Gui Lan Yang v. TD General Insurance Company, 2020 CanLII 34494

Citation: Gui Lan Yang vs. TD General Insurance Company, 2020 ONLAT 19-005396/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:

Gui Lan Yang Applicant

and

TD General Insurance Company Respondent

DECISION

ADJUDICATOR: Kimberly Parish

APPEARANCES:

Legal Representative for the Applicant: Ivan Yau

Counsel for the Respondent: Harley Kruger

Heard by way of written submissions

OVERVIEW

1The applicant, Ms. Gui Lan Yang (“Ms. Yang”) was injured in an automobile accident (the “accident”) on November 23, 2015 and sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent, TD General Insurance Company (“TD”) paid her accident benefits as a result of the injuries she sustained from the accident.

2TD issued correspondence to Ms. Yang dated August 12, 2016 which effectively denied payment of income replacement benefits (“IRBs”) and noted a stoppage date for the benefit of September 2, 2016. On May 1, 2019, Ms. Yang applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

3TD raised a preliminary issue as Ms. Yang commenced her application before the Tribunal beyond the two-year limitation period. TD requests an order barring her from proceeding with her application for IRBs pursuant to s. 56 of the Schedule. Ms. Yang refutes TD’s position and has requested an extension of time for the filing of her Tribunal application and relies on s. 7 of the LAT Act.

4The order issued by Adjudicator Wallace, dated October 25, 2019 noted that the parties agreed that no affidavits would be submitted for the written hearing. The respondent included an affidavit within its initial written submissions. The affidavit referenced the documentary evidence which forms part of the hearing record which I already have before me. Therefore, the affidavit evidence does not influence my decision.

ISSUE

5The disputed claim in this preliminary issue hearing is:

(i) Is the applicant barred from proceeding with her claim for income replacement benefits for failing to commence the application before the Tribunal within two years after the respondent’s refusal to pay the amount claimed?

RESULT

6Based on the evidence before me, and on a balance of probabilities, I find that the applicant is statute barred from pursuing with her claim for income replacement benefits before the Tribunal due to the limitation period requirements within section 56 of the Schedule.

ANALYSIS

Was the respondent’s termination letter of August 12, 2016 a clear and unequivocal denial?

7TD received a disability certificate (“OCF-3”) from Ms. Yang dated December 23, 2015 noting she suffered a substantial inability to perform the essential tasks of her employment for a period of 5-8 weeks. She underwent two insurer examination (“IE”) assessments to assist TD with determining entitlement to IRBs. A psychological IE report dated May 18, 2016 was issued by Dr. R. Lewis and a physiatry IE report dated July 25, 2016 was issued by Dr. R. Zabieliauskas. Both assessors concluded she did not suffer a substantial inability to return to her pre-accident job duties.

8I find TD’s letter dated August 12, 2016 (“termination letter”) which terminated IRBs effective September 2, 2016 was a clear and unequivocal denial of IRBs. The termination letter advised Ms. Yang of the following regarding the termination of IRBs: her IRBs were being terminated, the effective date of the termination of her IRBs, and the medical reasons for the termination of IRBs. The stated medical reasons for terminating her IRBs were that she did not suffer from a physical impairment or disability which would prevent her from safely resuming her pre-accident employment duties, and from a psychological perspective, she did not suffer a substantial inability to return to her pre-accident employment activities. The termination letter referenced and noted the enclosure of both IE reports issued by Dr. Lewis and Dr. Zabieliauskas. Further, the termination letter included a form titled “Your Right to Dispute the Insurance Company’s Determination of Your Claim for Statutory Accident Benefits.” The form advised Ms. Yang of the steps she would need to take if she wanted to dispute the insurer’s termination of IRBs. The form also advised of the two-year time limit to do so.

Application to FSCO for Dispute Resolution

9On April 1, 2016, a new process at the Tribunal replaced the previous regime at the Financial Services Commission of Ontario (“FSCO”). Since that date, the only option for the parties when statutory accident benefits had been denied by an insurer, was for the applicant to apply for dispute resolution at the Tribunal, which, according to the Schedule, must be done within two years of the insurer’s refusal to pay the benefit claimed.

