C.A. v. Allstate Insurance Company of Canada, 2020 CanLII 47497

Citation: C.A. vs. Allstate Insurance Company of Canada. 2020 ONLAT 19-005816/AABS

Released Date: 07/07/2020

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:

C.A.

Applicant

and

Allstate Insurance Company of Canada

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR: Sandeep Johal

APPEARANCES:

Paralegal for the Applicant: Taser Shah

Counsel for the Respondent: Lisa Quan

Heard by way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on July 8, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was receiving an income replacement benefit (“IRB”) from July 15, 2016 which was subsequently denied by way of a letter dated June 1, 2017. The applicant also applied for an attendant care benefit (“ACB”) which was denied on May 23, 2017 and physiotherapy treatment which was denied on April 26, 2017. The applicant disagreed with these denials and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3The applicant filed her Tribunal Application on June 3, 2019 and served the respondent with the Application on June 12, 2019.

4The respondent raised a preliminary limitation issue at the case conference that the applicant filed her Tribunal Application beyond the two-year limitation period and as a result this written preliminary issue hearing was scheduled.

PRELIMINARY ISSUE

5The preliminary issue is whether the applicant is statute barred from bringing this application to the Tribunal to dispute the IRB, ACB and physiotherapy denials as they were not disputed within the two year limitation period as per section 56 of the Schedule.

6In the applicant’s submissions, she withdrew the issue of the ACB and the physiotherapy treatment plans and as a result, only the issue of the IRB and whether it was appealed within the limitation period will be addressed as part of this decision.

RESULT

7The applicant’s appeal of the IRB was filed beyond the two-year limitation period, however I find that under s. 7 of the Licence Appeal Tribunal Act² the justice of the case requires the limitation period to be extended. The applicant is therefore entitled to dispute the IRB denial at the Tribunal.

ANALYSIS

8Section 56 of the Schedule sets out that the application to dispute a denial of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.

9The respondent’s position is that the IRB was denied by way of a letter dated June 1, 2017 which included an Explanation of Benefits (OCF-9) and it also included the applicant’s Rights to Dispute which set out the step by step guide for disputing the denial and emphasised the two-year time limit in block capital letters and bolded to signify its importance. As a result, the respondent submits its denial was clear and unequivocal.

10The respondent further submits that on June 10, 2019, it received a package in the mail from the applicant which included a compact disc (CD) of supporting documentation as well as a cover letter dated May 31, 2019, however the package did not include the Tribunal Application or a Declaration of Representative form.

11The applicant’s position is that her representative attempted to file the appeal application on Friday May 31, 2019 to the Tribunal however the fax was not received and it was re-sent successfully on Monday June 3, 2019 to the Tribunal.³

12On June 12, 2019 the respondent for the first time received the Tribunal application dated May 31, 2019.

13The applicant does not dispute the denial date for the IRB being June 1, 2017 and she also does not dispute the fact the IRB denial was clear and unequivocal.

14The applicant’s appeal application to the Tribunal was filed on June 3, 2019, which is two days outside the two-year limitation period. The respondent received the appeal application on June 12, 2019 which is ten days outside the limitation period.

15The respondent further submits that the Tribunal does not have jurisdiction to extend the limitation period under s. 7 of the Licence Appeal Tribunal Act.⁴ It relies upon the reconsideration decision of S.S. v. Certas Home and Auto Insurance Company⁵ and M.N. v. Aviva General Insurance Company,⁶ wherein Adjudicator Neilson determined in both cases that the Tribunal does not have jurisdiction to grant an extension under s. 7 of the LAT Act.

16In the alternative, the respondent submits that the applicant has not provided reasonable grounds of the four factors to extend the limitation period from the case of A.F. v. North Blenheim Mutual Insurance Company.⁷

17The applicant submits the Tribunal has jurisdiction to extend or vary the limitation period under s. 7 of the LAT Act. Furthermore, the applicant relies upon the reconsideration decision of the Executive Chair which sets out the four-part test to determine whether the justice of the case requires that the extension be granted.⁸

18The S.S. decision has been appealed to the Divisional Court for an ultimate determination on whether or not the Tribunal has jurisdiction to extend the limitation period by virtue of s. 7 of the LAT Act. However, I prefer to rely on the numerous decisions of the Tribunal wherein s. 7 of the LAT Act has been found to be within the Tribunal’s jurisdiction to extend the limitation period in support of my view that the Tribunal does have jurisdiction to grant an extension. See for example the Reconsideration Decision of W.R. v. Unifund Assurance Company.⁹

19As a result, I will now turn to discuss whether or not the limitation period should be extended.

Should the Limitation period be extended by virtue of section 7 of the LAT Act?

20The Tribunal has jurisdiction to extend the time for filing of an appeal pursuant to section 7 of the LAT Act, which reads:

Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by 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.

21In Manuel v. Registrar, Motor Vehicle Dealers Act, 2002,¹⁰ the Divisional Court ruled that the overriding consideration on a request for an extension of time is whether the justice of the case requires that the extension be granted. The factors to be considered in making this determination are:

a. The existence of a bona fide intention to appeal within the appeal period;

b. The length of the delay;

c. Prejudice to the other party; and

d. The merits of the appeal.

22The appellant has the onus to establish that the justice of the case requires the granting of the extension, but he or she 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.

Did the applicant have a bona fide intention to appeal?

23The respondent’s position is that the applicant did not have an intention to appeal within the two years as the denial date was June 1, 2017 and she chose not to appeal it until June 12, 2019.

