Citation: J.S. vs. Intact Insurance Company, 2020 ONLAT 18-010894/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.C.

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kimberly Parish

APPEARANCES:

For the Applicant:

J.C., Applicant

W.H.C, Applicant’s spouse

For the Respondent:

Jeremy MacDonald, Claims Representative

Tripta Sood, Counsel

Interpreter:

Kok Chew Chang (Cantonese interpreter)

HEARD: In-Person:

September 9, 2019

1J.C. (the “applicant”) was involved in an automobile accident on September 12, 2011 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'')¹. The applicant was denied ongoing entitlement to income replacement benefits (“IRBs”) by the respondent (“insurer”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). The application was received by the Tribunal on November 5, 2018.

2The insurer raised the limitation period under section 56 of the Schedule as a preliminary issue in response to the applicant’s claim for entitlement to IRBs. Two case conferences were held. One was held by telephone conference on May 27, 2019, and an in-person case conference took place on June 20, 2019. The parties were unable to resolve the preliminary issue and agreed to proceed to an in-person hearing on the preliminary issue.

3The applicant’s case was presented by her husband, W.H.C. who stated that there were documents which had been filed with the Tribunal prior to the scheduled case conference. These documents had not been reviewed by me prior to the preliminary issue hearing as they had not been filed for the purpose of the preliminary issue hearing. However, the insurer raised no objections to the applicant referencing any of the documents which were previously filed for the case conference. W.H.C. was advised by me through the assistance of the interpreter that he and his wife could reference any of the documents previously filed for the case conference, but they would need to identify the document first and I would then admit each referenced document as evidence for this preliminary issue hearing. At the hearing, W.H.C. and his wife did not identify or reference any documents previously filed at the case conference. One document they submitted at the hearing was marked as an exhibit which was a letter² signed by W.H.C. and his wife.

4The insurer’s position is that the applicant took no steps to dispute the insurer’s termination of IRBs prior to the two-year limitation period expiring. The applicant’s position is that the insurer has relied on the IE reports of their assessors to maintain their denial of IRBs and the applicant disagrees with the conclusions reached by these IE assessors. The applicant stated she is unable to return to work as a result of the injuries she sustained from the accident.

PRELIMINARY ISSUE

5The order of Adjudicator Johal, dated June 24, 2019, noted the preliminary issue in dispute as follows:

(i) Is the applicant statute-barred from proceeding with her application at the Tribunal for failing to dispute the respondent’s denial within 2 years in accordance with section 56 of the Schedule?

RESULT

6I find that the applicant is statute-barred from proceeding with her claim for income replacement benefits as she failed to commence her application within the limitation period set out in section 56 of the Schedule. I also find an extension of time is not warranted under section 7 of the Licence Appeal Tribunal Act.³

ANALYSIS

Was the insurer’s May 20, 2014 letter terminating IRBs a clear and unequivocal denial?

7I find the May 20, 2014 letter from the insurer which terminated the applicant’s IRBs was a clear and unequivocal denial. I will address my analysis and reasons below.

8The insurer issued a letter to the applicant, dated May 20, 2014 (“termination letter”)⁴ which advised the applicant her income replacement benefit would be stopped effective May 27, 2014 following the respondent’s receipt of its section 44 insurer’s examination (“IE”) reports. The stated medical reason for terminating the applicant’s IRBs was that she does not meet the test of disability, which requires a substantial inability to perform the essential tasks of her employment. The termination letter also included a form titled “Applicant’s Right to Dispute.” This form advised the applicant of the steps she would need to take if she wanted to dispute the insurer’s termination of her IRBs. The form also advised of the two-year time limit to do so. The insurer relies on the Supreme Court of Canada decision in Smith v. Co-operators General Insurance Company⁵ which stipulated that a valid denial from an insurer needs to inform the person of the dispute resolution process, the stages available within that process, and the time limits which govern the process. Further, that this information is communicated to the person in straightforward and clear language.

