Section 32(1) of the Statutory Accident Benefits Schedule requires that a person who intends to apply for accident benefits shall notify the insurer of this intention within seven days of the circumstances that give rise to entitlement (a motor vehicle accident ), or as soon as practicable after that day. In 2003, the legislature shortened the notice period from 30 days to 7 days. In the past, the LAT has generally viewed this requirement strictly wherein the insured person must advise the insurer of not just the fact of an accident, but also of an intention to claim accident benefits specifically.
In Hussein v Intact (2025 ONSC 842), the Divisional Court on appeal took a different stance. In this case, the claimant notified the insurer of the accident the day after the accident to pursue a property damage claim. The insurer didn’t question the claimant about any personal injuries , nor did it advise him of his entitlement to accident benefits. The claimant subsequently experienced back and hip issues that severely impaired his ability to walk, and then he developed psychological issues which an IE assessor concluded were a direct result of the accident. The applicant did not apply for accident benefits until almost 22 months after the accident. The insurer initially approved the application and adjusted his claim. Some 16 months later however, the insurer denied the claim based on his delay in making his application under section 32(1).
The LAT, in its initial decision and on reconsideration, dismissed the claimant’s application and found that he should have known that he was eligible for benefits. The LAT also found that the insurer had no obligation to advise the claimant of the availability of accident benefits.
The Divisional Court disagreed and found that this approach undermined the consumer protection purposes of the Schedule. The Court held that the notice requirement was met when the claimant advised the insurer of the accident on the day after the accident because a reasonable insurer would assume that an insured intended to access all benefits available to them under their policy. In doing so, the Court found that it was not fair to assume that the average consumer would be familiar with accident benefits.
The Court’s approach may effectively do away with part of section 32(1). Rather than requiring notice of a person’s intention to apply for accident benefits, the person only needs to provide notice of the accident itself. Any report of a property damage claim within 7 days after the accident may satisfy the Court’s approach and definition of notice for s.32(1)’s purpose.
The LAT has released three decisions since Hussein. In Benoit v Sonnet, the LAT was bound by Hussein to find that the applicant’s husband’s call to report the property damage claim immediately after the accident was sufficient for notice under s.32(1) for the applicant to pursue her accident benefits claim, despite a more than five month delay in actually applying for accident benefits. There was no record of the call to speak to the reported severity of the accident or any initial injuries (or denial).
In Hurley v Co-operators, the LAT distinguished the case from Hussein where there was no contact at all for 21 months after the accident. There was no property damage, so there was no initial report of the incident (in this case the door swung back and hit the applicant’s head while she was retrieving an item from the back seat). She applied for accident benefits 21 months later. The Adjudicator found that without any notice of the incident at all, the insurer was unable to obtain contemporaneous medical information and conduct relevant investigations and assessments of the claim, which was prejudicial to the insurer and was not outweighed by the applicant’s ignorance of the law alone.
In Caldwell v. Trillium Mutual, the LAT also distinguished Hussein on the basis that the applicant failed to tell the insurer of his involvement in an accident until August 18, 2023 where the accident had occurred on May 24, 2023.
The Court’s decision in Hussein marks a significant shift in the LAT’s approach to s.32(1) wherein any notice of an accident to an insurer within 7 days of the event may be enough notice to satisfy the requirements of s.32(1). Having said that, in Hussein, the property damage was significant, which made the insurer’s silence on accident benefits availability particularly noteworthy. We will have to wait and see how the LAT applies Hussein where the accidents are quite minor, or where insureds deny any injuries in their initial report of an accident to the insurer, as was the situation in Abbany v. Pafco (2012 ONFRSCDRS 144) which was cited to the Divisional Court in Hussein.
Maia Abbas is an associate at the firm and the author of this blog. If you have a question about a similar file or this decision, please contact Maia at 416-777-5205.
