Samantha Oliver v. Brant Mutual Insurance Company, 2018 ONSC 3716

CITATION: Oliver v. Brant Mutual Insurance Company, 2018 ONSC 3716

DIVISIONAL COURT FILE NO.: 18-913

DATE: 20180614

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

CONWAY, VARPIO, and MYERS JJ.

BETWEEN:

Samantha Oliver

Appellant

– and –

Brant Mutual Insurance Company

Respondent

Lawrence Gan, lawyer for the appellant

Robert Rogers, lawyer for the respondent

HEARD at Hamilton: June 8, 2018

REASONS FOR JUDGMENT

F.L. MYERS J.

The Appeal

The Appeal

1Samantha Oliver, appeals the decision of the Licence Appeal Tribunal dated January 15, 2018 in which the adjudicator determined that Ms. Oliver’s claim for attendant care benefits under the applicable Statutory Accident Benefits Schedule, O. Reg. 403/96 (“SABS”) is statute barred.

2For the reasons that follow, the appeal is dismissed.

The Facts

The Facts

3On January 4, 2005, Ms. Oliver suffered injuries in a motor vehicle accident. At the time, Ms. Oliver was insured under a motor vehicle policy issued by the respondent Brant Mutual Insurance Company.

4Ms. Oliver claimed no-fault accident benefits under the policy by submitting to the insurer an OCF-1 Application for Accident Benefits and an Activities of Normal Life OCF-12 form. She argues that she did not expressly apply for attendant care benefits at the time.

5On receiving the two application forms from Ms. Oliver, the insurer commenced the process of adjusting the claim as it was required to do under the applicable law. (see Mulhall v The Wawanesa Mutual Insurance Company, 2015 ONSC 7495 at para. 26). The insurer determined that the forms filed by Ms. Oliver amounted to an application for attendant care benefits.

6The insurer was not prepared to approve attendant care benefits for Ms. Oliver. However, before it could deny the claim for attendant care benefits, s. 39 (1) of the SABS obliged the insurer to give Ms. Oliver notice that it required her “to furnish an assessment of attendant care needs in Form 1 prepared by a member of a health care profession”.

7Rather than requiring Ms. Oliver to obtain a Form 1, the insurer arranged for Ms. Oliver to see an occupational therapist to assess Ms. Oliver’s condition. The OT concluded that Ms. Oliver did not require attendant care benefits at that time.

8The insurer then sent Ms. Oliver a denial of attendant care benefits in form OCF-9 on April 6, 2005. The OCF-9 form expressly referred Ms. Oliver to an enclosed OCF-14 form if she wished to dispute the insurer’s decision to deny her benefits.

9Ms. Oliver did not dispute the insurer’s denial of attendant care benefits.

10Unfortunately, Ms. Oliver’s condition deteriorated in the years following the accident. In June, 2015, the parties agreed that Ms. Oliver had become catastrophically impaired as a result of the 2005 accident. The SABS provide that, in the ordinary course, attendant care benefits last no longer than 104 weeks (two years). However, where an insured person is catastrophically impaired, she is entitled to claim attendant care benefits beyond the initial 104 week period.

11Ms. Oliver made a claim for attendant care benefits on October 23, 2015.

12The insurer denied the application on the basis that the Ms. Oliver did not dispute the 2005 denial of attendant care benefits within the two year limitation period. The insurer advised that under s. 281.1 of the Insurance Act, RSO 1990, c I.8, the limitation period for claiming attendant care benefits commenced on “the insurer’s refusal to pay the benefit claimed” in April, 2005 and expired two years later. The insurer therefore took the position that Ms. Oliver’s claim for attendant care benefits had become statute barred in April 2007.

13Ms. Oliver disputed the denial of benefits before the LAT. She argued that in her general OCF-1 application in 2005 she never specifically applied for attendant care benefits. On that basis, she submitted that the insurer’s denial of benefits was premature. She also submitted that the denial was not sufficiently clear and unequivocal to meet the case law requirements for a proper denial of benefits. In addition, Ms. Oliver argued that since there was no Form 1 assessment as required by s. 39 (1) of the SABS, there was no proper claim for attendant care benefits and therefore no proper “refusal to pay the benefit claimed” by the insurer so as to commence the limitation period running.

