applicant is barred by section 55(1) from proceeding with his application before the Tribunal. The Tribunal shall vacate any date that has been scheduled for the substantive issues hearing.
Released: February 4, 2026
Trina Morissette
Vice-Chair