Released Date: 06/03/2020
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:
[F.P.]
Applicant
and
The Personal Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Avril A. Farlam, Vice Chair
APPEARANCES:
For the Applicant:
James Armstrong
Counsel
For the Respondent:
Brittanny K. Tinslay
Counsel
HEARD:
Heard by way of written submissions
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant [F.P.] (“applicant”) was involved in an automobile accident on November 15, 2016 (“accident”), and sought benefits pursuant to the Statutory Accident Benefits Schedule1 - Effective September 1, 2010 (the ''Schedule'').
2March 30, 2017, The Personal Insurance Company (“respondent”) denied payment of income replacement benefits (“IRB”), non-earner benefits (“NEB”) and other benefits claimed by the applicant. The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).
ISSUE
3The issue to be decided is:
i. Whether the applicant is barred from proceeding with his claim for NEB as he failed to commence his application within two years after the respondent’s refusal to pay the amount claimed?
RESULT
4The applicant’s application is statute-barred. The application is dismissed.
LAW
5Section 56 of the Schedule provides that an application before the Tribunal in respect of a benefit shall be commenced within 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.
6Section 7 of the Licence Appeal Tribunal Act, 19992 (LATA) allows the Tribunal to extend a limitation period under certain circumstances. In considering whether to exercise its discretion to extend the limitation period the Tribunal must consider the following four factors3:
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.
7The onus is on the applicant to establish reasonable grounds for an extension under s. 7 of LATA.
Respondent’s position
8The respondent submits that the application contravenes s. 56 of the Schedule because it was commenced more than two years after the respondent’s refusal to pay the amounts claimed. The respondent submits that its denials were clear and unequivocal and it would be prejudiced if the limitation period was extended.
Applicant’s position
9The applicant submits that he mistakenly claimed IRB instead of NEB and he requested to correct his application at the September 26, 2019 Tribunal case conference but the respondent declined to agree. The applicant also submits that the respondent’s denial was not clear and unequivocal but was confusing and ambiguous and therefore the limitation period did not start on the date of the denial, the Tribunal should relieve against compliance with the limitation period because the Schedule is remedial, consumer protection legislation and any ambiguity should be resolved in favour of the applicant. Finally, the applicant asks that the Tribunal relieve against the limitation period under s. 7 of the Schedule or on the basis of procedural fairness.
ANALYSIS
Is the Applicant’s Tribunal Application Statute-Barred?
10For the following reasons, I find that the respondent has met its burden of proof to establish that the limitation period expired in relation to the NEB now claimed in the applicant’s application.
11The applicant sent to the respondent an OCF-1, application for accident benefits dated December 5, 2016. In an explanation of benefits (EOB) dated March 30, 2017 the respondent told the applicant that the respondent had determined he was not eligible for income replacement benefits (IRB), NEB and other benefits. The EOB was a denial of all benefits including NEB. The reasons for the denial of the NEB were set out in the EOB and were clear, concluding with the statement that “Overall, from the information provided we do not believe you suffer a complete inability to carry on with your normal activities of daily living as a result of injuries sustained in the accident”. The EOB included a warning that the applicant had two years from the date of the respondent’s refusal to pay to file an application with the Tribunal. I find that the respondent’s March 30, 2017 written denial was clear, unequivocal, not confusing or ambiguous.
12On February 25, 2019 the applicant filed an application with the Tribunal regarding IRB only. Shortly before the September 26, 2019 Tribunal case conference the applicant indicated he wished to change the issue in dispute from IRB to NEB. The respondent took the position that the NEB issue was beyond the two year limitation period and the Tribunal ordered this written hearing.
13The applicant argues that the respondent had evidence from the applicant well before the limitation period expired that the applicant was not employed at the time of the accident and therefore NEB was the only benefit the applicant could possibly be entitled. I am not persuaded by this argument. In the EOB the respondent denied several benefits including both IRB and NEB for the reasons it stated.
14The applicant argues that the respondent did not seek clarification of why the applicant had claimed IRB on the application to the Tribunal. This is also not persuasive. In the Tribunal application, it is up to the applicant to claim whatever benefit(s) he believes he may be entitled to, not the respondent. The applicant had the assistance of his counsel throughout.
15The applicant argues that the Schedule is remedial and consumer protection legislation. This principle is not in dispute. However, this principle does not relieve the applicant of the obligation to comply with the legislated limitation period for filing an application to the Tribunal.
16I find that the applicant has not met his onus to establish reasonable grounds for an extension under s. 7 of LATA. I decline to exercise my discretion to extend the deadline to appeal the NEB.
17The applicant’s evidence fails to show a bona fide or good faith intention to appeal within the appeal period. The appeal period ended March 30, 2019. The application shows that the applicant intended to appeal the IRB only as that is stated to be the only benefit claimed. The applicant had more than one month after the filing of his application to amend or change his application before the appeal period ended but did not do so. Between February 25, 2019 and September, 2019 the applicant did not advise the respondent of any alleged error in his application.
18The applicant did not seek to claim NEB until approximately September 25, 2019, almost six months after the limitation period had ended. Almost six months delay is excessive.
19Given this length of time, there would be prejudice to the respondent, not now curable, as the respondent has been denied the opportunity to obtain evidence as to the applicant’s medical state some years earlier.
20The applicant has failed to establish that his application has merit. The applicant argues that the December 5, 2016 report from Dr. Talib, physician at LifeMark Heath, would support his entitlement to NEB. This report states that one of the rehabilitation goals is to “return to activities of normal living” in “12+weeks”. Although Dr. Talib indicates in the OCF-3 disability certificate dated February 16, 2017 that the applicant suffers a complete inability to carry on a normal life, the explanation given is “daily headaches, worsened back pain, left shoulder pain, insomnia” there is insufficient meaningful medical evidence to support this conclusion. The applicant also relies on the physiatry report of Dr. Waseem dated April 22, 2019, which indicates that “Activities that were central to his life have been adversely affected due to the accident-related injuries amounting to a complete inability to carry on a normal life.” The injuries as described by Dr. Talib are unlikely to meet the test for NEB. The report of Dr. Waseem is unlikely to meet the test for NEB given that he assessed the applicant on a single occasion, some three years after the accident.
ORDER
21The applicant’s application is statute-barred and is dismissed.
Released: June 3, 2020
Avril A. Farlam, Vice Chair
Footnotes
- O.Reg. 34/10
- S.O. 1999, c. 12, Sched. G.
- Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (Div. Ct.)