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:
N.K.
Applicant
and
Intact Insurance Company
Respondent
DECISION ON PRELIMINARY ISSUE
ADJUDICATOR: Anita Goela
APPEARANCES:
For the Applicant: N.K., Did not attend Rachel Radomski, Counsel
For the Respondent: Monique Quintal, Representative Tripta Sood, Counsel
Held by Teleconference: July 12, 2018 with written submissions filed in advance.
REASONS FOR DECISION ON PRELIMINARY ISSUE
OVERVIEW
1The applicant was involved in an automobile accident on November 23, 2012 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2The applicant was denied an income replacement benefit (IRB) by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
3The parties disagree on the date when the applicant received proper notice of the denial.
ISSUE
4The preliminary issue to be determined in this hearing is as follows:
(1) Is the applicant statute-barred from applying for an IRB in the amount of $400.00 per week for the period of May 24, 2014 to date and ongoing as a result of the two-year limitation period?
RESULT
5For the reasons that follow, I find that the applicant is statute-barred from appealing the denial of an income replacement benefit.
ANALYSIS
6Section 56 of the Schedule provides that “an application […] shall be commenced within two years after the insurer’s refusal to pay the amount claimed.”
7Below I have reproduced a relevant chronology of important dates in this dispute, which were highlighted by counsel in their submissions.
| Date | Event |
|---|---|
| October 23, 2013 to May 24, 2014 | Applicant received IRBs in the amount of $400.00 per week. |
| May 26, 2014 | Applicant emailed respondent to advise that he started working May 20, 2014. |
| June 2, 2014 | Respondent wrote to applicant advising that IRBs were terminated and to notify the respondent if he stops work within 104 weeks. Enclosed with the letter was the standard “Applicant’s right to dispute” letter warning the applicant that he had two years to dispute the termination. |
| May 18, 2017 | Applicant advised respondent that he stopped working August 30, 2016. |
| Various correspondence between July 2017 and September 2017 | Respondent requests applicant to provide various information. |
| October 4, 2017 | Respondent denies IRB because he does not meet the test for post-104 IRB eligibility. |
| November 17, 2017 | Applicant files application with Tribunal. |
8The applicant submits that the various correspondence he received from the respondent between July 2017 and October 2017 led him to believe that the respondent was considering his claim for an IRB. In that correspondence, the respondent made requests for information related to the applicant’s employment files, Canada Revenue Agency filings, and other documentation. The applicant submits that this correspondence renders the June 2, 2014 letter equivocal, unclear and confusing. The applicant submits that it was not until October 4, 2017 that the applicant denied the IRB. Therefore, the applicant submits that the respondent cannot take the position that the applicant is barred from appealing the denial on the basis of a limitation period.
9The respondent submits that I should ignore the correspondence between July 2017 and October 2017. Instead, it submits that I should focus my analysis on the content of the June 2, 2014 letter and whether the applicant advised the respondent that there was a change in his employment circumstances within 104 weeks of that letter. I agree with the respondent. As outlined in the table above, over two years elapsed from the applicant’s termination of IRBs and his inability to continue to work.
10I have considered the applicant’s submissions with respect to the content of the June 2, 2014 letter. Overall, I agree with the respondent that the language used in that letter is clear with respect to termination. I do not agree with the applicant that words such as “discontinue” and “stoppage” are equivocal with respect to whether the IRB was terminated. I find that their ordinary interpretation would have notified the applicant that his IRB was now denied as he had voluntarily returned to work. In addition, the applicant was advised that he owed the respondent $228.56 because of overpayment in the amount for the period of May 20-24, 2014.
11The applicant submits that the Tribunal’s decision in 17-004556 v Aviva Insurance Canada, 2018 CanLII 13157 (ON LAT) is persuasive. I find that the applicant’s case is distinguishable from that decision. Unlike this case, the applicant advised the respondent within the 104 week period following termination of the IRBs that she had stopped going to work because of accident-related injuries.
12In summary, I find that the respondent gave sufficient notice terminating the IRB in its June 2, 2014 letter and the limitation period began on that date. The applicant stopped working more than 104 weeks after June 2, 2014. The respondent’s inquiries do not reset the two-year limitation for appealing the denial.
CONCLUSION
13For the reasons above, I find that the applicant is statute-barred from appealing the denial of an income replacement benefit.
ORDER
14The application is dismissed.
Released: December 12, 2018
Anita Goela Adjudicator