M.S. v. Economical Mutual Insurance Company, 2019 CanLII 72216

Tribunals Ontario Safety, Licensing Appeals and Standards Division 77 Wellesley Street West, Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca

Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes i. 77 rue Wellesley Ouest, Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca

RECONSIDERATION DECISION

Before: Lori Marzinotto, Vice-Chair

Date: June 19, 2019

File: 17-004874/AABS

Case Name: M.S. v. Economical Mutual Insurance Company

Written Submissions By:

For the Applicant: J. Patrick Brown, Counsel

For the Respondent: Lisa Armstrong & Shalini Thomas, Counsel

OVERVIEW

1This Request for Reconsideration, filed by the applicant, arises from a preliminary issue decision dated March 12, 2018. The Licence Appeal Tribunal (the “Tribunal”) found the applicant was precluded from proceeding to a hearing with respect to her claim for non-earner benefits (“NEB”) on the basis that her dispute was statute barred.¹

2Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

RESULT

3The applicant’s Request for Reconsideration is dismissed.

BACKGROUND

4The applicant was injured in an automobile accident on November 25, 2011 and applied for accident benefits, including NEBs. The applicant was a minor on the date of the accident.

5The respondent denied the NEB in a letter dated February 7, 2012.

6The applicant turned 18 years of age in November 2014 but did not apply to the Tribunal for dispute resolution until July 20, 2017.

7The applicant argues that the February 7, 2012 denial letter was not clear and unequivocal because it did not advise the applicant that she was not yet eligible for the benefit until she was 16 years of age and that the limitation would not begin to run until the applicant turned 18 years old.

8The applicant argues that the Tribunal made significant errors of law and fact.

9The respondent submits that the Tribunal did not make any error in law or fact and that the request for reconsideration should be denied. I agree. The Tribunal’s decision dated August 13, 2018 does not contain any errors of law or fact that would have led the Tribunal to reach a different decision.

ANALYSIS

10The grounds for a Request for Reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice & Procedure (the “Rules”)². A Request for Reconsideration will not be granted unless one or more of the following criteria are met:

(a) The Tribunal acted outside its jurisdiction or violated the Rules of natural justice or procedural fairness;

(b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made;

(c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or

(d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.

11The applicant submits that the Tribunal made significant errors of law and fact. More specifically, the applicant submits the Tribunal erred by:

i. Finding that the February 7, 2012 denial letter was clear and unequivocal;

ii. Relying on Sietzema v. Economical Mutual Insurance Company³;

iii. Excusing aspects of the denial letter that the applicant states was unclear;

iv. Finding that the respondent’s actions subsequent to the February 7, 2012 denial did not create reasonable doubt; and

v. Failing to rely upon Zeppieri v. Royal Insurance Co. of Canada.⁴

12The applicant asserts that when the respondent sent its August 15, 2016 letter advising that it was scheduling insurer’s examinations, this created reasonable doubt around the February 2012 denial letter. Further, this doubt was to the applicant’s detriment. I do not agree. I agree with the Tribunal’s finding that the respondent’s subsequent actions to the February 2012 denial did not create a reasonable doubt to the applicant’s detriment.

13The respondent points out that instead of commencing a dispute at the Tribunal prior to the expiration of the limitation period, it was the applicant who unilaterally submitted an OCF-3, dated June 21, 2016. There was no unilateral request from the respondent for further information following the denial.

14I agree with the respondent that once it received the OCF-3 in 2016, it was obligated to assess the new information provided. As stated in Zeppieri, “…insurance companies are responsible for investigating new information provided after benefits are terminated….The fact that an insurance company reconsiders a prior decision to terminate benefits (as it must do) does not mean that a refusal of benefits only can take place at the completion of that process.”⁵

15As stated in West v. Aviva, the insurer’s ongoing obligation to adjust the file and reconsidering its position does not give rise to a new limitation period⁶. The insurer reiterated that the applicant was not entitled to Non-Earner Benefits. The Tribunal clearly distinguished the cases the applicant relied upon⁷ and pointed out that at no time did the insurer advise the applicant that it was reconsidering the applicant’s entitlement to Non-Earner Benefits.

16I agree with the Tribunal’s finding and find no error in fact that the respondent’s letter dated August 15, 2016 in response to the June 21, 2016 OCF-3 specifically referenced the February 7, 2012 denial.

17Haldenby v. Dominion of Canada General Insurance Co.⁸, is quite clear in that there is no provision in the Schedule for an insured to reapply for benefits once it has been terminated. The only remedy for the insured is to appeal the decision within a two year period.

18I agree that the February 2012 denial was clear and unequivocal. It provided the basis of the denial of the NEB and provided the information on the dispute resolution process. The respondent’s letter dated August 15, 2016 in response to the applicant’s June 21, 2016 OCF-3 not only references the February 7, 2012 denial but included the reasons why the applicant did not qualify for the NEB.

19The fact that the respondent was scheduling insurer’s examinations (for multiple benefits not just the NEB) did not extend the limitation period but was part of its ongoing obligation to adjust the file. Of note is the fact that the August 15, 2016 which specifically referenced the February 7, 2012 denial was copied to applicant’s counsel.

CONCLUSION

20For the above reasons, I dismiss the applicant’s Request for Reconsideration.

Lori Marzinotto Vice-Chair

Tribunals Ontario - Safety, Licensing Appeals and Standards Division

Footnotes

1. 1Pursuant to s.280 of the Insurance Act and s. 56 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
2. 2Common Rules of Practice & Procedure, Licence Appeal Tribunal, Animal Care Review Board, Fire Safety Commission, October 2, 2017
3. 3Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111 (“Sietzema”)
4. 4Zeppieri v. Royal Insurance Co. of Canada, [1994] OICD No. 13 (FSCO) (“Zeppieri”)
5. 5Zeppieri at paragraphs 57, 58
6. 6West v. Aviva, FSCO A08-000170, December 18, 2008 at page 11.
7. 7Zeppieri, Raffav. Personal Insurance of Canada, 2017 CarswellOnt 3461 (FSCO) and Garminder v. Co-operators, 2013 CarswellOnt 15086 (FSCO)
8. 8Haldenby v. Dominion of Canada General Insurance Co. (2001) 2001 CanLII 16603 (ON CA), O.J. No. 3317 at paragraph 30