17-003105/AABS v. Brant Mutual Insurance Company, 2018 CanLII 8083

17-003105/AABS v Brant Mutual Insurance Company

Date: 2018-01-24 Tribunal File Number: 17-003105/AABS Case Name: 17-003105/AABS v Brant Mutual Insurance Company

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:

Applicant

Applicant

and

Brant Mutual Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR: Paul Gosio

APPEARANCES:

Counsel for the Applicant: Arthur Lefebvre Counsel for the Respondent: Robert Rogers

HEARD: In-Person October 16, 2017

Issue

1This is a preliminary issue hearing brought by the respondent to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“LAT”). The respondent is seeking an Order that the applicant’s attempt to pursue an attendant care benefit is barred due to a limitation period.

Overview

2The applicant was involved in a motor vehicle accident on January 4, 2005. Shortly after the accident, the applicant submitted an Application for Accident Benefits and an Activities of Normal Life form to the respondent.

3On February 11 and 25, 2005, at the request of the respondent, the applicant was assessed by Moira Hunter, an occupational therapist. Based on Ms. Hunter’s report, the respondent sent the applicant a denial letter dated April 6, 2005, along with an OCF-9 indicating that she was not entitled to an attendant care benefit.

4The applicant did not expressly claim for attendant care benefits in 2005. A request for attendant care benefits was made in October 2015 after the applicant had been determined to be catastrophic. This was the first and only time a Form 1 had been submitted to the respondent.

5The respondent denied the applicant’s 2015 request for attendant care benefits on the basis that it had properly denied entitlement to the benefit on April 6, 2005. The respondent takes the position that because the applicant failed to initiate a mediation, arbitration or lawsuit within two years of the denial as mandated in s.281.1 of the [Insurance Act]¹, she is now statute barred from doing so.

6The applicant claims that she is not barred from seeking an attendant care benefit for the following three reasons:

I. No claim for attendant care benefits was made in 2005 and therefore the respondents denial in 2005 is not valid;

II. The respondents 2005 denial of attendant care benefits does not meet the test of “clear and unequivocal”; and

III. There can be no denial of an attendant care benefit if the mandatory procedural requirements for applying for the benefit are not followed.

Result

7I find that the applicant is barred from proceeding with her application for attendant care benefits as she did not dispute the termination of the benefit within two years of the respondent’s denial.

Discussion

8The central issue in this case is whether the respondent’s premature denial of the attendant care benefit on April 6, 2005, was sufficient to trigger the two year limitation period.

9The key to determining this issue is found in the Supreme Court of Canada decision of Smith v. Co-operators General Insurance Co.², which states that a limitation period cannot commence unless the insurer’s denial is in writing and is found to be clear and unequivocal.

10A clear and unequivocal denial must be straightforward and in clear language directed towards an unsophisticated person. The denial must also provide information about the different stages in the dispute resolution process and the relevant time limits that govern the entire process. The dispute in this case is focused on whether the denial was clear and unequivocal.

11After reviewing the OCF-9 and the accompanying letter dated April 6, 2005, I find that the respondent’s denial was clear and unequivocal.

12In Part 4 of the OCF-9, the attendant care benefit was checked off as “Item not payable.” Part 4 also clearly states: “the occupational therapist report completed by Moira Hunter indicated that you did not require any attendant care. Accordingly you would not be eligible for attendant care assistance.”

13The accompanying letter dated April 6, 2005 states: “Please note, that the assessment indicated, that you did not suffer a substantial inability to perform your housekeeping chores. It also indicated, that you did not require any attendant care. In lieu of this, you would not be eligible for housekeeping or attendant care assistance.”

14The applicant submits that I must consider the contents of Moira Hunter’s report in my analysis of whether the denial was clear and unequivocal as her report forms the basis of the denial and is referred to in the OCF-9 and the letter dated April 6, 2005.

15In the summary section of Ms. Moira’s report she states: “At this time the client does not require housekeeping assistance or attendant care.” The applicant suggests that the wording “at this time” leaves open the possibility that the benefit may be required at some point in the future. This then, makes the denial unclear and ambiguous.

16I am not persuaded by the applicant’s submission. Even if I took Ms. Moira’s report into consideration, I would still find the respondent’s denial to be clear and unequivocal.

17The applicant also submits that the April 6, 2005 denial is not valid because she had not made a claim for the attendant care benefit prior to the denial. Furthermore, the applicant suggests that there can be no denial of an attendant care benefit if the mandatory procedural requirements for applying for the benefit are not followed. This mandatory procedure was not initiated until the applicant became catastrophic in 2015. I disagree with the applicant’s submissions.

18The Court of Appeal decision in Sietzema v. Economical Mutual Insurance Company³, provides clarity with respect to the application of the two year limitation period as set out in s. 281.1(1) of the [Insurance Act] and s.51(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010⁴. The Court of Appeal held that an insurer’s clear and unequivocal denial of a benefit, even if legally incorrect, is sufficient to trigger the limitation period. The refusal to pay a benefit may also be premature and may include benefits that the applicant has yet to apply for.

19I acknowledge that Sietzema dealt with an income replacement benefit whereas in this case we are dealing with an attendant care benefit. This difference does not change the applicability of the legal principles which are binding on me.

20Having found that the respondent’s denial is clear and unequivocal and being bound by Sietzema, I find that the two year limitation period was triggered on April 6, 2005. Since the applicant failed to initiate a mediation, arbitration or lawsuit within two years of the denial, she is now statute barred from doing so.

21The applicant shall contact the Tribunal in order to schedule a case conference so that the remaining issues in dispute can be addressed.

Footnotes

1. 1R.S.O 1990, c. I.8, s. 281.1.
2. 2[2002] 2 SCR 129, 2002 SCC 30.
3. 32014 ONCA 111, 118 OR (3d) 713
4. 4O. Reg. 34/10