10I do not accept the applicant’s submission that she is within the two-year limitation period because she applied to FSCO sometime in April 2016 to dispute her entitlement to IRBs. I base this finding on the evidence that IRBs were not denied until September 2, 2016. Ms. Yang had applied to FSCO prior to IRBs being denied by TD. My reasons are below.

11In January 2016, TD retained Price Waterhouse Coopers LLP (“PWC”) to complete an accounting report to determine the IRB quantum for Ms. Yang as she was self-employed. PWC sent request letters¹ to TD outlining the documentation PWC required to calculate the quantum of Ms. Yang’s IRBs. Ms. Yang does not dispute she received a request to produce the documentation through a s. 33 request from TD. Her position is that she filed an application for mediation with FSCO sometime in April 2016 to dispute IRBs and this was within the two-year limitation period. The Application for Mediation dated March 10, 2016 was completed by Ms. Yang’s legal representative, Mr. Yau.² TD submits that Ms. Yang filed for mediation with FSCO on March 12, 2016 and a Response to an Application for Mediation was dated and signed by TD on April 18, 2016. This Response noted that the requested documentation which PWC required to determine the IRB quantum had not been produced by Ms. Yang. As a result, TD was unable to determine the IRB entitlement. A mediation through FSCO never proceeded and Ms. Yang submits that she received no further instruction from FSCO, and discussions regarding her IRB claim continued with TD.

12I do not accept that Ms. Yang’s application to FSCO sometime in March/April 2016 establishes that she applied to dispute IRBs within two years of the TD’s denial of IRBs. My finding is based upon two reasons.

13First, Ms. Yang applied to FSCO prior to the IRBs being denied by TD. The termination letter dated August 12, 2016 noted a stoppage date for the IRB of September 2, 2016 and I accept the latter to be the date when TD formally denied the IRBs. I find the letters from PWC from January to April 2016 were request letters noting the documentation required from Ms. Yang to calculate the IRB quantum. These letters did not state her IRB claim was being denied. Ms. Yang submits that after she filed an application with FSCO, ongoing communication with TD regarding her lRB claim ensued as TD scheduled IE’s for Ms. Yang to attend. There were 5 psychological and physiatry IE reports commissioned by TD between May and August of 2016 to assist TD with determining Ms. Yang’s entitlement to IRBs. I find this is consistent with TD’s obligation to continue to adjust her file.

14Second, effective April 1, 2016, a new process through the Tribunal replaced the regime which had been previously handled by FSCO for addressing statutory accident benefits disputes. Ms. Yang submits she received no further instruction/direction from FSCO after she filed her application with FSCO in April 2016. She further submits that during the transfer of jurisdiction between FSCO and the Tribunal, the procedure was unclear and as a result she was confused.

15I do not accept this to be a reasonable explanation for why Ms. Yang filed an application with the Tribunal to dispute IRBs 8 months beyond the two year limitation period which expired September 2, 2018. That represents a significant time period in which Ms. Yang could have clarified any confusion surrounding the procedure for applying to dispute TD’s denial of IRBs prior to the two year limitation period expiring.

16Ms. Yang argues that she produced to TD a copy of her own accounting report for the IRB quantum calculation, dated July 10, 2017 (“applicant’s IRB report”). She further submits that this report was never denied by the respondent. She argues that the filing of her application to dispute IRB entitlement at the Tribunal on May 1, 2019 is within the limitation period, as no denial date for this report exists.

17TD submits it was not required to respond to the applicant’s IRB report as the IRB was previously denied on medical grounds within the TD’s termination letter. The denial of IRBs was based on entitlement, not quantum. TD submits it had an ongoing duty to continue to adjust Ms. Yang’s file and at no time did it reinstate the IRB. TD further argues that Ms. Yang did not produce further medical documentation specifically addressing the IRB entitlement.