9In following the reasoning as outlined in Smith, I find the insurer’s termination letter was a clear and unequivocal denial of IRBs. The termination letter advised the applicant that her IRBs were being terminated, the effective date of the termination of her IRBs, and the medical reason for terminating her IRBs. The Applicant’s Right to Dispute form was included with the termination letter which outlined the process in plain language for the applicant should she want to dispute the insurer’s denial of her IRBs.

Applicability of the two-year limitation period

10I find the two-year limitation period applies pursuant to s. 56 of the Schedule and that the applicant has missed the limitation period to file an application refuting the insurer’s denial of IRBs.

11Section 56 of the Schedule requires an insured person to file an application under subsection 280 (2) of the Insurance Act⁶ within two years after the insurer’s refusal to pay the amount claimed.

12In response to receiving the termination letter, the applicant sent a letter dated June 27, 2014⁷ to the insurer. The letter requested copies of the IE reports the insurer relied upon in its denial of IRBs and requested an explanation as to why she was not eligible to continue receiving IRBs. The insurer submitted that copies of the IE reports were provided to the applicant in April 2014 and the termination letter outlined the insurer’s reasons for stopping the payment of IRBs. Further letters were sent by the applicant to the insurer requesting that the IRBs be reinstated and requesting the insurer confirm receipt of updated medical information submitted by the applicant.⁸

13The insurer then advised the applicant by letter dated March 24, 2015 that it had made arrangements for the IE assessors to perform a paper review to assess continued entitlement to the IRB. The insurer submitted that, following the receipt of the IE reports, the insurer sent a letter⁹ to the applicant with the attached IE reports and advised the applicant that their position remains the same as outlined in their termination letter of May 20, 2014.

14W.H.C. stated that from 2014 to 2017, him and his wife continued to send documentation to the insurance company to address the termination of IRBs and that the lawyers W.H.C. and his wife contacted refused to help them. W.H.C. stated they contacted their local Liberal Member of Parliament (“M.P.”) at the time to assist them and that the M.P. advised them to obtain paystubs from her employer at the time of the accident. W.H.C. stated this M.P. assisted them for two years and then stopped. It was further stated by W.H.C. that both him and his wife received assistance from community social workers in corresponding with the insurer, but they received no response from the insurer and the social workers could not assist him and his wife any further. They engaged the assistance of a new Conservative M.P. when the Liberal M.P. changed and were advised by this M.P. that their case was already more than two years old. W.H.C. stated he and his wife knew about the two-year limitation period. It was stated by W.H.C. that the insurer advised the M.P. not to assist his wife and that is why the two-year limitation period was missed. However, no evidence was produced at the hearing to support this allegation.

15The Conservative M.P. assisted them with filing their appeal application with the Tribunal in November 2018. It was stated by W.H.C. that the insurer denied his wife’s facts and evidence and accepted the opinions of their IE doctors which W.H.C. stated are wrong. His wife has been taking pain medication and injections for the past two years. W.H.C. stated that his wife has become a victim as a result of the insurer’s denial of her IRBs.

16I find the documentary evidence confirms the applicant received a clear and unequivocal denial of the IRBs. She was also in receipt of the form notifying her of the process should she want to dispute the termination of her IRBs. The three letters from the applicant to the insurer dated June 27, August 27, and October 20, 2014 confirm the applicant understood that her IRBs were terminated by the insurer. While I accept that the applicant disagrees with the insurer’s termination of her IRBs, the two-year limitation period cannot be ignored. The applicant failed to take the appropriate and necessary steps to properly dispute the termination of her IRBs by commencing an application prior to the limitation period expiring on May 20, 2016, which was two years after the insurer issued the termination letter.

Does section 7 of the LAT Act apply?

17I heard through the oral submissions made by W.H.C. the steps the applicant took to dispute the termination of her IRBs. The Insurer’s written submissions filed in advance of the oral hearing addressed the extension of the limitation period under section 7 of the Licence Appeal Tribunal Act (“LAT Act”). Therefore, I have considered my discretion under section 7 the LAT Act to extend the limitation period but I am not satisfied that there are reasonable grounds to extend the limitation period to allow the late appeal. I find the applicant is still statute-barred from proceeding with her claim for IRBs. My analysis and reasons are below.

