An Ontario tribunal ruled that an auto insurer's duty to reach out extends beyond policyholders to anyone it knew was involved in a crash.
In Swampillai v Definity Insurance Company, 2026 CanLII 56635 (ON LAT), released June 8, 2026, the Licence Appeal Tribunal decided a preliminary issue that speaks directly to how adjusters handle first notice of an accident.
Xavier Swampillai was driving his father's vehicle, insured by Definity Insurance Company, when an accident occurred on February 3, 2024. Three days later, on February 6, 2024, his father notified Definity, supplying accident photos, recorded phone conversations and the collision report. Swampillai emailed the insurer directly on March 13, 2024. He did not submit his completed application for benefits, the OCF-1, until July 22, 2024.
Definity denied the claim and argued before the Tribunal that Swampillai was barred from proceeding because he missed the deadline to apply. The insurer's position was that the father's notice dealt with property damage, and that section 32(1) of the Statutory Accident Benefits Schedule required Swampillai, as the person seeking benefits, to signal his own intention to claim within seven days.
Vice-Chair Trina Morissette disagreed. She found that once Definity learned of the accident through the father's February 6 email - which showed Swampillai was the driver - the insurer had a positive obligation to inquire and to provide an accident benefits package under section 32(2). That package explains the benefits available and supplies the necessary forms. Because Definity never provided it, the 30-day window to submit the OCF-1 under section 32(5) was never triggered.
The adjudicator relied on the Divisional Court's decision in Hussein v. Intact Insurance Company, which held that insurers cannot rely on an insured's inaction to assume no benefits will be claimed. Morissette found the duty to inquire requires direct communication with all those the insurer is aware were involved in an accident, plus notice that they may have access to accident benefits.
She rejected Definity's reliance on Mohamoud v. TD General Insurance Company, noting it predated Hussein and so could not have considered it.
In the alternative, Morissette found Swampillai had a reasonable explanation for any delay under section 34. He had no knowledge of the statutory process and relied on the insurer for assistance after the accident was reported. His March 13 email - which went unanswered - showed he had taken reasonable steps to apply.
Weighing prejudice, Definity argued the delay left it unable to assess Swampillai contemporaneously, a problem it said was complicated by a May 14, 2024 assault that caused a severe head injury and by ankle and knee injuries from another incident in July 2024. Morissette was unmoved, finding "any prejudice sustained by the respondent is self-afflicted."
The application will now proceed to a substantive hearing, scheduled to commence August 18, 2026.
The Tribunal's finding is pointed: an insurer that learns an individual was involved in a crash with a vehicle it covers cannot sit back and wait for that person to make contact.