18I do not accept that the lack of a denial from the respondent in writing following its receipt of the applicant’s accounting report waives the two-year limitation period. The IRB was never reinstated after the termination letter was issued. I have already found that the termination letter was a clear and unequivocal denial of IRBs effective September 2, 2016. I find the two-year limitation period expired on September 2, 2018. Therefore, the applicant filing her application with the Tribunal on May 1, 2019 to dispute the denial of IRBs was nearly 8 months beyond the two-year limitation period.

19In the alternative, Ms. Yang requests an extension of the limitation period pursuant to s. 7 of the Licence Appeal Tribunal Act, 1999³ (“LAT Act”). Ms. Yang submits that she should be granted an extension of time beyond the two-year limitation period. I have consequently considered the application of s. 7 of the LAT Act to this case.

The Applicant’s claim is not extended in accordance with Section 7 of the Licence Appeal Tribunal (LAT) Act

20Section 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

21Further, the Tribunal’s reconsideration decision⁴ noted the Tribunal is required to consider whether an extension of time should be granted under s. 7 of the LAT Act.

22There are 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.

23I will address the four criteria which the Tribunal must consider when determining if an extension of time is to be granted under s. 7 of the LAT Act.

Bona Fide Intention to Appeal

24I do not find there was a bona fide intention to appeal. I find even though Ms. Yang initially filed an Application for Mediation dated March 10, 2016 with FSCO in March/April 2016, this was prior to TD’s denial of IRBs. Therefore, Ms. Yang’s submissions that she received no response from FSCO is irrelevant as IRBs were not denied at that point. I find there was a significant lapse in time which equated to 2 years and 8 months between the IRB termination and Ms. Yang’s application disputing IRBs being filed with the Tribunal. This was a little more than three years since the Tribunal process replaced the old regime with FSCO. I do not accept Ms. Yang’s submission that ongoing correspondence and assessments with TD from January 11 to August 11, 2016 relating to IRB entitlement equates to a bona fide intention to appeal. Instead, I find this merely demonstrates TD’s ongoing adjustment of her file, which it has an obligation to do.

25Ms. Yang relies on the Tribunal decision of D.A. and Aviva Insurance Canada⁵ to support her position that she was actively engaged in the dispute resolution process. I find that case distinguishable from the case before me for the following reasons. The insurer in that case denied the applicant’s claim for non-earner benefits which prompted the applicant to apply for mediation at FSCO within two years of the date of denial. The applicant filed an application with the Tribunal within 90 days of the issuance of the Report of Mediator by FSCO. The adjudicator found that her appeal was filed within the 90 day extended limitation period prescribed by s. 56 (2) of the Schedule and as a result, her appeal was not statute barred. I find the case before me distinguishable as Ms. Yang applied for mediation at FSCO prior to her IRBs being denied. When her IRBs were denied on September 2, 2016, Ms. Yang waited until May 1, 2019 before she filed her appeal with the Tribunal to dispute IRBs. I did not find her explanation for the delay was reasonable and I am not persuaded by her argument that she was actively engaged in the dispute resolution process.

26I rely on the Tribunal decision referenced by the respondent, S.S. and Allstate Canada⁶ which I find is persuasive and analogous to this case. In that decision, the adjudicator determined that the transition from FSCO to the Tribunal was not a reasonable ground to extend the limitation period. In that case, the jurisdictional transition between FSCO and the Tribunal occurred 23 months prior to the applicant filing an application with the Tribunal and the adjudicator found that the applicant had sufficient time to clarify any ambiguity regarding the timeline to commence an appeal. I will apply that same reasoning here. I find Ms. Yang had sufficient time to clarify any confusion relating to the lack of a response from FSCO and then commence her appeal with the Tribunal prior to the two year limitation period expiring on September 2, 2018.

