Licence Appeal Tribunal
Tribunal File Number: 17-001327/AABS
Case Name: 17-001327 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:
V. A.
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Deborah Neilson
APPEARANCES:
For the Applicant: Matthew Barteaux, counsel
For the Respondent: Bruce Keay, counsel
HEARD: Written Hearing: July 31, 2017
OVERVIEW
[1]. The applicant, V. A., was injured in an automobile accident on November 9, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”) from the respondent, Co-operators General Insurance Company. The respondent paid the applicant various benefits and denied a number of her claims for benefits, including income replacement benefits (“IRBs”). The applicant commenced a proceeding to this Tribunal.
[2]. The respondent takes the position that the applicant can no longer dispute her entitlement to IRBs because her application to the Tribunal was made after the expiry of the two year limitation period. Section 56 of the Schedule states that an application to the Tribunal in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.
[3]. The parties consented to a written preliminary hearing to determine the limitation period question. According to the case conference Order, the question I am asked to decide is:
Is the applicant statute-barred from bringing an application for income replacement benefits, as the application was filed more than two years since the date of denial?
[4]. The Tribunal received the applicant’s application on March 6, 2017. The respondent alleges that the limitation period started to run on March 5, 2015 and that the applicant was required to file her application with the Tribunal no later than March 5, 2017. The respondent seeks an order dismissing the applicant's claim for IRBs on the basis that the applicant has missed the limitation period in which to commence this proceeding by one day.
[5]. The parties agree that the limitation period does not start to run until an insurer gives written notice of its refusal to pay the benefits claimed and the reasons for its refusal. The applicant does not take issue with the wording of the notice or whether it was clear or unequivocal notice. The applicant also does not dispute that the notice was improper in terms of the Smith v. Co-operators General Insurance Co.1 requirements of advising the applicant of the right to dispute. The real issue is whether the limitation period started on March 5, 2015 and also whether the applicant applied in time to the Tribunal.
[6]. Accordingly, the issues for me to determine are as follows:
a. Whether the limitation period begins to run from the date the respondent sent the notice, March 5, 2015;
b. Whether the applicant applied to the tribunal before the limitation period expired;
RESULT
[7]. I find that the applicant is not statute-barred from bringing her application for IRBs because the limitation period did not start on March 5, 2015. I also find that the applicant applied to the Tribunal before the limitation period expired.2
ANALYSIS
[8]. The respondent relied on Edward Chan’s affidavit. Mr. Chan is a claims representative with the respondent and has had carriage of the applicant’s accident benefit file since the accident. The applicant relied on the affidavit of Latanya James, a law clerk for the applicant’s lawyer. My findings of fact are based on the evidence provided in those affidavits and the attached exhibits.
[9]. There is no dispute that the respondent paid the applicant IRBs of $400.00 per week from November 16, 2014 until March 5, 2015. The evidence also shows that the applicant tried three different times, without success, to file the application with the Tribunal by facsimile transmission on March 3, 2017. There is also no dispute that the Tribunal received the applicant’s application on March 6, 2017 by way of facsimile transmission. What is in dispute is when the limitation period starts to run.
[10]. Mr. Chan’s evidence is that on March 5, 2015, he wrote to the applicant and advised that her entitlement to IRBs would cease as of March 5, 2015. He enclosed reasons for the refusal and an explanation that the applicant could dispute the refusal. The respondent submits that March 5, 2015 is the date the respondent refused to pay the IRBs claimed and, therefore, is the date the two year limitation period started. However, absent any evidence that a notice of refusal was delivered personally on the day it was sent, an insured does not receive the refusal the minute it is sent.
[11]. The applicant submits, which is not disputed by the respondent, that the requirement that the notice of the refusal must be provided to the insured means that the limitation period does not start until the applicant receives the notice. She relies on the Financial Services Commission of Ontario (“FSCO”) decision of York and Zurich Insurance Company (FSCO A00-00126, July 20, 2001) as support for the proposition. I agree that the limitation period does not run until the applicant receives the notice that the respondent refuses to pay the benefit. This is supported by s.37(4) of the Schedule, which requires that the insurer advise the insured of its denial of benefits and its reasons for the denial and s.54 - that the insurer provide a written notice that the insured person’s right to dispute the denial. The issue is when the applicant received this notice.
[12]. The respondent referred me to the Court of Appeal Decisions of Turner v State Farm3 and Sietzema v Economical,4 which both rely on the Supreme Court of Canada decision of Smith v. Co-operators General Insurance Co. for the requirement that, until the insurer gives written notice of its refusal to pay benefits claimed and the reasons for its refusal, the limitation period does not begin to run. None of these decisions addressed the issue of when the refusal notice is received.
[13]. In this case, the evidence shows that Mr. Chan wrote to the applicant on March 5, 2015. However, there was no evidence from Mr. Chan as to how the denial was sent, when the applicant received it or any evidence to support a determination that it was actually or deemed to have been received by the applicant on a particular date.
[14]. The respondent disputes the applicant’s submission that she received the denial notice sometime after March 5, 2015, but I find that based on the evidence and the requirements of the Schedule, the notice was received after March 5, 2015. My determination in this case is supported by s.64 of the Schedule, which details the methods by which a required notice may be delivered. Notice sent by regular mail is deemed, pursuant to s. 64(18) of the Schedule, to be received on the 5th business day after it was sent.
[15]. If Mr. Chan’s evidence that he “wrote to the applicant” means that the denial letter was mailed to the applicant by regular post on March 5, 2015, then the applicant is deemed to have received the March 5, 2015 denial letter, without evidence to the contrary, on March 12, 2015 pursuant to s.64(18) of the Schedule. Absent any evidence that the notice was received earlier, this is clear evidence that the March 5, 2017 denial letter was received by the applicant after March 5, 2015.
[16]. I am not satisfied that notice of the respondent’s refusal to pay IRBs was received by the applicant on March 5, 2015. Therefore, the limitation period did not start to run on March 5, 2015. Given that the application was filed with the Tribunal on March 6, 2015, the applicant is not statute-barred from bringing her application for IRBs.
DECISION AND ORDER
[17]. The two year limitation period did not start on March 5, 2015. Accordingly, the applicant is not statute-barred from bringing an application to the Tribunal for IRBs.
[18]. The respondent’s motion is dismissed.
Released: September 21, 2017
Deborah Neilson, Adjudicator
Footnotes
- 2002 SCC 30.
- The applicant submitted an alternate argument with respect to Rules 5.2 and 6.4 of the Licence Appeal Tribunal Rules of Practice and Procedure as they apply to this case. Given my finding that the limitation period did not start on March 5, 2015 or any earlier, I need not consider the applicant’s alternative arguments.
- (2005) 2005 CanLII 2551 (ON CA), 195 OAC 61 (Ont. C.A.)
- 2014 ONCA 111.