S.A. v. Aviva General Insurance, 2020 CanLII 14472

Citation: S.A. vs. Aviva General Insurance, 2020 ONLAT 19-001903/AABS

Tribunal File Number: 19-001903/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.A.

Applicant

and

Aviva General Insurance

Respondent

PRELIMINARY DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Neha Kohli, Paralegal

For the Respondent: Sjawal Bhutta, Counsel

HEARD: In Writing on October 14, 2019

OVERVIEW

1The applicant was injured in an automobile accident on February 13, 2016 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”).

2The respondent denied full funding for certain medical benefits and costs of examinations. In response, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

3In response, the respondent raised a preliminary issue asserting the applicant is statute-barred from bringing his application pursuant to section 56 of the Schedule and subsection 280(2) of the Insurance Act.

PRELIMINARY ISSUE

4The preliminary issue in this hearing is:

1. Should the applicant be statute-barred from applying to the Tribunal pursuant to section 56 of the Schedule and subsection 280(2) of the Insurance Act?

RESULT

5The applicant is not statute-barred from applying to the Tribunal.

BACKGROUND

6The applicant was involved in an accident on February 13, 2016 and applied for and received accident benefits from the respondent. The applicant claimed entitlement to, and funding was partially denied for, a psychological assessment, a chiropractic treatment plan, and a psychological treatment plan. The partial denials occurred on October 20, 2016, September 21, 2016, and January 3, 2017, respectively. The parties agree the “limitation clock” started on these dates, the earliest being September 21, 2016.

7At issue is whether the applicant filed his application with the Tribunal within the two-year limitation period. The respondent submits the application was filed on January 17, 2019 and the applicant submits it was filed on September 18, 2018.

WHEN WAS THE APPLICATION FILED?

8The applicant submits the application was submitted on September 18, 2018 and concludes an administrative error by the Tribunal must have occurred, and, as a result, the application was not processed following receipt. The respondent agrees it was served with the applicant’s application on September 18, 2018 but denies the application was ever filed with the Tribunal until January 17, 2019. The applicant maintains the application was filed earlier and submits January 17, 2019 is when the administrative error was remedied, and the application was processed.

9I find the application was filed on September 18, 2018. My reasons are as follows.

10I agree with the applicant in that an application must satisfy the following five factors in order for it to be considered filed:

1. Complete an AABS Application by an Injured person (“the application”);

2. Send a copy of the completed application to the insurance company;

3. Complete an AABS Certificate of Service, to certify how a copy of the application was submitted to the other party;

4. Submit the completed application and the Certificate of Service to AABS; and

5. Pay the AABS application fee.

11The parties agree factors 1, 2, and 3 have been satisfied. They disagree as to whether factors 4 and 5 were satisfied. I find they were for the following reasons.

12I find the applicant submitted the complete application and certificate of service to the Tribunal, by fax on September 18, 2018. The applicant provided a copy of the fax transmission which confirms the transmission was delivered to the correct fax number and was completed at 2:44 p.m. The respondent does not question the authenticity of the fax transmission, nor do I see any reason to. Filing of documents by fax, provided the transmission is less than 30 pages in length, which was the case for the applicant, is permitted by Rule 6.1(c). Pursuant to Rule 6.2(c), the document is deemed to be received when the person sending it receives a fax confirmation receipt confirming delivery.

13The applicant re-filed the application on January 17, 2019 and should not be prejudiced for it. The evidence shows the applicant properly filed his application via fax on September 18, 2018 but it was not processed by the Tribunal. It appears the Tribunal committed an administrative error. On November 7, 2018 and January 17, 2019, the respondent informed the applicant that it contacted the Tribunal and the Tribunal advised there was no record of an application under the applicant’s name. The applicant re-filed the application, together with the September 18, 2018 fax confirmation receipt, on January 17, 2019. Considering the circumstances, it was reasonable for the applicant to have re-filed his application and this does not override the fact the application was properly filed on September 18, 2018. Likewise, the applicant’s inaction from November 7, 2018 to January 17, 2019 is noted; however, it does not detract from my finding that the initial filing occurred on September 18, 2018.

14The applicant’s fax transmission on September 18, 2018 included a valid credit card payment. However, due to the administrative error, the payment was not processed until after the applicant re-filed the application. By then, the payment information was from the initial filing about four months prior and, it appears, the credit card had expired. This was only brought to the applicant’s attention in early May 2019. The applicant immediately remedied it by filing a new payment information form. Like the re-filing of the application, I find the applicant was not responsible for the delayed payment, but instead, it is as a result of the Tribunal’s administrative error.

LICENCE APPEAL TRIBUNAL ACT

15Considering my finding that the application was properly filed with the Tribunal on September 18, 2018, I need not consider whether an extension should be permitted pursuant to section 7 of the Licence Appeal Tribunal Act. Additionally, the applicant’s motion to extend the time for filing pursuant to section 7, heard prior to this hearing, does not detract from my finding that the application was filed on September 18, 2018. I do not see the applicant’s actions as an admission that the application was only filed on January 17, 2019. Rather, I see this as the applicant attempting to use the tools available to him in order to navigate the Tribunal’s adjudicative process.

CONCLUSION

16The applicant filed his application on September 18, 2018, within the two-year limitation period. He is not barred from disputing entitlement to the benefits claimed.

17As soon as reasonably possible, the Tribunal will schedule a case conference to address the substantive issues in dispute.