P.W. v. Certas Home and Auto Insurance Company, 2020 CanLII 42813

Citation: P.W. v. Certas Home and Auto Insurance Company, 2020 ONLAT 19-002813/AABS

Released Date: 06/15/2020

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:

P. W.

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant:

Sheena Sodhi, Counsel

For the Respondent:

Sharla Bandoquillo, Counsel

Heard by way of written submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant, P. W. (“applicant”), was involved in an automobile accident on October 30, 2013 (“accident”), and sought benefits pursuant to the Statutory Accident Benefits Schedule¹ - Effective September 1, 2010 (the ''Schedule'').

2The respondent, Certas Home and Auto Insurance Company (“respondent”), denied payment of income replacement benefits (“IRB”) 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. Is the applicant eligible to make a claim for an IRB or is she statute barred due to a limitation period pursuant to s. 56 of the Schedule?

RESULT

4The applicant’s application is statute-barred. The application is dismissed.

LAW

5An employed person’s entitlement to IRB falls under s. 5(1)(1)(i) of the Schedule: an IRB is payable if the insured was working at the time of the accident and, within 104 weeks of the accident, suffers a substantial inability to perform the essential tasks of that employment. Section 6(1)(2)(b) of the Schedule provides that, in order for the applicant to maintain entitlement to an IRB after the first 104 weeks of disability, the applicant must demonstrate that as a result of the accident, she suffers a complete inability to engage in any employment for which the applicant is reasonably suited by education, training or experience.

6Section 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.

7Section 7 of the Licence Appeal Tribunal Act, 1999² (“LAT Act”) 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.

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

Applicant’s position

9The applicant’s submissions are three-fold: 1) that the respondent took no steps to determine her ongoing entitlement to IRB in response to her ongoing inability to maintain employment status as a result of her accident related impairments; 2) she was misled by the respondent’s September 10, 2018 letter requesting further information in order to determine entitlement to post-104 weeks IRB; and, 3) that the respondent has not medically assessed the applicant under s. 44 of the Schedule for the purpose of determining her entitlement to IRB pre-or-post 104 weeks. The applicant seeks an Order that she is eligible to claim IRB post 104 weeks and an Order that the respondent assess the applicant for the purpose of determining post-104 week IRB entitlement.

10In reply, the applicant also submits that the “hard limitation period” would bar her from claiming IRB even before she was eligible for this benefit, would lead to an absurd result, is inconsistent with the Supreme Court’s guidance in Pioneer Corp. v. Godfrey⁴ and the Schedule’s consumer protection purpose, and that the limitation period is subject to the rule of discoverability.

Respondent’s position

11The respondent submits that the application contravenes s. 56 of the Schedule because it was commenced more than two years after the respondent’s clear and unequivocal denial of the IRB claim on March 24, 2014 and the applicant should be held to the limitation period.

ANALYSIS

Is the Applicant’s Tribunal Application Statute-Barred?

12For the following reasons, I find that the respondent has met its burden of proof to establish that the limitation period expired in relation to IRB claimed in the applicant’s application.

13The respondent paid the applicant IRB from November 6, 2013 to March 24, 2014 less short-term disability benefits (STD) paid by her employer [The health care Canada]. The applicant returned to work on a modified basis at first and then on a regular basis by March 24, 2014. The respondent denied IRB as of March 24, 2014 in an explanation of benefits (EOB) dated May 12, 2014. The reasons for the denial are set out in the EOB and are clear including, “Based on our phone conversation with… employer [The health care Canada]on May 12, 2014, you have returned to your pre-accident employment duties effective March 24, 2014. You are no longer eligible to receive an income replacement benefit effective March 24, 2014”. The EOB included a warning that the applicant had two years from the date of the respondent’s refusal to pay to dispute the decision by filing an application through the Financial Services Commission of Ontario. I find that the respondent’s May 12, 2014 written denial was clear, unequivocal, not confusing or ambiguous. The denial was copied to the law firm representing the applicant.

14Post-104 weeks after the accident, the applicant stopped working and made STD claims to her employer including from February 2016 to August 2016. On June 4, 2018 the applicant wrote to the respondent asking for an IRB calculation as she “…stopped working November 15, 2017”. In response, the respondent sent an EOB dated June 26, 2018 stating that the applicant was no longer entitled to IRB and referred to the denial on May 12, 2014. September 5, 2018 the applicant took the position that “…your previous stoppage date on the IRBs is not applicable. Ms. W. had returned to work in 2016 and IRBs were stopped. Soon after, Ms. W. went back on to STD as a result of her ongoing MVA-related impairments. Once STD was maxed out, she applied to LTD and was denied. We ask that your assessors reassess Ms. W. on IRB given current diagnosis and medicals. Ms. W. continues to remain off work and with financial difficulties due to her…MVA-related symptoms.”

