Tribunal File Number: 18-000918/AABS
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:
J.W.
Applicant
and
TD Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Robert Watt
APPEARANCES:
Counsel for the Applicant: Sunish Uppal
Counsel for the Respondent: Christine Haddad
HEARD: Written Hearing August 7, 2018
OVERVIEW
1The applicant was injured in a motor vehicle accident on March 23, 2013 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when his claims for benefits were denied by the respondent.
2A case conference was held on May 23, 2018 and the respondent raised a preliminary issue which is the subject of this decision.
ISSUE
3This is a preliminary decision as to whether the applicant is time barred from pursing an application for an income replacement benefit (IRB) at the Licence Appeal Tribunal (LAT) when more than two years have elapsed after the date of the respondent’s denial of an (IRB), pursuant to section 56 of the Schedule?
RESULT
4The applicant is precluded from proceeding with his claim for an IRB, as he did not file his dispute within the two-year limitation period.
BACKGROUND
5The applicant submitted an application for accident benefits (OCF-1) on May 3, 2013, and a Disability Certificate (OCF-3). On July 29, 2013, the respondent sent a letter to the applicant indicating that he was eligible for an IRB from August 1, 2013 until June 29, 2015.
6The applicant was self- employed at the time of the accident. The respondent was unable to calculate the quantum of his IRB from August 1, 2013 to June 29, 2015 as it needed more documentation. The respondent requested on July 29, 2015, and on February 12, 2016, more information from the applicant to determine the amount of IRB to be paid.
7On September 25, 2014, the applicant submitted an updated OCF-3 completed by his family doctor which stated that the applicant could return to work on a modified basis. The respondent by letter dated October 9, 2014, indicated to the applicant that he continued to be entitled to IRB for the period from August 1, 2013, until June 29, 2015.
8On January 8, 2015, the respondent requested that the applicant attend a section 44 examination to determine whether the applicant qualified for an IRB beyond the 104 weeks. The letter confirmed the assessment dates and set out the “Applicant’s Right to Dispute’ and warning for the two year limit to dispute the insurer’s refusal to pay the benefit claimed.
9On June 15, 2015, the respondent sent a letter to the applicant advising him that his IRB would be stopped on June 29, 2015, because the section 44 report stated that he did not suffer a complete inability to engage in any employment, as required by the Schedule.2 The section 44 report was also given to the applicant at the same time along with a copy of the “Applicant’s Right to Dispute” notice explaining the applicant’s rights and limitations.
10On February 15, 2018, the applicant filed his appeal to the LAT.
11On May 30, 2016, the respondent advised the applicant that the IRB weekly payment based on the Pricewaterhouse Coopers Report, for the period August 1, 2013, to June 29, 2015, would be $11,129.01. This was paid to the applicant.
ANALYSIS
12The Schedule requires an applicant to file an appeal with the LAT within two years after a denial by an insurance company.3
13The applicant’s position is that the notice sent by the respondent on February 12, 2016, and May 30, 2016, was unclear. Therefore the limitation period (rolling limitation period) should run from February 12, 2016, or May 30, 2016. The applicant states that as the denial had no specific amount being denied, that it was a general denial and therefore was an improper denial.
14The applicant takes the position that the correspondence from the respondent also failed to appropriately advise the applicant of his right to dispute the denial within two years, after the insurer refused to pay the claim.
15The respondent’s position is that adequate notice as required by the Schedule was given to the applicant on January 8, 2015, and on June 15, 2015, and that the applicant therefore failed to file his appeal on or before the limitation period of two years as required by the Schedule.
16I agree with the respondent that the applicant had been given proper written notice dated January 8, 2015, and June 15, 2015 as to the two year limitation period to appeal, and relating to the denial of the IRB benefit claimed. It is the June 15, 2015 letter to the applicant that clearly sets out the denial for further benefits.
17I find that the respondent, once it had the requested information from the applicant, calculated and paid the moneys found owing for the period from August 1, 2013, to June 29, 2015.
18I find that the notice denying the benefit in on June15, 2015, met all of the Schedule requirements.
19The Court of Appeal has held that the Schedule and the Insurance Act must be read in accordance with the modern approach to statutory interpretation. The adjudicator’s interpretation should “comply with the legislative text, promote the legislative purpose, reflect the legislature’s intent and produce a reasonable and just meaning.4
20Section 56 of the Schedule states that an application shall be commenced after two years, after the insurer’s refusal to pay the amount claimed. (emphasis mine). Section 281.1 of the Insurance Act states an application shall be commenced after two years after the insurer’s refusal to pay the benefit claimed. (emphasis mine).
21I find that the Schedule is a regulation under the Insurance Act and therefore the Act language would take precedent. The amount does not need to be specified but only the benefit claimed. Any other interpretation would lead to many situations where denials do not relate to any amount of money. (ie. Catastrophic Impairment; not accident based, and exclusions under section 31 etc.) Also where quantum needs to be determined, it would mean that the insurer could never deny benefits until quantum was determined and until all sufficient information was obtained from the applicant. This could postpone intentionally or unintentionally, the resolution of any application. The Ontario Court of Appeal has stated that one of the primary purposes of the Schedule is to ensure the timely submission and resolution of claims for accident benefits.5
22Section 7of the Licence Appeal Tribunal Act allows the Tribunal to extend the time for giving notice either before or after the expiration of the limitation of time, if the Tribunal is satisfied that there are reasonable grounds for applying the extension and for granting relief.
23The courts have set out four factors to determine whether the justice of the case requires that the extension be granted6. Those factors are: the existence of a bona fide intention to appeal within the appeal period; the length of delay, the prejudice to the other party and the merits of the appeal. The applicant has not addressed these specific factors in his written arguments.
24I find that I have no written submissions before me to satisfy the Tribunal on the four factors, that there are reasonable grounds for applying the extension and for granting relief.
25I find therefore that the applicant has missed the two year limitation period by filing his appeal on February15, 2018.
26I am not granting an extension under section 7 of the LAT Act to the applicant, and I am therefore dismissing this application.
Released: October 18, 2018
Robert Watt
Adjudicator
Footnotes
- O. Reg. 34/10.
- Schedule sec.5
- Schedule sec 56
- Haldenby v. Dominion of Canada General Insurance CO. (2001) 2001 CanLII 16603 (ON CA), 55 OR (3d) 470 (ONCA) at para 19, Respondent Book of Authorities Tab 9
- Sietzema v. Economical, 2014 ONCA 111. Para 16
- Manuel v Registrar, Motor Vehicle Dealers Act 2002, 2012 ONSC 1492