Bogoroch & Associates LLP, on behalf of the applicant, Kim Benoit, won in the recent decision of Benoit v. Sonnet Insurance Company, 2025 CanLII 25859 (ON LAT), on the preliminary issue of whether the applicant provided notice to her insurer of her intention to apply for accident benefits, in accordance with Section 32(1) of the Statutory Accident Benefits Schedule (SABS). The Licence Appeal Tribunal (LAT), finding in favour of the applicant, ruled that the applicant was compliant with the section, and she, therefore, was not statutorily barred from proceeding with her application for accident benefits.
Background
The applicant in Benoit was involved in a motor vehicle collision on May 8, 2023. That same day, her spouse contacted Sonnet Insurance Company (Sonnet) to advise that there had been a collision involving property damage. Despite no documented record of this call by Sonnet, in future communications between the applicant’s counsel and Sonnet, it was confirmed by the claims examiner that this call indeed took place.
The applicant’s condition worsened, and she was not aware of the extent and severity of her injuries until they had progressed. In October 2023, five months after the collision, an accident benefits case was documented and opened by Sonnet. The accident benefits case was then adjusted in the ordinary course, with the exchange of multiple forms and emails, until December 2023, when, for the first time, Sonnet advised the applicant that her claim was being denied on the basis of notice.
The Law
Pursuant to Section 32(1) of the SABS, someone who intends to apply for accident benefits shall inform the insurer of their intention to claim accident benefits within seven days. Upon receiving notice, the insurer must then provide the “Application for Accident Benefits (OCF-1)”, a written explanation of the benefits available, information to assist the person in applying for the benefits, and if applicable under Section 32(2) of the SABS, information on the election relating to the specified benefits.
Section 34 of the SABS states that failure to comply with a time limit does not disentitle someone to benefits if a reasonable explanation is provided and the onus is on the applicant to establish a reasonable explanation for the delay. Horvath v. Allstate Insurance Company of Canada, 2003 ONFSCDRS 92 (CanLII) is the authoritative case on the interpretation of “reasonable explanation.” The principles in Horvath are summarized as follows:
- An explanation must be credible or worth of belief before reasonableness is assessed;
- The onus is on the insured person to establish a “reasonable explanation”;
- Ignorance of the law alone is not a “reasonable explanation”;
- A “reasonable explanation” is both subjective and objective, and should take into account both personal characteristics and a “reasonable person” standard;
- Lack of prejudice to the insurer does not make an explanation automatically reasonable; and
- Reasonableness includes a balancing 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 Recent Divisional Court Case of Hussein v. Intact Insurance Company
In Benoit, the circumstances of notice were factually similar to those in the recent Divisional Court Case of Hussein v. Intact Insurance Company, 2025 ONSC 842. Briefly, Mr. Hussein contacted Intact Insurance Company the day after the accident to advise of the mere fact that there had been an accident, and reported property damage, without any discussion as to personal injuries, and did not file his claim for accident benefits until 17 months after the accident. In that case, in finding for the insured, Justice Sachs reaffirmed the consumer protection purpose of the SABS, at paragraph 38:
Consumers who have motor vehicle accidents are in a vulnerable position, particularly in the period immediately following an accident. Seven days is a very short notice period. Insurance contracts are complicated documents that the average consumer is unlikely to read. If they do read the document, they are unlikely to remember its contents if they have an accident, which could be many years later. The entitlement to damages for motor vehicle accidents in Ontario and the role of the SABS in that regime is not something that it is fair to assume the average consumer would be familiar with. Insurance adjusters and agents, on the other hand, can be presumed to know that if one of their insureds has an accident and is injured in that accident, they will want to make a claim for accident benefits. An interpretation of s. 32(1) that recognizes these realities is one that fosters the consumer protection purpose of the SABS. An interpretation that ignores these realities does the opposite. [emphasis added]
The Finding in Benoit
In Benoit, Adjudicator Pahuta found that the respondent ultimately failed to meet its onus to prove that the applicant was not compliant with Section 32(1) of the SABS. Adjudicator Pahuta underscored that, once notified, even of the mere fact that there has been an accident, Sonnet Insurance Company “should have inquired whether the applicant had sustained any injuries, clarified which benefits the insured was seeking, and sent the necessary application forms and explanation of benefits as required by s. 32(2)” (Benoit v. Sonnet Insurance Company, 2025 CanLII 25859 (ON LAT) at para. 16)
In the Hussein case, and notably in Adjudicator Pahuta’s reliance upon that decision in Benoit, the significance of the SABS being consumer protection legislation stands out as being significant and affecting the outcome.
As a result, in Benoit, the applicant’s claim for accident benefits was determined not to be barred and that sufficient notice was provided in those circumstances. Benoit also stands out as a strong reminder that those who have been injured, and find themselves in vulnerable circumstances, not fully aware of the accident benefits process, still ought to be heard, represented and treated fairly as they seek benefit coverage in relation to their injuries.
