Tribunal File Number: 16-001976/AABS
Case Name: 16-001976 v Co-operators General Insurance Company
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:
G. A.
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Chris Sewrattan
APPEARANCES:
Counsel for the Applicant: Kevin Lin
Counsel for the Respondent: David Raposo
HEARD: Written Hearing: February 13, 2017
Overview
1The applicant was injured in a motor vehicle accident on June 7, 2013. He applied for and received benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”), including an Income Replacement Benefit. Co-Operators General Insurance Company (“Co-Operators”) terminated the applicant’s income replacement on February 26, 2014. The applicant disputes that termination.
2This is a preliminary issue hearing to determine if the applicant is prohibited from bringing his claim for income replacement benefits because of the limitation period in section 56 of the Schedule.
Preliminary Issue:
3Is the applicant prohibited from bringing his claim for income replacement benefits because of the limitation period in section 56 of the Schedule?
Result:
4The applicant brought his claim to the Licence Appeal Tribunal outside of the limitation period. As a result, s. 56 of the Schedule prohibits the applicant from bringing a claim for income replacement benefits.
Facts:
5Given that the preliminary issue relates to a limitation period, the timeline in this matter is important. The applicant was involved in a motor vehicle collision on June 7, 2013. He elected to receive income replacement benefits from Co-Operators on August 6, 2013. Co-operators paid the applicant an income replacement benefit until February 26, 2014.
6Co-Operators advised the applicant that he was denied an income replacement benefit on February 26, 2014. The clock on the limitation period to appeal the denial began on this day. The applicant had two years (24 months) to appeal, making February 26, 2016 the last day for an appeal to be filed. The applicant was not represented by counsel at this time.
7The applicant retained counsel a little over one year into the limitation period, March 31, 2015.
8Almost 23 months into the limitation period, January 21, 2016, the applicant filed for mediation at the Financial Services Commission of Ontario (FSCO). The mediation date was set for May 6, 2016. This is after the date the limitation period was set to expire (February 26, 2016).
9On April 1, 2016 the Licence Appeal Tribunal assumed jurisdiction from FSCO over appeals relating to automobile accident benefits. Various changes to the legislation came into effect on this day in, including the removal of a 90-day grace period in which an applicant could appeal a denial of a benefit after receiving a ‘Report of Mediator’ at FSCO.
10The parties declined to settle the issue of income replacement benefits at the May 6, 2016 mediation at FSCO. A Report of Mediator was issued the same day.
11On August 11, 2016, the applicant applied to the Licence Appeal Tribunal to dispute the denial of his income replacement benefit. This was 97 days after the Report of Mediator was issued.
Discussion:
The law
12Under section 56 of the Schedule, an applicant has two years after the insurer’s refusal to pay the amount claimed for a benefit in which to apply to the Licence Appeal Tribunal. 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. The parties agree that the 90-day grace period is not applicable to the applicant.
13I find that Co-Operators has proven that the applicant is barred by the limitation period in s. 56 of the Schedule from bringing his claim for an income replacement benefit. While the onus is on Co-Operators to prove its case, I find it clearest analytically to frame the analysis with the applicant’s submissions.
Co-Operators’ notice of the limitation period was invalid
14Section 56 of the Schedule is applicable only if Co-Operators fully provided notice of the two year limitation period when it denied the applicant payment for an incurred expense (see especially Smith v. Co-Operators General Insurance Co., [2002] 2 SCR 129, 2002 SCC 30). The two year limitation period begins only when sufficient notice is provided. The applicant submits that Co-Operators’ notice on February 26, 2014 was insufficient. Co-Operators did not advise the applicant of the jurisdictional switch from FSCO to Licence Appeal Tribunal, including the removal of the 90-day grace period after the Report of Mediator.
15I find that Co-Operators’ notice was sufficient. It did not need to include information about the switch from FSCO to the Licence Appeal Tribunal. All that was needed was notification of the limitation period that existed at the time and, in clear language, the steps necessary to take part in the dispute resolution process. Co-Operators did that. There is no evidence that at the time the notice was provided Co-Operators knew or ought to have known that the Licence Appeal Tribunal would assume jurisdiction of automobile accident benefits on April 1, 2016. There is likewise no evidence of knowledge of the legislative changes that would accompany the switch from FSCO to the Tribunal. What the applicant submits is sufficient notice was impossible on February 26, 2014.