Length of the Delay

27I find the length of the delay to be significant and does not warrant an extension of time under s. 7 of the LAT Act. Ms. Yang submits that when the jurisdiction transferred from FSCO to the Tribunal for statutory accident benefit disputes, it was unclear, and as a result she was confused. However, I have already addressed above why I am not persuaded by this argument. I am also not persuaded by Ms. Yang’s argument that the application to the Tribunal on May 1, 2019 was within the two year limitation period as TD did not issue a denial for the applicant’s accounting report dated July 10, 2017. I already provided my reasons in paragraph 16 why this argument was not persuasive. Therefore, I find the applicant has not provided reasonable explanations for the 8 month delay beyond the expiration of the two-year limitation period when she filed her application with the Tribunal.

Prejudice to the Other Party

28I find as a result of Ms. Yang not proceeding in a timely manner with filing her application with the Tribunal, there would be significant prejudice to TD if the matter were to proceed to a hearing. It therefore does not warrant granting an extension of time under s. 7 of the LAT Act. TD submits that its medical IE reports to be relied on for the hearing were commenced in 2016 and these reports would be more than 4 years old by the time a hearing commences. Further, TD submits there may be difficulty locating witnesses to testify and there may have been changes to Ms. Yang’s condition since she was last assessed by these IE assessors. I agree with TD’s submission that it would be inappropriate and prejudicial for TD to rely on evidence which is dated. I find that the circumstances Ms. Yang is faced with as a result of not filing her application within the two year limitation period is not the result of any action or inaction on the part of TD and subsequently, they should not be prejudiced as a result.

Merits of the Appeal

29Ms. Yang relies on medical evidence including psychological and chronic pain assessment reports⁷ to support her entitlement to IRBs. The reports provide evidence that Ms. Yang suffers from psychological impairment and chronic pain syndrome. The respondent argues Ms. Yang does not meet the legal test for entitlement to IRBs as defined within s. 5 of the Schedule as she continued to work following the accident. This information is noted within the 2016 psychological and physiatry IE reports. These reports noted Ms. Yang returned to work in a reduced capacity and works fewer hours. This evidence was also supported in Ms. Yang’s orthopedic assessment report of Dr. T. Getahun, dated September 8, 2019. For the purposes of the analysis under s. 7 of the LAT Act, I find that Ms. Yang satisfies this criterion in that there are merits to her IRB appeal. However, my ultimate finding, with respect to the other factors discussed above, remains unchanged.

30TD submits that the Tribunal does not have jurisdiction to extend the limitation period under s. 7 of the LAT Act and relies on the Tribunal decision, 18-001196 v. Certas Home and Auto Insurance Company.⁸ 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. 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 TD.

CONCLUSION

31I have considered the criteria under s. 7 of the LAT Act and I find Ms. Yang has not met three out of the four criteria granting an extension of time. Therefore, Ms. Yang is statute-barred from proceeding with her claim for IRBs as she failed to commence her application within two years after TD denied payment of her IRB claim and an extension is not warranted. The applicant’s claim is dismissed.

Footnotes

1. 1Tab 2 of the applicant’s submissions – request letters dated January 22, February 22, April 15, 2016 from PWC to respondent requesting documentation required from Ms. Yang to calculate IRB quantum
2. 2Tab E of the respondent’s submissions – Application for Mediation, dated March 10, 2016.
3. 3Licence Appeal Tribunal Act, 1999, S.O. 1999, C. 12, Schedule G
4. 4A.F. and North Blenheim Insurance Company, 2017 CanLII 87546 (ONLAT), December 13, 2017
5. 516-001381 D.A. and Aviva Insurance Canada, 2018 CanLII 39443 (ONLAT), March 5, 2018
6. 618-002292 S.S. and Allstate Canada, 2019 CanLII 76842 (ONLAT), June 26, 2019, at para 19
7. 7Tab 3 of the applicant’s submissions – psychological assessment report of Dr. N. Browne, dated May 1, 2017, psychological progress reports of Dr. N. Browne dated October 26, 2017, August 24, 2018, March 5, 2019, and chronic pain assessment report of Dr. T. Getahun, dated September 8, 2019
8. 818-001196 v. Certas Home and Auto Insurance Company, dated September 5, 2019, unreported case on, para 15