[H. A. B.] v. Guarantee Insurance, 2019 CanLII 94033

Citation: [H. A. B.] vs. Guarantee Insurance, 2019 ONLAT 18-003032/AABS

Date: August 19, 2019

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:

[H. A. B.]

Appellant(s)

and

Guarantee Insurance

Respondent

DECISION AND ORDER

VICE CHAIR: Susan Mather

Appearances:

For the Appellant: Hyla Tova Korn, Counsel

For the Respondent: Shawn McDonald, Counsel

Heard: In Writing Hearing: April 23, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW

1The appellant was involved in an automobile accident on February 2, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The appellant was denied a weekly income replacement benefit (“IRB”) by the respondent (“Guarantee”) on October 21, 2015 and denied attendant care benefits (“ACBs”) on April 11, 2016.

2On March 28, 2018 the appellant appealed to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) claiming IRBs, ACBs and various medical benefits. Guarantee objects to the appellant’s appeal for IRBs being heard by the Tribunal because it was filed beyond the two-year limitation period prescribed in the Schedule.¹

3Guarantee also objects to the appellant’s appeal for ACBs for the period January 8, 2016 to February 8, 2016 being heard by the Tribunal because he did not provide Guarantee with an Attendant Care Needs Assessment Report (Form I) until February 8, 2016.

4At a second case conference held on October 12, 2018 a preliminary issues hearing was ordered for March 19, 2019 on consent of the parties. The preliminary issues hearing was subsequently adjourned to April 23, 2019.

5For the reasons provided below, I find that the appellant’s claim for IRBs is barred by the Schedule and I decline to exercise my discretion to extend the time for the appellant to file his appeal. I also find that the appellant is not barred from having his claim for ACBs heard by the Tribunal for the period January 8, 2016 to February 8, 2016.

PRELIMINARY HEARING ISSUES

6The issues in dispute at this hearing are as follows:

1. Is the appellant’s claim for Income Replacement Benefits statute barred pursuant to s. 56 of the Schedule?

2. Is the appellant’s claim for Attendant Care Benefits for the period January 8, 2016 to February 8, 2016 statute barred pursuant to s. 42(5) of the Schedule?

Is the appellant’s claim for Income Replacement Benefits statute barred pursuant to s. 56 of the Schedule?

7The Schedule requires an insured person to commence an appeal to the Tribunal to dispute the insurer’s refusal to pay a benefit to be made within two years after the insurer’s refusal to pay the amount claimed.²

8S. 7 of the Licence Appeal Tribunal Act, 1999³ gives the Tribunal discretion to permit an insured to commence an appeal outside of the limitation period set out in the Schedule if the Tribunal is satisfied that there are reasonable grounds for applying for the extension of time and for granting relief.

9The appellant does not dispute that the limitation period for the IRB began on October 21, 2015 when he received a clear and unequivocal denial of IRBs ⁴ and ended on October 21, 2017 two years after he received the denial. He asks me to exercise my discretion and extend the time for the him to file his appeal.

10Guarantee argues an extension of time is not appropriate in this case.

11The parties agree that case law has established that the following factors should be considered in deciding whether to grant an extension of the time:⁵

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.

12The parties also agree that no one factor is determinative in deciding whether to grant an extension of time to appeal and that all factors must be weighed.

a. Did the appellant have a bona fide intention to appeal within the appeal period?

13The Schedule required the appellant to file his appeal to dispute Guarantee’s denial of IRBs by October 21, 2017. For the reasons provided below I am satisfied that the appellant had a bona fide intention to appeal Guarantee’s denial of the appellant’s claim for IRBs within the appeal period.

14The main reason for my finding is that appellant initially filed an appeal for mediation of his entitlement to IRBs s with the Financial Services Commission of Ontario (“FSCO”) on March 31, 2016. This action taken well before the limitation period expired clearly demonstrates he had bona fide intention to pursue the denial of his IRBs within the time period.

15A FSCO mediation was scheduled to take place on June 1, 2016 but did not proceed because the parties were advised that the file was closed. Despite counsel for both parties requesting a new date for the mediation no date was ever set by FSCO.⁶

16Guarantee argues that the appellant did not display a bona fide intention to dispute the IRB denial because he did not follow up with respect to the status of the FSCO appeal or respond to the numerous requests for employment documentation that he received between October 2016 and March 2017.

17On September16, 2016 Michael Gerhard, a lawyer with Suboch Law advised Guarantee that he would “look into” whether the appeal was at FSCO or LAT. There is no evidence that Mr. Gerhard took any steps to determine the status of the appellants appeal. On March 6, 2017 Guarantee was informed by Suboch Law that Mr. Gerhard was no longer with the firm and that Adriana Vaduva would be looking after the file.

18Upon taking over the file Ms. Vaduva followed up on communications with Guarantee and Matson, Driscoll & Damico Ltd. (“MDD”), the firm that Guarantee hired to calculate the IRB benefit. The fact that Ms. Vaduva followed up on the communications with Guarantee and MDD when she took over the file and that the appellant attended at an examination under oath by Guarantee on September 15, 2017 satisfies me that the appellant continued to have a bona fide intention to appeal within the appeal period.

b. Length of Delay

19The appellant filed his appeal with the Tribunal almost 6 months after the October 21, 2017 deadline. Guarantee argues that this was a lengthy delay.