The limitation period does not account for the change between FSCO and the Licence Appeal Tribunal
16The applicant submits that the two year limitation period under s. 56 of the Schedule does not account for the exceptional circumstance of a change in jurisdictional bodies. The jurisdictional transfer from FSCO to the Licence Appeal Tribunal, and the accompanying legislative changes, created uncertainty for all parties; applicants, insurance companies, and adjudicative bodies alike. The applicant submits, essentially, that he should be afforded some latitude under the limitation period to account for the uncertainty. His strongest example is that, in his view, if he filed an application with the Licence Appeal Tribunal on the day the Report of Mediator was issued, May 6, 2016, he would still be outside the limitation period. By contrast, if the FSCO regime governed and he filed an arbitration application the same day, he would be able to avail himself of the 90-day grace period.
17The submission is initially compelling. However, it took the applicant almost ten months from the time he retained counsel to the time he filed an application for mediation with FSCO. In addition, there is no satisfactory explanation for the delay in applying to the Tribunal after receiving the FSCO Report of Mediator.
18The applicant does not submit that the 90-day grace period following the Report of Mediator is available. However, to look at the effect of the switch from FSCO to the Tribunal, I note that the applicant would have been outside the 90-day grace period even if it did apply. The applicant applied to the Tribunal 97 days after the Report of Mediator was issued. There is no evidence that he erroneously applied to FSCO within the 90-day grace period either. In all, the 90-day grace period would not have benefited the applicant if it was available to him. This distinguishes this case from instances in which a relaxation of the limitation period would be appropriate.
19The Schedule is consumer protection legislation. The limitation period prevents an applicant from having the opportunity to make their case before an independent adjudicator. I make no determination on whether I can relax the limitation period due to the switch from FSCO to the Licence Appeal Tribunal. To the extent that this power exists, however, this is not the case in which it applies.
Co-Operators should be estopped from relying on the limitation period
20According to the applicant, Co-Operators misled the applicant, and his counsel, about whether it had denied the applicant an income replacement benefit. The alleged misleading occurred in a Notice of Examination dated May 11, 2015 from Co-Operators. The notice was sent to the applicant after he submitted a Treatment and Assessment Plan dated May 7, 2015. Co-Operators responded with the notice, requesting a psychiatry assessment by an independent medical examiner for the following reason:
To further understand the nature of [the applicant’s] impairments as a result from [sic] the subject auto accident and how this functional complaints [sic] relate to (or impact on) his ability to perform the essential tasks of his employment and activities and provide a second opinion in regards to an entitlement to the Income Replacement Benefits (IRB).
The applicant did not have counsel on February 26, 2014 when he was denied payment for an income replacement benefit. He had counsel when he received the Notice of Examination dated May 11, 2015. The applicant submits that the notice, in using language relating to the test for an income replacement benefit, had the effect of misleading him and his counsel. In his view, the notice suggested he had not been denied entitlement to an income replacement benefit. As remedy, the applicant requests that Co-Operators is estopped from relying on the limitation period.
21I reject the submission. Like all insurers, Co-Operators has an obligation to continually assess and reconsider its position upon receipt of new information. If the applicant’s medical condition worsens, he may become entitled to an income replacement benefit despite having been denied in the past. In my view, that is clearly the intent of the impugned passage in the Notice of Examination. There was no attempt to mislead from Co-Operators.
22The applicant suggests that Co-Operators is at fault for failing to follow up with confirmation that the applicant had been denied an income replacement benefit. While better cooperation between the parties is preferable, it is not Co-Operators’ duty to shore up communications between the applicant and his counsel. It certainly does not rise to the level of an estoppel remedy.
Conclusion:
23Section 56 of the Schedule prohibits the applicant from bringing a claim for income replacement benefits to the Licence Appeal Tribunal because he is outside of the limitation period.
24If there are issues in relation to the June 7, 2013 accident remaining at the Licence Appeal Tribunal, the parties should advise the Case Management Officer. I am no longer seized of this matter. Similarly, if the matter is at an end, the applicant should advise the Case Management Officer accordingly.
Released: March 27, 2017
Chris Sewrattan, Adjudicator