A.O. v. Unifund Assurance Company, 2019 CanLII 58192

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:

A.O.

Applicant

and

Unifund Assurance Company

Respondent

DECISION ON A PRELIMINARY ISSUE

ADJUDICATOR:

Lindsay Lake

Appearances:

For the Appellant:

Bobby Vujicic, Paralegal

For the Respondent:

Jonathan Tatner, Counsel

Heard IN WRITING:

December 17, 2018

OVERVIEW

1[The Applicant, A.O.,] was involved in a rear-end automobile accident as a passenger on October 3, 2015, and sought benefits from the respondent, Unifund Assurance Company (“Unifund”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).

2A.O. received weekly income replacement benefits (“IRBs”) from Unifund for the period of October 10, 2015 to March 18, 2016. Unifund terminated A.O.’s IRBs via an explanation of benefits (“EOB”) that was received by A.O.’s counsel on March 7, 2018. The termination of A.O.’s IRBs was based on an insurer’s examination report dated March 4, 2016 by Dr. Heitzner, physiatrist, who found that A.O. did not meet the test for IRB entitlement at that time.

3As a result, A.O. first filed an application dated August 23, 2017 with the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) which included a claim for IRBs. The applicant subsequently withdrew this claim on March 6, 2018. A.O. then filed a second application with the Tribunal, which is the basis of the current dispute between the parties, on March 16, 2018.

4The parties participated in a case conference but were unable to resolve all of the issues in dispute. At the case conference, Unifund raised a preliminary issue regarding A.O.’s claim for IRBs. It submits that pursuant to section 56 of the Schedule, A.O. is statue barred from proceeding with her claim for IRBs at the Tribunal because she failed to apply within the limitation period of two years after Unifund’s refusal to pay IRBs.

5A.O. concedes that she did not file her application with the Tribunal for IRBs within the two year limitation set out in the Schedule and, instead, requests that the Tribunal extend the time for filing her application pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G (the “LAT Act”). As a result, a written preliminary hearing was scheduled to address this preliminary issue.

PRELIMINARY ISSUE

6The following preliminary issue is to be decided:

(i) Is A.O. permitted to proceed with her application to the Tribunal, which was filed outside of the two year limitation period set out in section 56 of the Schedule, based on section 7 of the LAT Act?

RESULT OF THE PRELIMINARY ISSUE

7A.O.’s application that was filed with the Tribunal for IRBs after the expiry of the prescribed limitation period of two years is permitted to proceed based on section 7 of the LAT Act.

ANALYSIS

A.O.’s application for IRBs was filed after the expiry of the two year limitation period

8Under section 56 of the Schedule, an applicant has two years to commence an application in respect of a denial of benefits from the date that an insurer refuses to pay the amount claimed.

9Although A.O. set out a chronology of events and made submissions regarding multiple EOBs and correspondence received from Unifund regarding her entitlement to IRBs, I find that A.O. accepts that the date that Unifund notified her of its refusal to pay her IRBs was March 7, 2016, as the relief she seeks in her submissions is an extension of time to file her application pursuant to section 7 of the LAT Act.¹

10There is no dispute between the parties that this application was filed with the Tribunal on March 16, 2018. Therefore, I accept that A.O.’s application for dispute resolution over her entitlement to IRBs was not filed with the Tribunal within the two-year limitation period as prescribed by section 56 the Schedule.

Section 7 of the LAT Act and section 56 of the Schedule

11A.O. has sought relief from the expiry of the section 56 limitation period for her application for dispute resolution over her entitlement to IRBs under section 7 of the LAT Act, which states:

Extension of time

7 Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of 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.

12Unifund refers to a reconsideration of 17-007103 v Unifund Assurance Company,² which at the time of its submissions, had not yet been released. The reconsideration decision³ has since been released and Unifund appears to have made substantially similar submissions regarding the interplay between section 56 of the Schedule and section 7 of the LAT Act in that matter as it did in its submissions in this matter. As such, I find that the following findings of Vice Chair Kershaw in 17-007103 v. Unifund Assurance Company on reconsideration are equally applicable to the issues raised by Unifund in this preliminary hearing:

Section 280 of the Insurance Act deals with the resolution of disputes in respect of an insured person’s entitlement to, or amount of, statutory accident benefits. [Unifund] in its reconsideration submissions refers to section 280.4 of the Insurance Act that states:

The dispute shall be resolved in accordance with the Statutory Accident Benefits Schedule [SABS].

In addition, [Unifund] points to the mandatory language of section 56 of the SABS, specifically that an application shall be commenced within two years, submitting that the legislators did not intend this to be discretionary, and that instead the Tribunal read this as permissive.

