Tribunal File Numbers: 17-001475/AABS & 17-001477/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
A.G.
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
Adjudicator: Chris Serwattan
APPEARANCES: Counsel for the applicant: John Lockhart
Counsel for Certas: Adam Fox
HEARD: Written Hearing: July 11, 2017
OVERVIEW
This is a preliminary issue hearing to determine whether the applicant’s entitlement to an Income Replacement Benefit (“IRB”) is prevented by a limitation period.
The applicant was involved in two separate motor vehicle accidents. The first occurred on May 28, 2010 (the “first accident”); the second on June 8, 2011 (the “second accident”). The applicant sought an IRB under the Statutory Accident Benefits Schedule – Effective after November 1, 19961 for the first accident. He sought benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 20102, for the second accident. Both sets of benefits were sought from Certas Home and Auto Insurance Company (“Certas”). Certas denied payment for both sets of benefits, claiming that the respective IRBs are prevented by the application of a limitation period. The applicant appeals to the Licence Appeal Tribunal (“the Tribunal”) for payment.
The claim for each accident is addressed in this hearing.
ISSUE
- Is the applicant prevented from making two applications to the Tribunal for an IRB due to expiry of the two-year limitation period in which to commence proceedings?3
RESULT
- The two year limitation period prevents the applicant from making an application to the Tribunal for IRBs with respect to both accidents. At the minimum, the applicant should have made an application to the Tribunal by March 4, 2016.
FACTS
- The timeline is essential to understand how the limitation period intersects with the applicant’s claim. For clarity, I consider two timelines, one for each accident. I intentionally exclude some dates from the timeline that the parties reference in their submissions but I find to be immaterial to the application.
The first accident[^4]
May 28, 2010: The accident occurs and sometime thereafter the applicant requests an IRB.
August 16, September 26, and October 22, 2010: Certas requests information related to the IRB through an Explanation of Benefits form (“EOB”).
January 6, 2011: Certas provides an EOB to the applicant, advising that it is discontinuing payment of the IRB.
November 7, 2012: A mediation occurs at the Financial Services Commission of Ontario (“FSCO”). A Report of Mediator is issued which advises that the IRB remains an issue in dispute.
February 26, 2013: Certas provides an EOB to the applicant, advising that he may be eligible for an IRB, but he must provide information that remains outstanding.
May 27, 2013: Certas provides an EOB to the applicant, advising that it requires outstanding information. This is the same information that was requested on February 26, 2013.
March 4, 2014: Certas provides an EOB to the applicant, advising that he has been denied the IRB.
October 4, 2016 - Certas provides an EOB to the applicant, advising that it overpaid a portion of the benefit and is seeking repayment. A report is attached explaining that the applicant is entitled to a $0.00 weekly benefit.
November 3, 2016: The applicant applies to the Tribunal for dispute resolution.
The second accident[^5]
June 8, 2011: The accident occurs and sometime thereafter the applicant requests an IRB.
October 9, 2012: Certas provides an EOB to the applicant, advising that it is discontinuing payment of the IRB. Certas attaches a copy of a medical report for the explanation of its rationale.
October 24, 2012: The applicant’s counsel writes to Certas advising, among other things, that he has recently been retained by the applicant (who had previous counsel).
November 3, 2016: The applicant applies to the Tribunal for dispute resolution.
ANALYSIS
The applicant’s claim for an IRB for each accident is prevented by the operation of the two year limitation period.
Under s. 51 of O. Reg. 403/96 and s. 56 of O. Reg. 34/10 of the Statutory Accident Benefits Schedule, for the first and second accident respectively, an applicant has two years after the insurer’s refusal to pay the amount claimed in which to apply for dispute resolution. Prior to April 1, 2016, under the FSCO regime, an applicant had an extra 90 days after the Report of Mediator in which to file for a proceeding that was, essentially, equivalent to an appeal at the Licence Appeal Tribunal. The 90-day grace period was removed by legislative amendment when the Licence Appeal Tribunal assumed jurisdiction over automobile accident benefits claims, effective April 1, 2016.
Certas is the moving party in this preliminary issue hearing. In order for the limitation period to apply in this case, Certas must demonstrate that:
Certas gave notice to the applicant that it was denying or terminating the benefit;
The notice was clear and unequivocal;
Certas advised the applicant of the manner in which the decision might be appealed as well as the two year limitation period; and
All of the above was conveyed to the applicant in clear language that an unsophisticated person can understand.
