[X.J.W.] v. Certas Home and Auto Insurance Company, 2020 CanLII 19572

Citation: [X.J.W.] v. Certas Home and Auto Insurance Company, 2020 ONLAT 19-000222/AABS

Released Date: February 25, 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:

[X.J.W.]

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Marisa Victor

APPEARANCES:

For the Applicant:

Ivan Yau, Paralegal

For the Respondent:

Candace Mak, Counsel

HEARD: In Writing

July 15, 2019

REASONS FOR DECISION

OVERVIEW

1The applicant, [X.J.W.], was involved in an automobile accident on July 14, 2015, and sought income replacement benefits (“IRBs”), medical and assessment benefits and prescription benefits from the respondent (“Certas”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

2Certas denied several of the applicant’s claims. The applicant sought mediation of some of these denials through FSCO. That mediation never occurred and FSCO closed the file in June 2016. Adjudication of accident benefit claims then moved from FSCO to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). The applicant appealed the denials to this Tribunal in January 2019.

3The respondent takes that position that the application is statute-barred, having been commenced after the two-year limitation period had expired.

ISSUE

4The following issue is in dispute:

i. Is the applicant barred from appealing the respondent’s denial of his claims for benefits as outlined in his application, dated January 1, 2019, because the appeal was filed more than two years after the insurer denied these claims?

RESULT

5The applicant’s appeal is statute-barred.

IS THE APPLICANT’S TRIBUNAL APPLICATION STATUTE-BARRED?

The Law

6Section 56 of the Schedule states that an application before the Tribunal in respect of a benefit shall be commenced 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.

7Section 7 of the Licence Appeal Tribunal Act (“LATA”) allows the Tribunal to extend a limitation period under certain circumstances. There are four required factors the Tribunal must consider in determining whether to use its discretion to extend the limitation period:

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.

8The onus is on the applicant to establish reasonable grounds for an extension under s. 7 of LATA.

Respondent’s Evidence & Submissions

9The respondent submits that the applicant is in contravention of s. 56 of the Schedule as the applicant commenced his application more than two years after the respondent’s refusal to pay the amounts claimed. The respondent submits that its denials were clear and unequivocal.

10The following are the key dates:

a. Income replacement benefits denied November 2, 2015;

b. Prescription benefits for $68.30 denied November 17, 2015;

c. Physiotherapy benefits for $1075.86 denied December 1, 2015;

d. Orthopedic assessment for $2000 denied August 15, 2015;

e. Psychological services for $1990.03 denied August 16, 2016;

f. On March 15, 2016, the applicant began mediation at FSCO regarding all the above issues;

g. On June 15, 2016, FSCO advised the applicant’s counsel and the respondent that the file was closed due to failure to mediate; and

h. The applicant then filed his Tribunal application on January 8, 2019.

11The respondent states that the application was filed more than two years after FSCO closed the file and therefore it should be statute-barred.

12The respondent further states that the applicant seeks payment of $11.12 for prescription medication which was denied on August 20, 2015. The respondent states that that amount was approved on September 3, 2015. Therefore, the issue should be dismissed.

13In its reply, the respondent addresses the exception provided by s. 7 of LATA. The respondent argues that the applicant has not provided evidence regarding the merit of his appeal. The respondent also states it will be prejudiced if the extension is granted as evidence may not be available due to the time delay, witness availability and witness memory.

Applicant’s Evidence & Submissions

14The applicant states that his application is not statute-barred due to his earlier application to FSCO. The applicant appears to blame confusion on the transition in accident benefit appeals from FSCO to this Tribunal which caused the applicant to fail to appeal within the limitation period. The applicant states that he applied for FSCO mediation on April 16, 2016. He states that the FSCO application was closed on June 15, 2016, when Certas failed to confirm a mediation meeting.¹ As a result, the applicant states he was not given the opportunity to mediate or arbitrate the issues in dispute.²

15The applicant also states there was confusion as his original insurer was purchased by Certas in and around the same time.

16The applicant states that the LAT should therefore “re-hear” this case.

17The applicant further states that the Tribunal should use s. 7 of the LATA in order to override the Insurance Act limitation period. The applicant names the four factors that must be considered in any s. 7 LATA analysis. The applicant adds additional information that a psychological report dated January 23, 2017, not at issue in this application, was denied on April 20, 2017 and that when he appealed it to this Tribunal on January 8, 2019, he was within the appeal period. The applicant also states that the psychological report shows that the applicant should not be restricted to the Minor Injury Guideline.³

Analysis

18The applicant failed to appeal within the two-year limitation period and there is no grounds to extend the deadline under s. 7 of LATA.

19The onus is on the respondent to show that the limitation period has expired.

20The applicant filed for a FSCO mediation in regard to the denials of the items listed in paragraphs 10 a) to c) above. The FSCO file was closed on June 15, 2016. The limitation period therefore began to run on that date. I find that there was no confusion over the closure date of the file and that no action was taken to continue the appeal until the within application in January 2019. The limitation period in relation to those three items had expired.

21The applicant also included two additional items, listed in paragraph 10 d) and e) above, in this application. Those items were denied in April 2015 and 2016, respectively. Neither item was included in the FSCO application therefore the limitation period began to run on the date of the denials. No action was taken to appeal these items until January 2019. The limitation period in regard to these two items has also expired.

22In addition, I accept that a portion of the prescription medicine amounts have been resolved. I accept that $11.12 for prescription medication was approved on September 3, 2015 and therefore that portion of the appeal is dismissed.

23The applicant’s statements that there was confusion regarding the transition to the Tribunal from FSCO are unsupported by his evidence. The same can be said of the applicant’s statement that there was confusion over the transition from the previous insurance company to Certas. There was no evidence filed by the applicant to support these statements.

24The applicant requests that I extend the deadline to appeal these denials by relying on s. 7 of LATA. This provision allows for discretionary extensions when fairness and justice require it. The applicant lists the four relevant factors but provides no evidence or submissions as to how he meets those factors. The only submissions he provided were for two issues not relevant to this application. The applicant’s evidence fails to show an intention to appeal within the appeal period. The extension requested is for an additional nine months. The prejudice to the respondent would be significant given the this length of time would affect available evidence to both parties, witness availability and witness memory as to evidence collected three to four years ago. Finally, the applicant has failed to show that his appeal has merit. I therefore decline to extend the deadline.

25I find that the respondent has met its onus to show that the limitation period expired in relation to all the items properly at issue in this appeal. I do not find that s. 7 of LATA should be used to extend the deadline. Therefore, the issues under appeal in this application are statute-barred.

ORDER

26The applicant’s appeal is statute-barred.

Footnotes

1. 1In its reply, the respondent disputes the reason for the closure of the file, but not the closure date. It states instead that FSCO did not have any available mediation dates.
2. 2In its reply, the respondent submits log notes to show that discussions took place between the applicant and the respondent before and after the FSCO application.
3. 3The issue of whether or not the applicant is subject to the Minor Injury Guideline is not before me in this application.