20The appellant disagrees. He argues that Guarantee was well aware that he intended to dispute Guarantee’s denial of an IRB benefit as early as March 30, 2016 when the appellant applied for mediation at FSCO. The appellant points out that he and his counsel attended at the examination under oath in September 2017 again demonstrating an intention to proceed with the claim.

21I agree with Guarantee that this was a lengthy delay because Ms. Varduva took carriage of the file in March 2017 at least six months before the deadline for the filing an appeal of the IRBs decision and yet did not file the appeal to the Tribunal until over a year after she assumed carriage of the file.

22No explanation had been offered by the appellant as to why the deadline was missed except that there was a change of counsel on his file.

c. Prejudice to Guarantee

23The parties agree that missing a limitation period gives rise to a presumption of prejudice the strength of which increases with time. The appellant bears the burden of rebutting the presumption and when the presumption is displaced the respondent must establish actual prejudice.

24The appellant argues the presumption of prejudice is rebutted in this case because the Insurer’s Examination (IE) report of Dr. Gelman is still available to Guarantee. He adds that Guarantee had the opportunity to examine him under oath on September 5, 2017 and obtained information with respect to his work history, injuries and limitations. The appellant argues that Guarantee has all of documents it requires to proceed to a hearing and is able to defend the appeal on its merits.

25I am satisfied that the appellant has rebutted the presumption of prejudice because I am satisfied that Guarantee had the opportunity to obtain an IE report and income information from the appellant. The fact that not all the income information sought by Guarantee was produced by the appellant is more damaging to the appellant’s case than Guarantee’s. The appellant will have a difficult time proving his claim for IRBs without evidence to confirm his income from self-employment immediately prior to the accident and evidence to confirm the date he returned to work and the income he earned following the accident.

26For the reasons provided above I am not satisfied that Guarantee has established that there is any real prejudice to it if the appeal is allowed to proceed.

d. The Merits of the Appeal

27Guarantee argues that because the appellant and his counsel have been unable to provide Guarantee or its consultant, MDD, with the documents and information required to establish the quantum of IRBs that may be payable, the appeal is without merits and should not be allowed to proceed. Guarantee argues that it would be a waste of the Tribunal’s time to hear the appeal.

28The appellant argues that the appellant’s appeal of his entitlement to IRB benefits has merits because he was unable to return to work due to his physical and psychological impairment he sustained in the accident. He further argues that the Employer’s Confirmation Forms⁷ are evidence of his time off work and that the fact that he did not return to work after the accident is sufficient for there to be a chance that his appeal will be successful.

29After reviewing the documentation submitted pertaining to the IRB claim for this preliminary issue hearing, I understand Guarantee’s concerns that the appellant may have difficulty establishing the quantum of any IRB he is entitled to.

30During his September 5, 2017 examination under oath the appellant testified that he had started working at [ ] in September 2016 and had been working at [ ] for 5 or 6 months.

1The calculation of an income replacement benefit requires the insured’s weekly gross employment and weekly income from self-employment income.⁸

31The transcript from the appellant’s examination under oath (“EUO”) leads me to believe that the appellant is unable to provide evidence of income from the three companies he claimed to be self-employed with prior to the accident.

32The Employer Confirmation Forms do not provide addresses for the employers the appellant claims he worked for in the months before the accident.⁹ The appellant testified during his EUO that he had no contact information for anyone at [ ] and that he could not remember anything. He stated that whatever information he had he had given to his lawyers.

33On October 4, 2017 following the EUO Guarantee formally notified the appellant that it required employment records from [ ], [ ], [ , [ ], [ ] and [ ] in order to assist Guarantee in determining his entitlement to benefits.¹⁰

34There is no evidence that any further effort was made by the applicant to provide Guarantee with the information it sought in order to determine the applicant’s entitlement to IRBs.

35More than four years have gone by since the accident and I am not persuaded by the appellant’s submissions that he will be able to produce evidence at the hearing to substantiate his IRB claim. In his submissions he does not suggest that he has any new evidence that he did not provide to Guarantee in the first three years after the accident. While he is not required to prove his IRB claim at this preliminary issue hearing, I am required to consider the merits of his claim in deciding if there are reasonable grounds to extend the limitation period.

36The appellant has not provided me with any evidence to satisfy me that he will be able to establish the quantum of his IRB claim at the hearing.

My Decision

37Having considered the factors set out above I am not satisfied that there are reasonable grounds for granting an extension of time and allowing the appellant’s claim for IRBs to be heard by the Tribunal.

38While the appellant suggests in his submissions that the delay in filing his appeal with the Tribunal was the fault of his counsel he not provided any evidence of the steps he took along the way to ensure that his counsel received the documentation requested by Guarantee and MDD to calculate what IRBs may be owing.

