J.V. v. Economical Insurance Company, 2018 CanLII 142935

Tribunal File Number: 18-001145/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

J.V.

Applicant

and

Economical Insurance Company

Respondent

AMENDED PRELIMINARY DECISION

PANEL: Robert Watt, Adjudicator

APPEARANCES:

For the Applicant: Savannah Chorney

For the Respondent: Ashleigh Leon

Heard: In Writing on: October 15, 2018

OVERVIEW

1The applicant was injured in a motor vehicle accident on March 3, 2015, and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule-effective September 1 2010¹ (the “Schedule”). She applied to the Licence Appeal Tribunal-Automobile Accident Benefits Service (the “Tribunal”) when her claims for benefits were denied by the respondent.

2A case conference was held on June 12, 2018, and the respondent raised a preliminary issue which is the subject of this decision.

PRLIMMINARY ISSUE

3Is the applicant statute- barred under section 56 of the Schedule from claiming income replacement benefits and attendant care benefits to the Licence Appeal Tribunal within two years after the insurer’s refusal to pay the amount claimed, which refusal was July 20, 2015?

RESULT

4The applicant is statute barred under section 56 of the Schedule from claiming income replacement benefits. and attendant care benefits.

BACKGROUND

5The applicant submitted an application for accident benefits to the insurer on July 9, 2015. The application in Part 8 confirmed that she was employed at Torlys Smart Floors as a customer service representative and that her accident related injuries did not prevent her from working.

6The respondent on July 20, 2015, by written correspondence indicated to the applicant and by fax to her lawyer, that the applicant was not entitled to income replacement benefits (IRB), because she was working. The written correspondence also set out the process for the applicant to dispute the denial and a warning about the two year period. The applicant maintains that she never received the July 20th, 2015 letter and that no letter was found in the file when her counsel received it from the respondent.

7A further letter dated July 5, 2016, from the respondent to the insured confirmed again non- entitlement to the IRB and made a reference to the July 20, 2015 letter.

8The applicant’s counsel wrote to the respondent on March 29, 2016 asking for a complete copy of the respondent’s file. They received the file on May 17, 2016.

9An OCF-2 was completed on April12, 2016, and submitted to the insurer on April 19, 2016, with a request to calculate the applicant’s IRB and issue payment. An OCF-3 was completed on June 21, 2016, and sent to the respondent. The OCF-3 indicated that the applicant suffered a substantial inability to perform the task of her employment at the time of the accident as a result of and within 104 weeks of the accident. The respondent by letter dated July 7, 2016, advised the applicant’s counsel that it was not changing its position from the July 20, 2015 letter.

10The applicant’s new lawyer on January 11, 2017, sent a letter to the respondent asking the respondent, to reconsider the decision made with respect to the respondent’s denial of the IRB.

11The applicant submitted an application by Injured Person to the Licence Appeal Tribunal on February 14, 2018, one of the issues being the entitlement to an IRB.

ANALYSIS

Time frame for filing an appeal

12Section 280 of the Insurance Act R.S.O. 1990 c1.8 and section 56 of the Schedule requires any dispute regarding benefits, to be filed within two years after the insurer’s refusal to pay the amount claimed.²

13The applicant’s position is that any limitation period should start from the time that the applicant received the letter from the insurer on July 7, 2016, which alerted the applicant to the July 20, 2015, denial letter. The applicant relies on the section 5, of the Limitations Act which sets out the discoverability rule.

14I find that there are several problems with the position of the applicant. Firstly, the Limitations Act, 2002 does not apply to tribunals and the matters that come before it. The Limitations Act applies only to courts and the litigation issues brought before the courts. Tribunals are not courts and most like this tribunal have their limitation periods to be complied with.³

15Secondly, the fact that the letter was faxed to the applicant’s previous counsel with the confirmation confirming that it was received⁴, means that the applicant received the letter. There is no evidence before me to dispute that the applicant’s first lawyer did not receive the July 20, 2015 letter. The courts have held that once the legal representative of the applicant has knowledge of the July 20, 2015 letter, that knowledge is imputed to the applicant. ⁵

16The courts have also held that the denial does not run from the date that the disability certificate is filed, but from the date of the denial letter.⁶

17I find therefore that the applicant has not filed a dispute within the required time frame, as set out in the Schedule.

