S. S. v. Allstate Canada, 2019 CanLII 76842

Tribunal File Number: 18-002292/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:

S. S.

Applicant

and

Allstate Canada

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Arash Goneh-Farahani, Counsel

For the Respondent: Peter Yoo, Counsel

HEARD: In Writing on October 9, 2018

OVERVIEW

1The applicant was injured in an automobile accident on February 20, 2015 and sought benefits from the respondent pursuant to O. Reg. 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent refused to pay for certain benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

2The respondent raised a preliminary issue in response to the application to the Tribunal which is the subject of this hearing.

ISSUES

3The preliminary issue in dispute is:

1. Is the applicant barred from proceeding with this claim for non-earner benefits (NEBs) for failure to commence an application within two years after the respondent’s refusal to pay the amount claimed pursuant to section 56 of the Schedule?

RESULT

4The applicant is barred from proceeding with this claim for NEBs.

BACKGROUND

5The applicant was involved in an accident on February 20, 2015 and applied for and received accident benefits from the respondent. During the process of adjusting the applicant’s claim, the respondent denied entitlement to NEBs by way of an Explanation of Benefits dated March 9, 2016, which was delivered to the applicant by fax on March 10, 2016.

6The applicant filed an Application for Mediation with the Financial Services Commission of Ontario (FSCO) dated March 14, 2016 to dispute the respondent’s denial of NEBs. FSCO was legislatively tasked with adjudicating accident benefits disputes prior to the creation of the Automobile Accident Benefit Service at the Tribunal.

7A mediation proceeding at FSCO was scheduled but did not take place within the legislatively mandated 60 days and the applicant’s file was subsequently closed as a result.

8The applicant retained new counsel, UB, around June 14, 2016. A copy of the applicant’s accident benefits file (“AB file”) was delivered to UB on July 13, 2016.

9The applicant later retained a third, new representative, Farahani Law, around August 20, 2017. Farahani Law advised the respondent they were retained by the applicant and requested a copy of the applicant’s AB file.

10On August 24, 2017, the respondent sent a copy of the applicant’s AB file. However, instead of sending it to Farahani Law, the respondent sent it to the applicant’s previous counsel, UB.

11There was no contact between the parties after August 2017 until March 9, 2018, when the respondent emailed counsel for the applicant to advise the two-year limitation period expired on March 8, 2018.

12The respondent eventually provided Farahani Law with the applicant’s AB file on March 12, 2018.

13The applicant filed an application with the Tribunal dated March 15, 2018.

THE TWO YEAR LIMITATION PERIOD

14The applicant has commenced an application more than two years following the respondent’s refusal to pay a benefit. As a result and pursuant to section 56 of the Schedule, the applicant may not proceed with the application.

15Section 56 outlines that an application for dispute resolution must be commenced within two years of the refusal to pay the amount claimed. The applicant does not dispute this, nor does the applicant dispute the application was filed more than two years after the refusal to pay.

SECTION 7 OF THE LICENCE APPEAL TRIBUNAL ACT

16Instead, the applicant asks the Tribunal to exercise its discretion and extend the limitation period as provided in section 7 of the Licence Appeal Tribunal Act (“the LAT Act”). Pursuant to section 7, the Tribunal must be satisfied that the applicant has provided reasonable grounds to extend the limitation period.

17The following four factors must be considered when deciding whether to extend the limitation period pursuant to section 7 of the LAT Act; the existence of a bona fide intention to appeal within the appeal period; the length of delay; the prejudice to the other party; and the merits of the appeal. I will address these four factors as they relate to the arguments.

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

18The respondent submits the applicant has not exhibited a bone fide intention to appeal within the appeal period and highlights the applicant’s inaction following the closure of the FSCO mediation file as an example. The applicant disagrees and submits the transition of the dispute resolution process from FSCO to the Tribunal caused confusion for the applicant and the applicant’s intention to appeal is exemplified the efforts to retain new legal representation following the closure of the FSCO mediation file.

19I find confusion around the transition of the dispute resolution process from FSCO to the Tribunal is not a reasonable ground to extend the limitation period in this case. This jurisdictional transition occurred on April 1, 2016, which is slightly more than 23 months prior to the application filed with the Tribunal. Considering this, I find the applicant had sufficient time to clarify any ambiguity with respect to the timelines to commence an appeal. In addition, any confusion should have been clarified when the applicant retained current counsel on August 20, 2017 which is more than a year after the Tribunal became the sole venue to file new accident benefit related applications.

20Further, I find the applicant’s actions, or lack thereof, during the period following the closure of the FSCO mediation file does not support a finding of a bona fide intention to appeal within the appeal period. The applicant may have twice retained new counsel and requested the AB file however; I see no evidence of any attempt to follow-up with the respondent after the request and no evidence the applicant was concerned with any pending limitation deadlines. I find the applicant’s actions are only evidence the applicant is seeking legal advice and/or information and not evidence of an intention to appeal.

The length of delay

21The applicant filed this appeal within 3 days of receiving the AB file and is asking to extend the limitation period by 5 days. From the applicant’s perspective, this may seem like a short length of delay, but this perspective fails to account for the significant time gap between the end of the mediation process at FSCO and the filing of this application.

22The applicant puts the respondent at fault for the delay on account of the respondent’s failure to deliver the AB file in a timely manner. The respondent disagrees and submits this is not a reasonable explanation because the applicant, despite having a representative, has an obligation to keep informed of the claim.

23I agree with the respondent find the applicant has not provided a reasonable explanation for the delay in filling the appeal. I see no submissions, evidence, or allegations the initial denial was improper, not delivered by the respondent, lost by the applicant, or any other reason why the applicant is not aware of the denial. In my opinion, the significant delay is attributable to the applicant.

The prejudice to the other party

24The applicant contends the respondent has not provided any evidence it would be prejudiced by reviving the application after a missed limitation period. Further, the applicant submits the respondent suffers no prejudice as it has been aware of the applicant’s claim since the date of the accident.

25While the prejudice to the applicant is significant in that it bars the applicant from claiming NEBs, and potential financial compensation, this position fails to consider the prejudice to the respondent in defending a claim after a long delay. The respondent denied the applicant entitlement to NEBs on the advice of assessors in reports which were produced more than two years before this appeal was filed. This forces the respondent to locate, produce, and rely on experts and evidence which may not be available anymore.

The merits of the appeal

26The respondent submits the applicant’s appeal for NEBs is without merit. The applicant disagrees and claims to suffer from debilitating physical and psychological injuries and argues the issue in dispute, entitlement to NEBs, is serious and deserves full engagement before the Tribunal. The respondent retorts there is no evidence to support the applicant’s merit argument.

27I find I am unable to determine the applicant’s appeal has merit because I have no evidence in support of the applicant’s claim that debilitating physical and psychological injuries prevent the applicant from carrying on a normal life.

28Regardless, even if the applicant provided evidence showing the appeal is with merit, I find the conclusions drawn from the analysis of the other factors outweigh the merit of the claim and would still lead me to conclude the time limit for filing an appeal should not be extended.

CONCLUSION AND ORDER

29The applicant is statute-barred from adjudicating entitlement to NEBs and may not proceed with an appeal for that benefit.

30The Tribunal will schedule a case conference as soon as reasonably possible to address the remaining issues in dispute.