39If the appellant was unable to provide sufficient evidence of his income over the three years following his accident it seems unlikely that he will be able to do so at a hearing.

40While the appellant argues that he should be given the opportunity to prove his IRB claim, he has not pointed to the documentation he has produced to Guarantee that he relies on to prove the quantum of his IRBs. He does not dispute Guarantee’s claim that none of his counsel have provided Guarantee with the revenue summaries from his self-employment with [ ], [ ] and [ ] or his employment with [ ] and [ ].

41I am not convinced that he will now be able to provide further evidence to confirm the information he filled in on the Employer Confirmation Forms. The transcript from the EUO confirms that the appellant has no knowledge of the contact information for the companies he identified on his Employer Confirmation Forms.

42For the reasons provide above I am not satisfied that there are reasonable grounds for extending the time period for the appellant to file his appeal with the Tribunal and I find his claim for IRBs to be statute barred.

Is the appellant’s claim for Attendant Care Benefits for the period January 8, 2016 to February 8, 2016 statute barred pursuant to s. 42(5) of the Schedule?

43The appellant is seeking an attendant care benefit for a period commencing on January 8, 2016. The Schedule requires an appeal for attendant care benefits to be in the form of and contain the information required to be provided in an Assessment of Attendant Care Needs form that is referred to as a Form I.¹¹

44The Schedule provides that an insurer may but does not have to pay an expense incurred before the Form I is submitted.

45Guarantee argues that the appellant’s claim for an attendant care benefit for the period January 8, 2016 to February 8, 2016 is statute barred because the appellant did not submit a Form 1 to Guarantee until February 8, 2018.

46The appellant argues that the FSCO case of Stephanie Kelly and the Guarantee Company of North America (“Kelly”) establishes that an insured is entitled to the costs of attendant care services recommended in a Form I that is submitted after the attendant care expense have been incurred.¹²

47In Kelly the appellant was catastrophically impaired and her needs following the accident were so great that she required supplementary care to the care she received in the Acquired Brain Injury Programme at Parkwood Hospital in London. Supplementary care was provided by Parkwood Hospital and her parents.

48The FSCO arbitrator found that Ms. Kelly was entitled to the attendant care expenses she incurred prior to providing the Form I to the insurer. The arbitrator pointed out the great injustices that would occur in circumstances where an insured is incapable of arranging for a Form I to be completed before the attendant care expense is incurred.

49Guarantee argues that the Kelly case is distinguishable from the case before me. Guarantee argues that the insured’s injuries in Kelly were much more severe than the appellant’s and in Kelly the attendant care expenses were claimed for a period beginning almost immediately after the accident while in this case the appellant’s claim for an attendant care benefit is for a period almost a year after the accident.

50While I am not bound by the decision of a FSCO adjudicator I agree with it. I interpret s. 42(5) to mean that while an insurer does not have to pay an attendant care benefit expense until it is in receipt of a Form I an insurer may pay an attendant care expense without a Form I if it chooses to do so.

51I am not persuaded by Guarantee that s. 42(5) prevents an insured from submitting a retroactive Form I. Guarantee has not submitted any case law to support its position.

52Attendant care benefits shall pay for all reasonable and necessary expenses that are incurred by or on behalf of the insured.¹³

53For the reasons provided above I find that the appellant is entitled to proceed to hearing for a determination of whether the attendant care benefit he is seeking for the period January 8, 2016 to February 8, 2016 reasonable and necessary and has been incurred by him.

ORDER

54For the reasons provided above, I Order:

1. The appellant is barred by s. 56 of the Schedule from proceeding with his claim for IRBs.

2. The appellant is not barred by s. 42(5) of the Schedule from proceeding to a hearing on the merits of his ACB claim for the period January 8, 2016 to February 8, 2016.

3. The appeal is adjourned to a Case Conference to be scheduled by the Tribunal on a date no sooner than 31 days after the day this decision is released. The purpose of the case conference is to set a date(s) for a hearing on the merits of the appellant’s remaining benefit claims and set the terms of the hearing.

Released: August 19, 2019

___________________________

Susan Mather

Vice Chair

Footnotes

1. 1S. 56(1) O.reg. 34/10
2. 2S. 56(1), O. reg. 34/10
3. 3S.O. 1999, CHAPTER 12 Schedule G
4. 4Paragraph 37, appellant’s submissions
5. 5Manuel v. Registrar, 2012 ONSC 1492 (Div. Court)
6. 6The appellant filed his appeal for mediation with FSCO only one day before FSCO ceased to have jurisdiction for disputes arising from the Schedule of benefits. The Licence Appeal Tribunal assumed jurisdiction for disputes arising from the Schedule benefits on April 1, 2016.
7. 7Tab 6 appellant’s documents
8. 8S. 7(2) O. reg/ 34/10
9. 9[ ], [ ], and [ ]
10. 10Tab 20 appellant’s documents
11. 11S. 42(1)(a) O.Reg. 34/10
12. 122014 CarswellOnt 11374, [2014] O.F.S.C.D. No. 155
13. 13S. 19(1)(a) O. Reg. 34/10