C.D. v. Aviva Insurance Canada, 2019 CanLII 58160

Licence Appeal Tribunal

Date: 2019-05-21

Tribunal File Number: 18-001548/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:

C.D.

Applicant

and

AVIVA INSURANCE CANADA

Respondent

PRELIMINARY ISSUE DECISION

Adjudicator: Sandeep Johal

APPEARANCES:

Counsel for the Applicant: Warren Whiteknight and Edward V.Bergeron

Counsel for the Respondent: James M. Brown and Cassandra Khatchikian

Heard in writing on: September 4, 2018

OVERVIEW

1The applicant was injured in an automobile accident on June 9, 2002 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996¹ (the ''Schedule'').

2The applicant applied for income replacement benefits (“IRB”) that were denied by the respondent. The applicant disagreed with these denials and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3The respondent raised a limitation issue that the applicant is precluded from filing an application with the Tribunal with respect to the IRB as the applicant did not commence the application within two years of the denial and because of an abuse of process. The respondent contends that as a result of the applicant commencing a negligence action against her former lawyer for missing the IRB limitation period, this application is an abuse of process and the applicant cannot raise the IRB issue before the Tribunal.

PRELIMINARY ISSUE

4The preliminary issue is whether the applicant is statute barred from bringing this application to the Tribunal because the IRB denial was not disputed within the two year limitation period as per section 56 of the Schedule.

5The other preliminary issues as listed in the order dated June 14, 2018 as to whether the application is an abuse of process and whether the respondent has outdated insurer examinations are submissions and defences and not actual preliminary issues.

RESULT

6The applicant’s claim for an IRB is statute-barred in accordance with section 56 of the Schedule. As a result of my finding that the application is statute-barred, there is no need for an analysis on whether the application is an abuse of process and whether the insurer examinations are outdated.

ANALYSIS

Was the respondent’s denial a valid termination which started the limitation clock?

7Section 56 of the Schedule sets out that the application to dispute a denial of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.

8It is my finding that the respondent’s refusal to pay the IRB was valid and the limitation clock began to run on the date of that denial which was January 31, 2011 and therefore the applicant is out of time to dispute the IRB issue at the Tribunal.

9The applicant submits the limitation period never began to run as the respondent did not comply with the requirements of a valid denial of the IRB. Her position is that the denial was improper because the respondent did not request a subsequent OCF-3 as the original one was check marked “N/A” rather than “Yes” or “No” to the question of whether the applicant was entitled to an IRB. As a result, according to the applicant, the denial is not valid and never began to run.

10An OCF-3 is also referred to as a Disability Certificate and is completed by the applicant’s health practitioner who provides an opinion of the applicant’s impairments after completing a medical assessment of the applicant.

11The applicant further submits that the respondent was required to request another OCF-3 because the “N/A” meant the OCF-3 was incomplete, invalid and inapplicable.

12The respondent’s position is that the applicant failed to dispute the denial of her IRB by January 31, 2013 which was the two-year mark from the denial date. The respondent submits that after an IE assessment was completed, the respondent determined the applicant did not meet the test for an IRB and it was subsequently denied by way of a letter dated January 31, 2011 and that was the date the limitation clock began to run. The limitation period expired on January 31, 2013 and it was not until five years later that the applicant commenced this proceeding. According to the respondent, the applicant is therefore statute-barred in accordance with the Schedule.

13I agree with the respondent and I am not persuaded by the applicant’s submissions. I was not directed to any evidence or authorities by the applicant that there is an obligation on the respondent to request another OCF-3 if the doctor completing the OCF-3 erroneously or not check marked “N/A” to the question of whether the applicant meets the test for an IRB and whether that means the OCF-3 is incomplete, invalid and inapplicable. In my opinion, that does not change the denial or termination of the benefit from being proper.

14The applicant further submits case law from the Financial Services Commission of Ontario (“FSCO”) and although I am not bound by FSCO case law, I do not find the cases to be persuasive to the applicant’s position. Both cases² state that section 37 of the Schedule must be complied with, meaning that the OCF-3 must be requested before scheduling an insurer examination (“IE”). If that was not done then the limitation period does not begin to run. Those facts do not apply in the present case.

15The parties do not agree on whether the 1996 Schedule or the 2010 Schedule applies to this denial. In any event, the applicant’s position is that the respondent has not complied with either version of the Schedule. In my opinion, the respondent complied with the current Schedule and the 1996 version of the Schedule and requested an OCF-3 before scheduling an IE assessment to determine whether the applicant was entitled to an IRB. The respondent is still entitled to make its own assessment of the applicant on whether she is entitled to an IRB regardless of what the OCF-3 says and any denial that may flow as a result of that assessment would still be valid.

16According to case law from the Superior Court of Justice³ and the Ontario Court of Appeal⁴, which is binding on this Tribunal, the respondent’s refusal to pay benefits may be premature and may include benefits the applicant has yet to apply for or claims that have yet to crystalize and this will still be a valid and proper denial that will start the limitation clock. In my opinion that means the respondent is entitled to make a determination based on the opinions contained in the IE assessments regardless of what the OCF-3, or what other forms may say as long as the proper process of scheduling an IE was in accordance with the Schedule and the denial was clear and unambiguous.

