Court File and Parties
Tribunal File Number: 18-001713/AABS
Case Name: 18-001713 v Aviva General Insurance
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. M. L.
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Christopher Ferguson
APPEARANCES:
For the Applicant:
Nancy Young, counsel
For the Respondent:
Leanne Zabudsky, counsel
HEARD: Written Hearing:
September 10, 2018
REASONS FOR DECISION
OVERVIEW
1The applicant “VML”, was injured in an automobile accident on July 7, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (“the 'Schedule'').
2VML filed for benefits from the respondent (“Aviva”), and then applied to the Licence Appeal Tribunal (“the Tribunal”) when Aviva denied the disputed benefits.
3Aviva has raised a preliminary issue that could prevent the Tribunal from hearing VML’s appeal of its decision to deny income replacement benefits (IRBs). It asserts that the applicant is “statute barred” (explained below) from appealing its refusal to IRBs, because she failed to commence her appeal within two years of the date that her claim for benefits was denied as required by s. 56 of the Schedule.
4Other issues in dispute, including whether or not VML’s injuries fall within the Minor Injury Guideline, and her claims for medical benefits, are not affected by my determination of the preliminary issue.
5In an Order dated October 26, 2018, the Tribunal directed that a case conference be held on December 10, 2018 to discuss settlement of various issues in dispute and to decide hearing details in relation to substantive issues.
PRELIMINARY ISSUE
6Aviva has raised the following preliminary issue in this matter:
(1) Is VML statute-barred from proceeding with her appeal of Aviva’s refusal to pay IRBs?
FINDINGS
7VML is statute-barred from proceeding with her appeal on IRBs. I have decided not to extend the limitation period in this case.
8VLM’s cost request is denied.
REASONS
9Under s.56 of the Schedule, an appeal of an insurer’s denial of a benefit must be commenced within two years after the insurer’s refusal to pay the amount claimed. The two years is called the “limitation period”.
10If an appeal is not filed within the two-year limitation period prescribed by s. 56, then the Tribunal cannot hear it: the appeal is effectively dismissed without a hearing. The appeal is said to be “statute barred.”
11Resolution of the preliminary issue in this case turns on the interpretation and application of subsections 37(1) and 37(5) of the Schedule.
i. Subsection 37(1) permits an insurer to request a new disability certificate and notify the insured person that it requires an insurer’s examination IE to determine whether the insured person is still entitled to a specified benefit.
ii. Subsection 37(5) requires an insurer to provide a copy of an IE to the insured person and to the person who prepared the OCF-3 within 10 business days if one was provided in accordance with subsection (1).
Chronology of Events
12The parties agree on the following:
i. After the accident, VML provided Aviva with:
(a) a Disability Certificate (“OCF-3”) from Mr. Hue Dinh, physiotherapist, dated July 15, 2015 confirming her medical eligibility for IRBs;
(b) an unsolicited Disability Certificate (“OCF-3”) from Dr. Robert Ames, dated July 21, 2015 confirming her medical eligibility for IRBs, and sent to Aviva on October 23, 2015
ii. Aviva approved IRBs for VML in a letter dated November 18, 2015 and paid them for the period of July 14 to December 6, 2015.
iii. Aviva scheduled an insurer’s examination (IE), which VML attended. It did not request new/updated OCF-3s from VML.
iv. Aviva notified VML on February 3, 2016 of its decision to terminate IRBs, effective February 14, 2016. Its decision was based on the IE conclusions