J.L. v. TD Insurance Meloche Monnex, 2019 CanLII 76982

Licence Appeal Tribunal

Tribunal File Number: 18-004966/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:

J.L. Applicant

and

TD Insurance Meloche Monnex Respondent

DECISION

ADJUDICATOR: Kimberly Parish

For the applicant: Ovidiu Klein, Paralegal For the respondent: Diana M. Oliveira, Counsel

HEARD: in writing on: March 27, 2019

OVERVIEW

1The applicant was injured in an automobile accident (“accident”) on February 1, 2012 and sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”)¹.

2The applicant’s claim for income replacement benefits (“IRBs”) was denied by the respondent on March 5, 2015. On March 17, 2016, the applicant filed an Application for Mediation with the Financial Services Commission of Ontario (“FSCO”) to dispute the respondent’s denial of IRBs. The respondent filed their response to the Application for Mediation with FSCO on April 13, 2016. A FSCO mediation was never scheduled, a Report of Mediator was never issued, nor was correspondence sent from FSCO that the mediation was deemed failed.

3New legal representation was retained by the applicant a year later in the spring of 2017. The applicant filed an Application by an Injured Person for Auto Insurance Dispute Resolution (“application”) with the Licence Appeal Tribunal (“Tribunal”) a year later on May 31, 2018. A case conference was held on September 11, 2018 and a written preliminary issue hearing was scheduled.

PRELIMINARY ISSUE

4The preliminary issue to be determined in this hearing as noted within the Order dated October 5, 2018 is:

(i) Is the applicant statute barred from pursuing his claim for income replacement benefits to the License Appeal Tribunal due to the limitation period requirements within section 56 of the Schedule?

RESULT

5I find the applicant is statute barred from pursuing his claim for income replacement benefits to the License Appeal Tribunal due to the limitation period requirements within section 56 of the Schedule.

ANALYSIS

The Applicant is Statute Barred from Proceeding with IRB Claim

6The Schedule requires that a proceeding to dispute accident benefits determination and entitlement must be commenced within two years after the insurer’s refusal to pay the benefit claimed. Under the prior FSCO regime, if one applied for mediation at FSCO within that two year period, one also received a 90 day extension of the limitation period after the issuance of a failed Report of Mediator to apply to FSCO’s arbitration, or file a claim at Court.

7On April 1, 2016 a new process at the Tribunal replaced the previous regime. As of that date, parties who had completed mediation at FSCO could no longer apply for a FSCO arbitration. Their only option was to apply for dispute resolution at the Tribunal, which, according to the Schedule, must be done within two years of the insurer’s refusal to pay the benefit claimed.

8It is the position of the respondent that its denial of IRBs on March 5, 2017 is clear and unequivocal and met the criteria as established within Bernadette Smith and Co-operators General Insurance Company.² In its submissions, the applicant concedes the respondent’s denial letter of March 5, 2015 is clear and unequivocal. Therefore, there is no dispute regarding this requirement. The adjuster’s log notes produced by the respondent noted mediation was unable to be scheduled with FSCO as their calendar was full.³ The respondent submitted they left several voicemail messages with the applicant’s prior legal counsel indicating an application with the Tribunal should be filed.⁴

9The applicant’s position is that he followed the appropriate dispute resolution process at the time when he applied to mediate IRBs within two years of the date of the respondent’s denial and relied on the published communication on FSCO’s website which noted that FSCO would continue to be responsible for all files remaining open as of March 31, 2016. It was further submitted by the applicant that no notice or request to schedule mediation was sent from FSCO and the contents in the FSCO file only contained: the Application for Mediation and the Response to the Application for Mediation.⁵ Further, the affidavit of the applicant’s prior counsel⁶ noted that on or about March 16, 2016, FSCO assigned a mediation number following receipt of the Application for Mediation and sent a Confirmation of Notification of Pending Assignment to Mediator to the respondent only. The affidavit further noted that the applicant’s prior legal counsel did not recall receiving any voicemail messages from the respondent from May 2016 to the winter of 2017. The applicant argues the Report of Mediator was never issued, or produced to the parties by FSCO, thereby continuing the 90 day extension of the limitation period pursuant to s. 56(2) of the Schedule.

