V.C. and Unifund Assurance Company
Tribunal File Number: 18-005144/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:
V.C.
Applicant
and
Unifund Assurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Jeffrey Shapiro, Vice-Chair
APPEARANCES:
For the Applicant:
Ashu Ismail, Counsel
For the Respondent:
Anju Sharma, Counsel
Heard in writing on:
July 8, 2019
OVERVIEW
1The applicant was injured in an automobile accident on September 2, 2015. She sought medical benefits and a non-earner benefit (“NEB”) from the respondent under the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the ''Schedule'').
2After medical and psychological assessments, the respondent notified her it was approving the NEB for five weeks but denying the NEB beyond that point. The applicant appealed to this Tribunal to dispute the NEB and other denials. The respondent then asserted that the applicant’s appeal of the NEB denial is time-barred, which issue is now before me.
PRELIMINARY ISSUE
3The preliminary issue: “Is the applicant’s claim for a non-earner benefit statute-barred for failure to comply with section 56 of the Schedule [i.e. by not disputing the denial within the two-year limitation period]?”
RESULT
4I find the applicant’s claim for a NEB is statute-barred under section 56.
ANALYSIS
5Section 56 of the Schedule provides that an application to dispute a denial of a benefit shall be commenced within two years of the insurer’s refusal to pay.
6The respondent submits its denial, faxed on March 23, 2016, was deemed received on March 24, 2016, thus the applicant had until March 24, 2018 to file her appeal with this Tribunal. The applicant, however, did not do so until June 7, 2018. The respondent submits the application is two and half months outside s. 56’s two-year limitation period.
7The respondent notes that even if the denial is deemed received on March 31, 2016 (by regular mail service) or April 6, 2016 (the effective termination date of the NEB), the application is still too late.
8The applicant does not dispute that respondent’s timeline, and in her brief email response of a few paragraphs, appears to concede that the filing is late.
9The applicant explains that the current counsel is unable to ascertain why prior counsel waited to file, and thus simply requests “that the Tribunal exercise its discretion under s. 7 [of the Licence Appeal Tribunal Act, 1999 (“LAT Act”)2] to permit the applicant who always intended to dispute the denial, to proceed with her claim for non-earner benefits.”
10Based on the facts before me, I accept that the application was at least two months beyond the two-year time limitation, and thus time-barred under s. 56 of the Schedule. I now address whether s. 7 provides relief to the applicant.
Does s. 7 of the LAT Act extend the limitation period in this matter?
11No. As a threshold point, I note there is conflicting authority of whether s. 7 applies to matters under the Schedule. Neither party addressed that topic in their submissions.3 Thus, for the sake of argument, I will assume that s. 7 does apply.
12If so, s. 7 provides the Tribunal discretion to extend the time for commencing the appeal if there are reasonable grounds for the extension and granting relief. Case law has established a four-part test to determine if the justice of the case requires the extension. The factors are: (1) the existence of a bona fide intention to appeal within the appeal period; (2) the length of the delay; (3) prejudice to the other party; and (4) the merits of the appeal.4
13The applicant has the onus to establish the extension but need not satisfy all four factors. Rather, the analysis requires a balancing of the conclusions reached when applying the facts of the case to the factors.5
14Beyond counsel’s mentioning s. 7 and claim that the applicant intended to dispute the denial, the applicant provides no evidence, reasons or collective argument in support. At that, her reply is counsel’s statement, not her own. Likewise, the respondent did not reply to the applicant’s response invoking s. 7 or specifically address the factors but did inherently address some factors in its submissions.
15Regarding the first factor, then, aside from counsel’s statement, the record is absent of any intention to appeal, other that the fact that the applicant did ultimately appeal.
16Regarding the second factor (delay), the delay is two and half months. While not extraordinary in length, it is also not a matter of days, nor is there a reason provided for the cause of the delay, or why such a delay is minimal in context.
17The delay also negatively interacts with the third factor (prejudice). I accept the respondent’s claim that if the appeal had been timely filed, it would have at the time – but can not effectively do so now – adjusted the claim differently including other assessments. I find the argument persuasive because the applicant was involved in five accidents from 2014 to 2018, making timely investigation important.
18I find Vice-Chair Flude’s reasoning in a recent reconsideration decision6 regarding the second and third factors, applicable here. In essence, the adjudicator found that without meaningful substance, an applicant’s boiler plate arguments of a brief delay “would always result in an extension, undermining the very purpose of appeal periods.” Thus, for a limitation period to have an effect, an applicant must do more then state conclusory terms that they meet the factors.
19Finally, regarding the fourth factor (the merits), the respondent argues its denial was well supported by IEs, the applicant does not provide countervailing medical information, and that it is doubtful the applicant can establish causation, given that in the applicant’s two prior accidents – one just a year and half prior and the other just 5 ½ months prior – the applicant complained of similar issues and then, soon after, the applicant was involved in two more accidents, further obscuring causation.
20Taking the factors together, the applicant has not met her burden. I decline to extend the limitation period under s. 7.7
ORDER
21The application for the NEB is statute barred in accordance with section 56 of the Schedule and is hereby dismissed. The parties shall contact the Tribunal with mutually agreeable dates for a case conference to address the remaining issues.
Released: April 3, 2020
___________________________
Jeffrey Shapiro
Vice-Chair
Footnotes
- O. Reg. 34/10.
- S.O. 1999, chap. 12, Sched G (“LAT Act”)
- In a reconsideration decision, [S.S.] vs. Certas Home and Auto Insurance Company, 2016 CanLII 153125 (ON LAT) Adjudicator D. Neilson found that s. 7 does not apply to the Schedule.
- A.F. v. North Bleinheim Mutual Insurance Company 2017 CanLII 87546 (ON LAT) (North Blenheim)
- Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (Div. Ct.)
- M. T. G. v. Aviva General Insurance, 2020 CanLII 12740 (ON LAT), para. 15, 17.
- After submissions were filed, the Court of Appeal issued Tomec v. Economical Mutual Ins. Co., 2019 ONCA 882, reversing a case cited by the Respondent. Although Tomec stated that a discoverability doctrine applied in that case, Tomec involved the denial of a benefit prior to eligibility and has no applicability here.