17Having already found that the respondent followed the proper procedure to require the applicant to attend the IE assessments, the respondent was then required to send a clear and unambiguous denial to the applicant.

18The respondent submits it sent a clear and unambiguous letter denying the IRB on January 31, 2011 therefore the applicant had until January 31, 2013 to commence an application to dispute the denial. The applicant does not submit that the denial letter was not clear and unambiguous, her submissions focus exclusively on the OCF-3 issue as discussed above.

19The applicant has not made any submissions with respect to exercising my discretion and applying section 7 of the Licence Appeal Tribunal Act⁵ to extend the limitation period. However the respondent has made submissions on the applicability of section 7 of the LAT Act and submits that it does not apply in the context of accident benefits and even if it does, the applicant has failed to satisfy the test under section 7 of the LAT Act in order to be granted an extension of the limitation period.

Should the Limitation period be extended by virtue of [section 7](https://www.canlii.org/en/on/laws/stat/so-1999-c-12-sch-g/latest/so-1999-c-12-sch-g.html#sec7_smooth) of the [LAT Act](https://www.canlii.org/en/on/laws/stat/so-1999-c-12-sch-g/latest/so-1999-c-12-sch-g.html)?

20The Tribunal has jurisdiction to extend the time for filing of an appeal pursuant to section 7 of the LAT Act⁶ which reads:

Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal under section 11 or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,

a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and

b) give the directions that it considers proper as a result of extending the time.

21In Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492, the Divisional Court ruled that the overriding consideration on a request for an extension of time is whether the justice of the case requires that the extension be granted. The factors to be considered in making this determination are:

a. The existence of a bona fide intention to appeal within the appeal period;

b. The length of the delay;

c. Prejudice to the other party; and

d. The merits of the appeal.

22The appellant has the onus to establish that the justice of the case requires the granting of the extension, but he or she need not satisfy all four factors. Rather, the analysis requires a balancing of the conclusions reached when applying the facts of the case to the factors.

Did the applicant have a bona fide intention to appeal?

22In the present case, the applicant has not provided me with any submissions with respect to the four factors in considering the extension of the limitation period and whether there was a bona fide intention to appeal during the appeal period. The respondent submits that the applicant’s former counsel did not have any bona fide intention to dispute the limitation period and that was the reason for the solicitor’s negligence action.

23The applicant commenced a legal action against her former legal counsel for not disputing the denial of the IRB within the 2 year limitation period which is the subject of this dispute. The fact that the applicant has taken the extra step of commencing legal action against her former counsel for negligence for not appealing the IRB denial, may speak to the applicant’s bona fide intention to appeal. Although that may have been the applicant’s intention however as I have no submissions or evidence from the applicant on any bona fide intention to appeal within the limitation period, I find that the applicant has not satisfied the first factor.

The length of the delay

24The length of the delay is almost five years before the dispute of the denial was brought to the Tribunal and I find this to be a significant delay and as a result, this second factor does not favour the applicant.

Prejudice to the respondent

25I find the prejudice to the respondent outweighs any prejudice to the applicant. With a delay of almost five years, it would be prejudicial to the respondent and procedurally unfair to have to defend its case with no medical information since that time and based on medical reports that date back to 2011.

Merits of the appeal

26This factor does not require me to make a determinative ruling on the merits, but on the facts to assess whether the applicant has a reasonable chance of success. In my opinion, this is not a determination that can be made at this time. This written hearing was a preliminary issue hearing and not on the merits of the applicant’s case. I am unable to make a ruling on this factor.

27All four factors do not need to be satisfied as stated above, however an analysis when balancing all the factors as discussed above leads me to conclude that the discretion to extend the limitation period and the justice of the case does not warrant extending the limitation period.

28As a result of finding that the applicant is statute-barred with respect to an IRB claim there is no need for a discussion on whether this application is an abuse of process or whether the claim for an IRB is prejudiced by insufficient and outdated insurer’s medical examinations of the applicant.

ORDER

29The application for IRB’s is statute barred in accordance with section 56 of the Schedule and is hereby dismissed.

Released: May 21, 2019

___________________________

Sandeep Johal

Adjudicator

Footnotes

1. 1O. Reg. 403/96.
2. 2State Farm Mutual Automobile Insurance Company v Yogesvaran, 2010, FSCO Appeal P09-00042 and Nadarajh v RBC General Insurance Company 2013 FSCO Appeal P13-00010
3. 3Katanic v. State Farm Mutual Automobile Insurance Company, 2013 ONSC 5103
4. 4Bonaccorso v. Optimum Insurance Company Inc., 2016 ONCA 34 and Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111
5. 5Licence Appeal Tribunal Act, 1999, S.O. 1999, c.12, Sch. G (“LAT Act”)
6. 6A.F. v North Blenheim Mutual Insurance Co., 2017 CanLII 87546 (ONLAT)