The interplay between section 7 of the LAT Act and section 56 of the SABS was considered in the Executive Chair’s reconsideration decision, A.F. [v. North Blenheim Mutual Insurance Company, N.L. v. North Blenheim Mutual Insurance Company⁴]. The Executive Chair analyzed the legislators’ intent, noting that section 7 permits an extension of a limitation period “despite any limitation of time fixed by or under any Act.” The Executive Chair concluded that the legislators could have amended this section of the LAT Act, but did not do so, despite amending other sections of it. For the same reasons, I agree with the Executive Chair’s reasoning that the LAT Act permits the Tribunal to extend a limitation period despite the mandatory language of section 56 of the SABS [emphasis in original].⁵

The test for granting an extension of time under section 7 of the LAT Act

13In determining whether to grant an extension of time under section 7 of the LAT Act, the Tribunal generally weighs the following four factors in order to determine whether the justice of the case requires that the extension be granted:

1. The existence of a bona fide intention to appeal within the appeal period;
2. The length of the delay;
3. Prejudice to the other party; and,
4. The merits of the appeal.⁶

14The four factors are not strict elements that must each be met in order to grant an extension of time.⁷ Rather, they are a guide to assist in determining the justice of the case.⁸ Whether to grant an extension of time depends on the specific facts of each case⁹ and the onus is on the party requesting the extension to show that there are reasonable grounds for granting the extension.¹⁰

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

15I find that A.O. did not have an intention to appeal Unifund’s denial of IRBs within the appeal period primarily because A.O. withdrew her first application to the Tribunal that sought a determination on her entitlement to IRBs for the same period of time as in her current application.

16A.O. submits that her first application was withdrawn “in order to re-file the application to better assist the [Tribunal] by providing medical evidence pertaining to the issue of [A.O.’s] eligibility for post 104 week [IRBs],” however, the notice of withdrawal form dated March 6, 2018, and the accompanying correspondence to Unifund, does not contain any reasons for the withdrawal. Additionally, there is no sworn affidavit evidence before me containing this information and an inference could be drawn from the withdrawal itself that A.O. no longer had an intention for appeal Unifund’s denial of IRBs within the appeal period.

17A.O., however, argues that it was the ambiguity of Unifund’s notice of its denial to pay A.O.’s IRBs that led her to file her second application with the Tribunal on March 16, 2018, which was prior to the two year limitation period date from the termination date of the IRBs on March 18, 2016. A.O. argues that Unifund’s EOBs all refer to the limitation period running from “the insurer’s refusal to pay,” as opposed to the notice of its refusal to pay. A.O. argues that she should not be “punished” for this mistake.

18I do not agree with A.O.’s argument on this factor, especially given that she has been represented by the same paralegal for both her first and second application to the Tribunal. In any event, if A.O.’s representative had confusion over the expiry of the limitation period, one would expect an application to be filed before the earliest potential limitation period date, which did not occur in this matter.

2. The length of the delay

19The length of delay in his matter is very short, at 7 business days.

3. Prejudice to Unifund

20A.O. submits that the prejudice to Unifund is non-existent if an extension of time is granted to allow her application for IRBs to proceed.

21Unifund does not agree and submits that it will be prejudiced. Unifund raises concerns about best evidence for a hearing, and submits that the longer one waits to dispute an issue, the likelihood of the witnesses, the applicant and any expert witnesses to have faded memories will increase. Unifund has not provided any clear examples of it being unable to advance its “best evidence” at a hearing in this matter. Furthermore, a delay of 7 business days is not likely to affect the memories of A.O., any witnesses or experts.

22I find that there no prejudice to Unifund if A.O.’s application for IRBs is allowed to proceed, especially given the very short period of delay in this matter of 7 business days.

4. The merits of the appeal

23While I make no findings of A.O.’s entitlement to IRBs for the period of October 3, 2015, to date and ongoing, as claimed in her application, I find that A.O.’s appeal has some merit.

24A.O. submits that despite an attempt made, she was unable to return to work as a machine operator on modified hours and duties. She has also submitted at least one medical report that addresses both tests for entitlement to IRBs (pre- and post-104 weeks) and clinical notes and records of her family doctor that report on her work status. Unifund made no submissions on this factor.

CONCLUSION

25As all four factors from A.F. need not be met in order to grant an extension of time and are rather a guide to assist in determining the justice of the case, I allow A.O.’s application for dispute resolution over her entitlement to IRBs that was filed with the Tribunal after the expiry of the prescribed limitation period of two years to proceed based on section 7 of the LAT Act because:

(i) the length of delay in this matter is extremely minimal (7 business days);

(ii) the prejudice that would arise in 7 business days to Unifund is non-existent and Unifund has not identified any specific prejudice to it as a result of this delay; and

(iii) there is merit to A.O.’s appeal of Unifund’s denial of IRBs.

26Pursuant to Adjudicator Maedel’s Order dated September 14, 2018, the Tribunal shall schedule, and the parties shall attend, a case conference via teleconference within 30 days of the release of this decision for the purpose of further resolution discussions on the substantive issues remaining in dispute and to set a hearing date, if required.

27If the parties resolve the remaining substantive issues in dispute, A.O. shall immediately advise the Tribunal in writing.

Released: May 28, 2019

___________________________

Lindsay Lake

Adjudicator

Footnotes

1. 1Applicant’s Written Submissions, page 8 at para. 32.
2. 22018 CanLII 83502 (ON LAT).
3. 32019 CanLII 40291 (ON LAT) dated January 10, 2019.
4. 42017 CanLII 87546 (ON LAT) (“A.F.”).
5. 5Supra note 2 at paras. 25-28.
6. 6Supra note 3 at para. 28.
7. 7Ibid. at para. 30.
8. 8Ibid.
9. 9Ibid.
10. 10Ibid. at para. 25.