24The applicant submits that her legal representative has provided evidence in support of her claim that there was an attempt to fax the required documents to the Tribunal and the Respondent on May 31, 2019 however the fax to the Tribunal did not successfully go through on May 31, 2019,¹¹ and it was resent successfully on the next business day, June 3, 2019.¹²

25The applicant further submits that her legal representative sent the supporting documentation by mail to the respondent on May 31, 2019 and by fax on the same date, however one digit of the fax number was incorrect and the fax did not go through successfully to the respondent.¹³

26In my view, the applicant attempted to fax the Application by an Injured Person for Auto Insurance Dispute Resolution under the Insurance Act on May 31, 2019 at 3:19 p.m. to the respondent. However, through inadvertence, one digit of the respondent’s fax number was inputted incorrectly,¹⁴ which is the reason why the respondent did not receive it on that day.

27After a review of the evidence, it is clear that the applicant had a bona fide intention to appeal within the appeal period by attempting to fax the documents to the Tribunal and the respondent on May 31, 2019. As a result, I find that the applicant had a bona fide intention to appeal within the appeal period and the first factor is in support of the applicant.

The length of the delay

28The length of the delay in filing the appeal application past the two year mark is two days to the Tribunal and ten days to the respondent. The respondent relies upon the Manuel case in support of its position that even a relatively short delay does not in an of itself warrant granting an extension of time because in doing so, relatively short delays would always result in an extension of time which would undermine the very purpose of appeal periods.¹⁵

29The applicant submits that the delay to the Tribunal is two days which were not business days and the delay to the respondent was seven business days. Furthermore, the applicant relies upon the Tribunal case of W.R. and Unifund Assurance Company¹⁶ wherein a short delay of six business days resulted in the extension being granted.

30In Manuel it was held that a short delay in itself is not sufficient to grant an extension of time as all four aspects need to be considered and no one element necessarily is determinative but there must be an explanation for the delay. In Manuel, there was no explanation for the delay and that was part of the reason for the extension not being granted. However, in the present case the applicant has provided an explanation for the delay, the applicant’s legal representative was under the impression that there was no error in the fax transmission to the respondent. Once the error was discovered the documentation was resent the same day the error was discovered.

31As a result, I find that the applicant has a reasonable explanation for the length of the delay and this factor is in support of the applicant.

Prejudice to the respondent

32The respondent submits it is prejudiced because it could have responded to the litigation differently, such as obtaining additional reports at the relevant time or concurrent documentation or addenda reports and surveillance.

33The applicant submits there will not be a material prejudice to the respondent as the respondent had two years prior to the limitation period to obtain this documentation and chose not to. It is the applicant’s position that a delay of up to seven days would not have changed this and in any event, if further reports and addendums are required, they can be obtained now prior to a hearing on the merits of the IRB.

34I agree with the applicant. I am not persuaded by the respondent’s submission that a delay of approximately seven days will prevent the respondent from obtaining any additional medical reports, especially since a hearing on the merits of the IRB has not yet been scheduled.

35As a result, I find this factor to be in support of the applicant.

Merits of the appeal

36This factor does not require me to make a determinative ruling on the merits, but on the facts to assess whether the applicant has a reasonable chance of success. The respondent submits the applicant has no merit in her disputing the IRB claim as she failed to comply with a s. 33 request for further information with respect to any further income received. Furthermore, the respondent relies upon its insurer examination (“IE”) assessments in support of denying the IRB.

37In my opinion, this written hearing was a preliminary issue hearing and not on the merits of the applicant’s case, the fact that the applicant was receiving an IRB previously would support her position that there she has a reasonable chance of success and that is all that is required with respect to this factor. A detailed analysis of proving entitlement to the IRB is not necessary in deciding this factor. Even though a detailed review of the IE reports finds that the applicant is not entitled to the IRB, no one factor is determinative.

38All four factors do not need to be satisfied; however, an analysis and balancing all the factors as discussed above is required. After a consideration of the four factors, I find that the applicant had a bona fide intention to appeal within the appeal period and an explanation for the delay. I find there to be minimal, if any, prejudice to the respondent and there may be some merit in the applicant’s IRB claim. After considering all four factors together, I conclude that the justice of the case warrants extending the limitation period for the IRB.

ORDER

39The application for the IRB is entitled to be appealed as a result of the application of s. 7 of the LAT Act and either party may contact the Tribunal to schedule a case conference to determine the next steps in this matter.

Footnotes

1. 1O. Reg. 34/10.
2. 2S.O. 1990, c.12 (“LAT Act”).
3. 3Written Submissions of the Applicant at Tab E.
4. 4S.O. 1999, c. 12, Sched. G (“LAT Act”).
5. 52016 CanLII 153125 (ON LAT) (“S.S.”).
6. 62019 CanLII 119731 (ON LAT) (“M.N.”).
7. 72017 CanLII 87546 (ON LAT) (“North Blenheim”).
8. 8A.F. v. North Blenheim Mutual Insurance Company 2017 CanLII 87546 (ON LAT) (“North Blenheim”).
9. 92019 CanLII 40291 (ON LAT) at paras. 25-31.
10. 102012 ONSC 1492 (“Manuel”).
11. 11Written Submissions of the Applicant at Tab D.
12. 12Ibid at Tab E.
13. 13Ibid at Tab B.
14. 14Ibid.
15. 15Manuel at para. 27.
16. 162018 CanLII 83502 (ON LAT)