Citation: Williams vs. Aviva General Insurance Company, 2020 ONLAT 19-007941/AABS

Released Date: 12/23/2020

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:

Toni-Ann Williams

Applicant

and

Aviva General Insurance Company

Respondent

AMENDED DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant:

Volha Vinahradava, Paralegal

For the Respondent:

Marcin J. Panasewicz, Counsel

Heard by Way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1Toni-Ann Williams (“applicant”) was involved in an automobile accident on August 6, 2016 (“accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule¹ - Effective September 1, 2010 (the ''Schedule'').

2Aviva General Insurance Company (“respondent”) stopped paying income replacement benefit (“IRB”) to the applicant when it determined her ineligible following an insurer’s examination (“IE”). The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).

3The respondent raised the preliminary issue set out below.

4The Tribunal’s amended case conference Order made January 13, 2020 provides that if the applicant is successful on the preliminary issue, a case conference resumption is to be scheduled to decide the form of hearing and set a hearing date.

PRELIMINARY ISSUE

5The preliminary issue to be decided is:

i. Whether the claim for IRB is time barred as it was commenced more than 2 years after the denial of the claim pursuant to s. 56 of the Schedule?

RESULT

6The applicant’s application for IRB is statute-barred and dismissed.

LAW

7Section 56 of the Schedule provides that an application before the Tribunal in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed. The onus is on the respondent to show that the limitation period has expired.

8Section 7 of the Licence Appeal Tribunal Act, 1999² (“LAT Act”) allows the Tribunal to extend a limitation period under certain circumstances. In considering whether to exercise its discretion to extend the limitation period the Tribunal must consider the following four factors³:

a. A bona fide intention to appeal within the limitation period;

b. The length of delay;

c. Prejudice to the other party; and

d. Merits of the appeal.

9The onus is on the applicant to establish reasonable grounds for an extension under s. 7 of LAT Act.

Respondent’s position

10The respondent submits that the application contravenes s. 56 of the Schedule because it was commenced more than two years after the respondent’s refusal to continue to pay IRB. The respondent submits that it wrote to the applicant and her legal representative on June 15, 2017 advising that she was no longer entitled to IRB effective June 23, 2017, that its refusal was straightforward, clear and unequivocal. The respondent further submits that its refusal letter of June 15, 2017 enclosed the IE report of its assessors, advised the applicant of her right to dispute the respondent’s decision by filing an application to the Tribunal and warned of the two year time limit to do so.

Applicant’s position

11The applicant did not file any written submissions or evidence for the written hearing. The applicant had until March 20, 2020 to do so under the Tribunal’s case conference Order. The Order was made on consent of both parties.

ANALYSIS

Is the Applicant’s Application for IRB Statute-Barred?

12For the following reasons, I find that the respondent has met its burden of proof to establish that the limitation period expired before the applicant’s Tribunal application for IRB was filed.

13I find that the respondent’s June 15, 2017 correspondence contains the respondent’s written refusal of IRB. This refusal was clear and unequivocal. Reasons were given for the refusal and a description of the dispute resolution process was provided. The reasons for the denial of IRB were set out clearly, the IE report on which the respondent based it’s decision on IRB was enclosed and the letter enclosed a document entitled “Applicant’s Rights to Dispute” advising the applicant that she had two years from the refusal to pay or “reduction of benefit” to file an application with the Tribunal. It also included a warning that “if you do not apply within two years, you will lose the right to dispute the determination”. The applicant’s legal representative was copied with this correspondence.

14The June 15, 2017 letter does not show that it was faxed. I was not provided with any evidence by the respondent that it was faxed. Accordingly, under s. 64(18) of the Schedule, I find that the June 15, 2017 letter was mailed and is deemed to have been received the applicant and her legal representative on the fifth business day after it was mailed which is June 22, 2017 after allowing for two non-business days. Therefore, the IRB time limitation had expired June 24, 2019, the next applicable business day. When the applicant filed her Tribunal application for IRB on July 3, 2019 it was statute barred.

15The applicant made no argument or filed any evidence to the contrary.

16I have found as a fact that the respondent denied IRB on June 15, 2017 and the time limitation for an application to the Tribunal expired June 24, 2019. Section 56 of the Schedule is precise and unambiguous and provides that an application under s. 280(2) of the Act shall be commenced within two years after the insurer’s refusal to pay the amount claimed. This language is mandatory.

Discretion Under LAT Act

17Although no submissions or evidence was filed by the applicant for the written hearing, I have considered whether I should exercise my discretion and grant an extension under s. 7 of the LAT Act.

18I am not satisfied that there are reasonable grounds for granting relief to the applicant and I decline to exercise my discretion to extend the applicant’s deadline to bring an application to the Tribunal for IRB for the following reasons.

19There is no evidence before me that shows the applicant’s bona fide or good faith intention to appeal within the appeal period.

20The only evidence before me as to when the applicant filed her Tribunal application is the Tribunal’s correspondence which notified the respondent that it has been named as respondent in an application filed with the Tribunal on July 3, 2019, some nine days after the respondent’s June 15, 2017 denial letter regarding IRB was deemed to have been received by the applicant and clearly after the two year limitation period had ended June 24, 2019. This delay is excessive considering that the 104 week post-accident time period is critical for IRB.

21The applicant has failed to establish that her application for IRB has merit. The applicant filed no evidence. As a result, based on the lack of evidence before me, the applicant is unlikely to meet the test for IRB.

ORDER

22The applicant’s application with respect to IRB is statute-barred and is dismissed.

Footnotes

1. 1O.Reg. 34/10
2. 2S.O. 1999, c. 12, Sched. G.
3. 3Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (Div. Ct.).