As stated in the provisions, the two-year limitation timeline commences after the Insurer’s refusal to pay the amount claimed. The parties disagree on the date that the applicant was refused payment for an IRB in relation to each accident. The applicant submitted that many of the denials of the benefit in the various EOBs were unclear and equivocal because Certas requested additional information from the applicant. The debate is resolved by looking at the latest possible date – March 4, 2014. On that date the applicant was provided with an Explanation of Benefits from Certas which, under the heading “Not Eligible/Stoppage of Benefit”, stated the following:
Income Replacement Benefit: Please find the Section 44 reports dated February 26, 2014 and March 6, 2014 enclosed for your review. Based on the medical opinion provided in the reports dated March 6, 2014,the Section 44 Psychological report dated January 10, 2013, you do not have the a complete inability to engage in employment for which you are reasonably suited by education, training, or experience. As per the report dated March 6, 2014, you have continued with your self-employment and operating it managerially instead of through active involvement in truck driving. Therefore, you are no longer eligible for this benefit effective March 19, 2014. Prior to this date, please provide Jarvie Accounting with the information required to assist in calculating the quantum payable for this benefit. Please send this information to the attention of …. Please see Part 6 of this form for your dispute options.
I find this is a clear and unequivocal denial of the IRB. Certas has satisfied items 1 and 2, set out in paragraph 9.
The explanation of the dispute resolution options is equally clear. Indeed, it is the standard explanation that is appended to most EOBs. Therefore, I find that Certas has also satisfied the remaining two criteria.
The March 4, 2014 EOB was provided to the applicant in relation to the first accident. On this date, an EOB was not sent to the applicant addressing eligibility for the IRB specifically for the second accident. Looking at the notice from a functional perspective, and from the perspective of the applicant, I find that the March 4, 2014 EOB provides sufficient notice for both accidents. The timeline and the applicant’s perspective is key to understanding why. The applicant submits that Certas’ request for additional information so that it could adjust the IRB claim for the first accident clouded the certainty of its denial of the benefit for the second accident. The IRB claim for the second accident was denied in an EOB dated October 9, 2012. In essence, the applicant is submitting that he believed that communication in relation to the first accident applied to the second accident. It is a reasonable belief. But this cuts both ways. The March 4, 2014 Explanation of Benefits should be properly understood in the circumstances of this case to apply to both accidents.
In any event, if I take a step back and look at the circumstance more broadly, it is clear that the March 4, 2014 denial must apply to both accidents. At the time the EOB was provided to the applicant, March 2014, the test for an IRB for each accident was the same. When the applicant was denied the benefit for first accident he should have understood that, with the IRB test being the same for both accidents, he was denied the benefit for the second accident.
If I am wrong in my treatment of the denial in the March 14, 2014 EOB as sufficient notice of denial for the June 8, 2011 accident, I still find that the limitation period applies. The EOB provided on October 9, 2012 specifically addressed the second accident. The October 9, 2012 EOB was a clear and unequivocal denial of the IRB for the second accident. The EOB also included a standard explanation of the dispute resolution options. Items 1-4 of the criteria Certas must prove (as described in paragraph 9) are satisfied by the October 9, 2012 EOB for the second accident.
The applicant submits, essentially, that the limitation clock should not start running until at least October 4, 2016. On that date Certas provided an EOB. I reject this submission. The October 4, 2016 EOB requested that the applicant repay money to Certas. Moreover, the document notes that there is a “zero dollar ($0.00) entitlement to weekly benefits.”
The applicant submits that the limitation period should be relaxed because the rules relating to the limitation period switched on April 1, 2016 when the dispute resolution process switched from FSCO to the Tribunal. This submission is unconvincing because the limitation period expired before this Tribunal took over the jurisdiction to deal with these matters on April 1, 2016.
The applicant submits that I have the discretion to extend the limitation period under s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G. Section 7 states:
Extension of time
7 Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of the Tribunal under section 11 or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,
(a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and
(b) give the directions that it considers proper as a result of extending the time.
- I decline to exercise my power under s. 7(a). There is no reasonable ground upon which to grant an extension of the limitation period. He was provided with clear and unequivocal denials of the IRB as late as March 14, 2014. He did not appeal these denials until Certas attempted to claim repayment in late 2016. A limitation period exists to provide certainty and finality to potential litigation. There is no compelling reason that the applicant waited 2.5 years to appeal Certas’ denial of his two IRB claims.
CONCLUSION
- I am satisfied on a balance of probabilities that the applicant was properly advised of Certas’ refusal to provide an IRB by at least March 4, 2016. He had two years from this date to file an application for dispute resolution with the Tribunal. Since he did not file an application by March 4, 2016, his claims for an IRB are prevented by expiry of the two year limitation period.
Released: September 7, 2017
Chris Sewrattan
Adjudicator
Footnotes
- O. Reg. 403/96.
- O. Reg. 34/10.
- The limitation period is set out by s. 281.1 of the Insurance Act. The limitation period is incorporated into the Statutory Accident Benefits Schedule in s. 51 of O. Reg. 403/96 and s. 56 of O. Reg. 34/10. For ease of reference, I will refer to the wording in s. 56 of O. Reg. 34/10.
- Governed by s. 51 of O.Reg 403/96.
- Governed by s. 56 of O.Reg 34/10.