Licence Appeal Tribunal
Tribunal File Number: 17-005601/AABS
Case Name: 17-005601 v Aviva Insurance Company of Canada
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:
E. A.
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Heidi R. Brown, Counsel Andrew Haroun, Counsel
For the Respondent: Matthew Owen, Counsel
HEARD: In writing on January 22, 2018
OVERVIEW
1The applicant was injured in an automobile accident on October 7, 2014 and sought benefits from the respondent pursuant to O. Reg. 34/10: Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The respondent refused to pay for certain treatment and assessments that the applicant applied for. The applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute. At the case conference, the respondent raised a preliminary issue asserting that the applicant is statute barred from bringing the application pursuant to section 56 of the Schedule, which is the subject of this hearing.
ISSUE
2The preliminary issue in this hearing is whether the applicant is statute barred from applying to the Tribunal pursuant to section 56 of the Schedule and subsection 280(2) of the Insurance Act?
RESULT
3The applicant is barred from commencing this application pursuant to section 56 of the Schedule and subsection 280(2) of the Insurance Act because it was brought more than two years beyond the date of denial.
BACKGROUND
4The applicant was involved in an accident on October 7, 2014. The applicant retained legal representation and sought benefits from the respondent that were denied in November 2014, March 2015, April 2015, and May 2015. Following the denials, the applicant retained new counsel. This occurred on October 19, 2016. The representation the applicant retained in October 2016 has remained the same to-date and is the applicant’s representative for this hearing.
5Counsel for the applicant has made five different written requests for the respondent to produce a copy of the applicant’s accident benefit file. The requests started January 5, 2017 and continued on May 19, June 30, July 26, and August 4, 2017. Counsel for the applicant also left voicemails starting April 18, 2017 and continuing on August 2, August 3, and August 22, 2017.
6The respondent’s first reply to the applicant’s counsel occurred by email dated August 23, 2017, where the respondent apologized for the delayed response and provided the dates the disputed treatment and assessment plans were denied. The following day, August 24, 2017, the respondent emailed counsel for the applicant to provide the amount claimed for the denied treatments and assessments.
7The applicant submitted the application for dispute resolution on August 25, 2017.
8The respondent provided the applicant with the complete accident benefit file on September 1, 2017.
PRELIMINARY ISSUE
9The respondent raised a preliminary issue in response to the applicant’s claims pursuant to section 56 of the Schedule. The respondent submits that the applicant is barred from submitting this application because more than two years have passed from the date of the denials.
10The applicant concedes to failing to dispute the denials in accordance with section 56 of the Schedule and does not argue that the denials are unclear or unequivocal.The applicant argues that the respondent is estopped from relying on the limitation period because of the respondent’s post-denial conduct of not delivering the applicant’s file to counsel in a timely manner