10In the alternative, the applicant has requested an extension of the limitation period pursuant to s. 7 of the Licence Appeal Tribunal Act (“LAT Act”). The applicant relied on a prior case from the Tribunal where an application was filed with the Tribunal 17 days after the expiry of the two-year limitation period. The Tribunal granted a 90 extension to the limitation period from the date in which the FSCO mediation was cancelled as the applicant in that case could no longer apply for arbitration at FSCO beyond March 31, 2016 as FSCO no longer had jurisdiction to accept any new applications.⁷ Additional jurisprudence was provided by the applicant which addressed cases where prior applicant’s had filed for mediation with FSCO within two years of the denial of their claims and were entitled to a 90 day post-mediator’s report extension. I find the cases were not helpful and the facts in this case are distinguishable as in this case before me, a mediation was never scheduled by FSCO, nor was a Report of Mediator issued by FSCO. The respondent submitted the applicant’s request for an extension of the limitation period is improper as this was not raised at the case conference. The respondent submitted that the applicant has not provided a reasonable explanation as to why they delayed submitting their application to the Tribunal for IRBs and relies on Ziad Manuel and Registrar, Motor Vehicle Dealers Act, 2002.⁸ In the case before me, a FSCO mediation was never scheduled, and there has been no issuance of a Report of Mediator by FSCO, therefore a date does not exist in which the 90-day post-mediator’s report extension can be calculated from. I have subsequently considered the application of s. 7 of the LAT Act to this case.

The Applicant’s claim is not extended in accordance with Section 7 of the Licence Appeal Tribunal (LAT) Act

11Section 7 of the LAT Act states:

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. Further, the Tribunal’s reconsideration decision⁹ noted the Tribunal is required to consider whether an extension of time should be granted under s. 7 of the LAT Act. Therefore, I will be considering if an extension of time should be granted in this case.

12There are four criteria which the Tribunal must consider when determining if an extension of time is to be granted:

(i) The existence of a bona fide intention to appeal within the appeal period;

(ii) The length of the delay;

(iii) Prejudice to the other party; and,

(iv) The merits of the appeal.

13I will address the four criteria which the Tribunal must consider when determining if an extension of time is to be granted under s. 7 of the LAT Act.

Bona Fide Intention to Appeal

14I do not find there was a bona fide intention to appeal as there have been significant lapses in time which have occurred since the applicant filed their Application for Mediation on March 17, 2016 with FSCO to dispute IRBs. The applicant retained new legal counsel one year later in the spring of 2017. The applicant filed an application with the Tribunal to dispute IRBs one year later on May 31, 2018. As a result of the amount of time which has lapsed, I do find the existence of a bona fide intention to appeal.

15The applicant submitted there was always a bona fide intention to appeal as the applicant’s prior legal counsel confirmed through his affidavit that he always intended to dispute IRBs. In the affidavit from the applicant’s prior legal counsel, it noted an application to the Tribunal was not filed as an Application for Mediation with FSCO was filed prior to April 1, 2016 but a Report of Mediator was never issued, no correspondence was received from FSCO that the mediation was failed. The applicant submitted that FSCO was likely overwhelmed with their processing difficulties at the time the applicant submitted his Application for Mediation to FSCO and this is the reason prior legal counsel did not file an application with the Tribunal within the prescribed 90 day period. The respondent rejects the applicant’s submission as there has been no explanation produced by the applicant as to why he never followed up with FSCO regarding a mediation date. Further the respondent relies on jurisprudence that the applicant appealing a denial of a benefit through FSCO does not support a bona fide intention to appeal.¹⁰ The respondent lastly submitted that the applicant’s present legal counsel was retained in the spring of 2017 and they submitted an application to the Tribunal for one medical benefit on August 22, 2017. A separate application for IRBs was submitted to the Tribunal on May 31, 2018.

