Co-operators failed to bar an accident benefits claim - the LAT found it raised the wrong preliminary issue and lacked evidence the required forms were provided.
In a Preliminary Issue Decision and Order released May 25, 2026, Vice-Chair Trina Morissette ruled that Zihua Jiang may proceed with her statutory accident benefits application against Co-operators General Insurance Company. The case, Jiang v. Co-operators General Insurance Company, 2026 CanLII 51026 (ON LAT), turned on procedural fairness and on what the insurer could put into evidence.
Jiang was involved in an incident on June 9, 2019. She submitted her OCF-1 on July 23, 2020 - thirteen months after the incident. Co-operators investigated the claim and later sought to dismiss her application on the basis that she had not applied within the time prescribed by the Statutory Accident Benefits Schedule.
The matter has a long procedural history. An earlier LAT decision found the June 9, 2019 incident was not an "accident" under the Schedule. On March 1, 2024, the Divisional Court partially allowed Jiang's appeal and sent the matter back. After a five-day videoconference hearing, the Tribunal released a decision on December 19, 2024, finding that an accident had occurred but that Jiang had not proven entitlement to the benefits claimed, which included an income replacement benefit, attendant care, treatment plans, interest, and an award. A further appeal to the Divisional Court is pending.
In the current application, filed September 18, 2025, Co-operators raised a preliminary issue at the January 15, 2026 case conference: whether Jiang was barred because she failed to submit her OCF-1 within the time prescribed in the Schedule. In its later submissions, however, the insurer's argument focused on late notification under section 32(1), rather than late submission of the OCF-1 under section 32(5).
Morissette found that the section 32(1) notification issue was not properly before the Tribunal. It had not been identified at the case conference or in the Case Conference Report and Order, and the insurer had not brought a motion to amend the preliminary issues. Procedural fairness, the Vice-Chair held, required that Jiang have proper notice and an opportunity to respond. Rule 20.4 of the Licence Appeal Tribunal Rules, 2023 requires preliminary issues to be included in a party's case conference summary.
On the section 32(5) issue that was properly before her, the Vice-Chair found Co-operators had not made out its case. Section 32(2) requires an insurer, once notified of an intention to apply for benefits, to provide the claimant with an accident benefits package including the OCF-1. The 30-day deadline in section 32(5) only starts running after the package is provided. There was no evidence before the Tribunal that Co-operators had provided an accident benefits package or the required OCF-1 form to Jiang. Without it, the 30-day clock had not been triggered.
The Vice-Chair acknowledged that framing the preliminary issue under section 32(5) rather than section 32(1) "was fatal to the respondent's position." Each party, she noted, bears the onus of identifying the proper preliminary issue. Jiang's application will now proceed to a hearing on the substantive issues.