Extending the time frame to file dispute regarding benefits

18Section 7 of the Licence Appeal Tribunal Act (LAT) permits the Tribunal, under certain circumstances to extend the time for an applicant to file a dispute. The courts have set out four factors to be looked at: the existence of a bona fide intention to appeal within the appeal period; the length of delay; prejudice to the other party and the merits of the appeal. The courts have held that the four factors are subject to a broader rule that that extensions should be granted “ if the justice of the case requires it.”⁷

Existence of a bona fide intention to appeal

19There is no evidence before the Tribunal that the applicant had a bona fide intention to appeal. Even after the respondent’s letter to the applicant on July 7, 2016 reiterating the same position of denial (as set out in the respondent’s July 20, 2015 letter), the applicant failed to file a dispute. There have been no reasons given why the applicant did not file her dispute within the required two year required limitation period. Requests by the applicant’s counsel to the insurer, to reconsider its position does not equate with filing a dispute with the Tribunal.

Length of Delay

20The dispute was filed seven months after the expiry of the limitation period. Again there is no explanation before the Tribunal for the delay.

Prejudice to the Insurer

21The insurer has not had the opportunity to conduct sec 44 examinations in a timely manner and assess the merits of this claim put forth by the applicant. A proper assessment now would be difficult to do, relating to both pre-104 week and post 104 week entitlement. This assessment now, I find would prejudice the respondent.

Merits of the appeal

22There has been no evidence put before the Tribunal setting out the merits of the appeal. The OFC-3 indicates that the applicant suffered a substantial inability to perform the tasks of her employment, but does not set out any details supporting that finding.

23I 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 granting the relief asked for.

Clear and unequivocal denial

24The applicant raises the issue that the July 20, 2015 denial was not clear and unequivocal. The Tribunal disagrees. I find that the denial is clear and unequivocal outlining the applicant’s right to dispute the denial, the steps in the dispute process and the warning about the two year time limit to commence a dispute.

Denial prior to application

25The applicant argues that the applicant did not apply for IRB benefits on the OCF-1 and therefore the respondent’s denial in its July 20, 2015, letter, is not a valid denial triggering a limitation period. The OCF-1 application for accident benefits filed on March 18, 2015 constitutes an application for all weekly benefits and an insurer can accept or reject all types of weekly benefits based on it.⁸ I find that the denial therefore was not premature and the respondent’s denial on July 20, 2015, triggered the limitation period.

26I find that the applicant has missed the two year limitation period by filing her appeal on February 14, 2018, for both the income replacement benefits. and the attendant care benefits.

27I am not granting an extension under section 7 of the LAT to the applicant. I am therefore dismissing her application.

28The Tribunal will schedule a resumption of the case conference to address the other issues in dispute between the parties which are identified in the order of the Tribunal released on October 12, 2018

Footnotes

1. 1Application for Accident Benefits dated March 18, 2015 Perth’s Document Brief Tab 1
2. 2Insurance Act R.S.O. 1990 c.18/Schedule sec 56
3. 3Limitations Act 2002 sec 2
4. 4Affidavit of Alyson Rzeszutko Exhbit B of the Respondent’s Material
5. 5Parmar v Teachers Life 2017 ONSC 2329 para 39, 42
6. 6Sagan v. Dominion of Canada General Insurance Company 2014 ONCA 720
7. 7Frey v MacDonald 1989 CarswellON.343 para 3
8. 8Western Assurance Company v. Cejvan (FSCO Appeal P14-00007) page 4