Length of the Delay

16I find the length of the delay is significant and does not warrant an extension of time under s. 7 of the LAT Act. The applicant filed an Application for Mediation with FSCO on March 17, 2016. The applicant has submitted they never received a Report of Mediator, or any correspondence from FSCO. The applicant filed an application with the Tribunal on May 31, 2018, 26 months later. The explanation provided by the applicant that they were simply awaiting a response from FSCO is not a reasonable explanation to explain the length of the delay, especially when the issue in dispute involves IRBs. The applicant submitted that the respondent has its requisite reports disputing IRBs and did not request further productions when they filed their Response to the Application for Mediation with FSCO on April 13, 2016. The respondent submitted that if a hearing were to proceed, it would be more than four years since it denied the applicant’s claim for IRBs. The applicant submits the delay is not long considering the history of the dispute with the respondent. I disagree. I find 17-006956 Applicant and Guarantee of North America¹¹ to be persuasive as the length of delay in the case before me is also a major factor in determining the issue.

Prejudice to the Other Party

17I find as a result of the applicant not proceeding with their application in a timely manner, this causes significant prejudice to the respondent and does not warrant granting an extension of time under s. 7 of the LAT Act. I agree with what the respondent has submitted. The respondent will be forced to rely upon old evidence, some of which may no longer be producible for a hearing. Further, it is already more than two years past the two-year limitation period which would mean that if a hearing were to be scheduled, it would be more than four years since the IRBs were denied. It is the applicant’s position that the respondent’s position is the same as it was two years ago when it obtained its reports to dispute IRBs. The applicant lastly submitted there is no prejudice to the respondent that cannot be compensated with costs. The respondent raised an argument regarding institutional prejudice but it is not clear if they meant bias and a fulsome argument was not provided, nor any case law pertaining to bias.

Merits of the Appeal

18The applicant has included medical documentation and other evidence in support of his entitlement to the IRB claim. The respondent has included their insurer examination reports on which they rely in support of their denial for IRBs. For the purposes of the analysis under s. 7 of the LAT Act, I find that the applicant satisfies this criterion in that there are merits to his IRB appeal. However, this does not change my ultimate finding, as discussed above, with respect to the other factors.

CONCLUSION

19Upon considering the criteria under s. 7 of the LAT Act, I find the applicant has not met three out of the four criteria granting an extension of time. Therefore the applicant is still statute-barred from proceeding with his claim for income replacement benefits as he failed to commence his application within two years after the respondent’s refusal to pay the amount claimed and an extension is not warranted. This claim is dismissed.

Footnotes

1. 1O. Reg 34/10
2. 2Bernadette Smith and Co-operators general Insurance Company, 2002 SCC 30, at para14
3. 3Entry dated April 12, 2016 contained within adjuster’s log notes, tab I, respondent’s written submissions
4. 4Dates respondent left voicemail messages with applicant’s prior legal counsel: May 25, July 11, August 23, October 7, November 21, 2016, January 5, 2017, and February 20, 2017
5. 5Affidavit of MR, sworn on February 24, 2019. Enclosed with Applicant’s written submissions, tab 1
6. 6Ibid
7. 716-000588 P.C. and State Farm Insurance Company, 2016, 106918 (ONLAT)
8. 8Ziad Manuel and Registrar, Motor Vehicle Dealers Act, 2002, 2012 CarswellOnt 4184, para 28
9. 916-002336 A.F. and North Blenheim Insurance Company, 2017, 87456 (ONLAT), December 13, 2017
10. 1017-006956 Applicant and Guarantee of North America, 2018 CarswellOnt 19770, at para 25
11. 11Ibid