15In its letter dated September 10, 2018, the respondent noted that the applicant’s “…previous inability to work has not solely been as a result of accident related injuries….If the insured would like to re-apply for an income replacement benefit, please have her treating practitioner submit a disability certificate identifying what injuries prevent her from working…I note that your letter of April 25, 2018 indicated that an OCF-3 would follow, but we have not yet received one. Upon receipt of same, we will provide a determination regarding entitlement to income replacement benefits.” In its January 16, 2019 EOB, the respondent maintained its 2014 denial of IRB as follows: “We have reviewed the recently submitted documentation…regarding Income Replacement Benefits. Further to our correspondence sent dated May 12, 2014, we maintain our position that you are no longer entitled to Income Replacement Benefits.” On March 12, 2019 the applicant filed an application with the Tribunal regarding post-104 week IRB only.

16The applicant’s argument that the respondent took no steps to determine her ongoing entitlement to IRB is not supported by the evidence. As recently as January 16, 2019, the respondent confirmed that it had reviewed documentation sent to it by the applicant. However, the respondent maintained its denial of IRB.

17The applicant’s argument that she was misled by the respondent’s September 10, 2018 letter requesting further information in order to determine entitlement to post-104 weeks IRB and that the respondent is estopped by this correspondence from maintaining its denial of IRB is also not persuasive. Considered in the context of the correspondence between the applicant’s counsel and respondent, this letter does not constitute an agreement to pay IRB or any other basis of estoppel because the letter expresses only an intention to look at further information if forwarded by the applicant. There is nothing in this letter that precludes the respondent from denying, as it already had, the applicant’s entitlement to IRB.

18The applicant argues that the respondent has not medically assessed the applicant under s. 44 of the Schedule for the purpose of determining her entitlement to IRB pre-or-post 104 weeks is not persuasive. Section 44 is permissive, not obligatory and nothing obligated the respondent to proceed under it.

19I am also not persuaded by the applicant’s arguments that the “hard limitation period” would bar her from claiming IRB even before she was eligible for this benefit, would lead to an absurd result not consistent with case law including Pioneer Corp. v. Godfrey and the Schedule’s consumer protection purpose and that the limitation period is subject to the rule of discoverability. The limitation period for filing a claim for pre-104 week IRB expired May 12, 2016. Between the date her IRB payments stopped in 2014 and May 14, 2016, the applicant chose, for her own reasons, not to challenge the respondent’s denial of her claim for IRB. A claim for IRB benefit post-104 weeks can only succeed if the applicant has established eligibility for IRB within the first 104 weeks after the accident, which the applicant did not do after the denial. The applicant’s argument that each refusal to pay IRB sets a new two-year limitation period cannot succeed and has been rejected by the Ontario Court of Appeal.⁵

20The applicant relies on Tomec v. Economical Mutual Insurance Company⁶ and Pioneer Corp. v. Godfrey and particularly paragraph 36 of Pioneer which indicates that “…discoverability will apply if it is evident that the operation of a limitation period is, in substance, conditioned upon accrual of a cause of action or knowledge of an injury”. The discoverability principle is not in dispute. Here, the applicant knew she had suffered injury and knew of her right to claim IRB. The proof of this is that she claimed and was paid IRB for a period of time. The applicant chose not to pursue her right to challenge the respondent’s denial of IRB within two years after the respondent’s May 12, 2014 denial letter for her own financial reasons. As a result, there is no factual basis for the applicant to argue the legal principle of discoverability.

21The applicant also argues that the Schedule is 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.

22I find that the applicant has not met her onus to establish reasonable grounds for an extension under s. 7 of LAT Act and I decline to exercise my discretion to extend the deadline to appeal IRB for the following reasons.

23The applicant’s evidence fails to show a bona fide or good faith intention to appeal within the appeal period. I find that the appeal period ended on May 14, 2016, two years after the respondent communicated to the applicant its denial of IRB. The applicant says she did not work from February 2016 to August 2016. In February 2016, the limitation date of May 12, 2016 had not yet expired. In reply submissions the applicant says that she did not dispute the IRB claim within 104 weeks of the accident because her STD and post-accident income exceeded the maximum IRB payable. However, she also did not dispute the IRB claim before the two year limitation period expired on May 14, 2016. Correspondence from the applicant to the respondent about IRB came some two years later.

24The applicant did not dispute the IRB claim until March 12, 2019 when she filed an application with the Tribunal regarding post-104 week IRB only. This was an excessive delay of some 34 months after the limitation period had ended.

25Given 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 several years earlier.

26The applicant has failed to establish that her application has merit. As the applicant is unlikely to be able to satisfy her burden of substantiating entitlement to pre-104 week IRB because she was working intermittently, the post-104 week eligibility test of complete inability to engage in any employment is also unlikely to be met.

ORDER

27The applicant’s application is statute-barred and is dismissed.

Released: June 15, 2020

__________________________

Avril A. Farlam, Vice Chair

Footnotes

1. 1O.Reg. 34/10.
2. 2S.O. 1999, c. 12, Sched. G.
3. 3Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (Div. Ct.).
4. 42019 SCC 42, 2019 S.C.C. 42, para. 36.
5. 5Bonilla v. Preszler et al, 2016 ONCA 759 at para. 10.
6. 62019 ONCA 882 at page 10-11, paras. 27, 31, 39.```