18Section 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, it may,

(a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and

(b) give the directions that it considers proper as a result of extending the time.

19The Tribunal’s reconsideration decision, A.F. v. North Blenheim Mutual Insurance Company¹⁰ noted 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.

20I will address each of the four criteria in turn.

Bona Fide Intention to Appeal within the Appeal Period

21I find there is evidence which supports a bona fide intention to appeal but I do not find it was within the appeal period. The evidence which supports the applicant’s bona fide intention to appeal includes: the oral testimony of W.H.C., the correspondence letters sent to the insurer requesting reinstatement of her IRBs, further medical evidence sent to the insurer, and obtaining the assistance of their local M.P. Although I accept this satisfies this criterion that there was a bona fide intention to appeal, I do not accept it was within the two-year limitation period. My finding is based upon the fact that W.H.C. testified that he and his wife were aware of the two-year limitation period. Despite this, neither the applicant, nor W.H.C. provided any explanation as to why they did not take the required steps as outlined in the “Applicant’s Right to Dispute” form included with the insurer’s May 2014 termination letter to properly dispute the termination of her IRBs within the two-year limitation period.

Length of the Delay

22I find there was a significant delay in the applicant filing her application with the Tribunal to dispute the insurer’s denial of IRBs. The application was filed on November 5, 2018. This was nearly 2 ½ years beyond the two-year limitation period, which expired on May 20, 2016. I do not accept that the applicant was a “victim” as stated by W.H.C. I find the letters sent to the insurer following their May 20, 2014 termination letter confirms the applicant understood her IRBs were effectively terminated. However, the applicant failed to take the necessary steps to properly dispute the termination of IRBs within the two-year limitation period.

Prejudice to the Other Party

23I find there would be significant prejudice to the insurer if an extension of time were to be granted to allow the applicant to proceed with her late claim for IRBs at the Tribunal. I find this prejudice outweighs the prejudice to the applicant. The applicant filed her application with the Tribunal almost 2½ years after the two-year limitation period expired. The insurer’s denial of IRBs was based on previous IE assessors’ reports which were completed in 2014 and 2015. The applicant has not been further assessed for IRBs since then. As a result, the medical reports the insurer would be relying on would be outdated due to the significant passage of time since the IRBs were denied on May 20, 2014.

Merits of the Appeal

24I do not find the applicant has demonstrated that the merits of the case justify the Tribunal granting an extension of time to pursue the disputed IRBs at the Tribunal. W.H.C. has stated that for the past two years, his wife continues to take medication and injections for pain. I found that the May 20, 2014 termination letter was a clear and unequivocal denial and was accompanied by the Applicant’s Right to Dispute. The applicant’s three letters (dated June 27, August 27, and October 20, 2014) provides confirmation that the applicant understood her IRBs were terminated. W.H.C. conceded that he and his wife were aware of the two-year limitation period. However, they did not take the necessary steps to appeal within the two-year limitation period despite having been provided with the necessary information from the insurer regarding the steps they needed to take to dispute the termination of IRBs.

25At the hearing, the insurer produced a reconsideration decision from the Tribunal, 18-001196 v. Certas Home and Auto Insurance Company.¹¹ The adjudicator’s finding in that reconsideration decision was that the Tribunal does not have the jurisdiction to extend the two-year limitation period prescribed within s. 56 of the Schedule. The adjudicator noted section 281.1(1) of the Insurance Act was repealed, and not amended to state it was subject to the discretion of the Tribunal in accordance with the LAT Act. The adjudicator’s finding was that the “Legislative intent was to remove the limitation period from s. 7 of the LAT Act, as it is no longer a limitation of time fixed by or under any Act, but rather it is fixed under a regulation.” As I have not granted an extension of time under section 7 of the LAT Act, I need not consider this reconsideration decision relied on by the insurer.

CONCLUSION

26The applicant is statute-barred from proceeding with her claim for income replacement benefits as she failed to commence her application within the limitation period set out in section 56 of the Schedule. I also find an extension of time to allow the late appeal under section 7 of the Licence Appeal Tribunal Act is not warranted.

27The applicant’s claim is dismissed.

Released: January 21, 2020