14By decision dated January 15, 2018 the LAT adjudicator disagreed and found that Ms. Oliver’s claim for attendant care benefits was statute barred. He found that the insurer’s 2005 denial was clear and unequivocal. Therefore, it was sufficient to trigger the start of the two year limitation period. The adjudicator followed the decision of the Court of Appeal in Sietzema v. Economical Insurance Company, 2014 ONCA 111, in which the court re-asserted the proposition from Turner v State Farm Mutual Automobile Insurance Co., 2005 2551 (ON CA), 2005 OJ No. 351 (ON CA) that as long as a denial of benefits is clear and unequivocal, the reasons for the denial provided by the insurer need not be legally correct in order to trigger the commencement of the limitation period.

15Ms. Oliver appeals to this court.

Jurisdiction and Standard of review

Jurisdiction and Standard of review

16In D.O. v. TD Insurance Meloche Monnex, 2018 ONSC 3269, this court recently discussed the jurisdiction and standard of review on an appeal from a SABS adjudication by the LAT:

Jurisdiction

7Under s. 11 (6) of the Licence Appeal Tribunal Act, 1999, SO 1999, c 12, Sch G, an appeal lies to this court from a decision of the tribunal in proceedings under the Insurance Act, RSO 1990, c I.8 on a question of law alone.

Standard of Review

8The standard of review in appeals of this type is reasonableness. See Melo v. Northbridge Personal Insurance Corporation, 2017 ONSC 5885 citing: Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293, at para. 34; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, at paras. 37-38; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 47-49, 54-56; and 2193145 Ontario Inc. o/a Boston Pizza v. Registrar, Alcohol and Gaming, 2016 ONSC 3553 at para. 27.

9In Agyapong v. Jevco Insurance Company et al., 2018 ONSC 878, Justice Wilton-Siegel described a reasonableness standard of review as follows:

In determining whether a decision is reasonable, the court is concerned largely with the justification, transparency and intelligibility of the Board’s reasons, as well as whether the decision falls within a range of possible, acceptable outcomes, given the facts and law: see Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47.

Analysis

Was the 2005 denial clear and unequivocal?

Analysis

17No appeal lies to this court on this issue. The appellant does not argue that the adjudicator applied an incorrect legal test. She argues that the adjudicator applied the test incorrectly on the facts as found. Whether, on the facts accepted by the tribunal, a particular denial of benefits meets the applicable legal standard is not a question of law. The question of whether the insurer’s denial was sufficiently clear and unequivocal is one of fact or mixed fact and law.

Was there a proper application and denial of benefits so as to commence the limitation period?

Was there a proper application and denial of benefits so as to commence the limitation period?

18While this question too may be one of mixed fact and law, the question of whether the limitation period under s. 281.1 is triggered only by an application or a refusal of benefits that follows strictly the process set out in s. 39 (1) of the SABS may be an extricable question of law.

19Ms. Oliver argues that her OCF-1 and OCF-12 forms applied for accident benefits generally but were not an application for attendant care benefits. Rather, she says that a Form 1 was required to make a valid application. That does indeed appear to be the applicable law today. However, that was not the case in 2005. As noted above, s. 39 (1) then in force required that once an insurer had received an application, the insurer could either allow the benefits claimed or send the insured for a Form 1 assessment. Moreover, applicable case law positively required the insurer to commence the adjusting process in good faith once it had sufficient information to do so regardless of whether a Form 1 had been submitted. An application therefore precedes a Form 1. In fact, an application is a condition precedent to a Form 1. The arbitrator’s finding that the forms filed by Ms. Oliver were a sufficient application for the insurer to deny attendant care benefits is reasonable.

20The insurer acknowledges that it did not send Ms. Oliver for an assessment to obtain a Form 1. It used an OT assessment as the basis for its rejection of her claim.

21The adjudicator held that the Sietzema case applied so that the limitation period was triggered once the insurer made a clear and unequivocal denial of benefits regardless of whether the denial was legally correct. The question of whether an insurer is correct in making a denial is determined in later proceedings (at that time by arbitration or a lawsuit; today by application to the LAT). The limitation period for those proceedings runs from the making of the denial.

22The adjudicator was interpreting his home statute in light of jurisprudence on a very similar issue. The adjudicator’s reasons are transparent and intelligible. The outcome is within the range of available outcomes in light of the statutory language and the applicable case law. Accordingly, even if the question amounts to an extricable question of law, the court is required to defer to the adjudicator’s decision.

Disposition and Costs

23The appeal is therefore dismissed.

24Counsel agree that the unsuccessful party should be ordered to pay costs to the successful party on a partial indemnity basis fixed at $5,000 all-inclusive. Accordingly, Ms. Oliver will pay $5,000 in costs to the respondent.

Myers J.

I agree _______________________________

Conway J.

I agree _______________________________

Varpio J.

Release Date: June 14, 2018