F.G. v. Aviva General Insurance, 2020 CanLII 58823

Citation: F.G. vs. Aviva General Insurance, 2020 ONLAT 19-002587/AABS

Date: July 31, 2020

Tribunal File Number: 19-002587/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:

F. G.

Applicant

and

Aviva Insurance

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Melissa Chan

For the Respondent: Danielle Wilkinson

Heard by way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on August 10, 2016 and sought benefits from the respondent pursuant to O. Reg. 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).

2The respondent refused to pay for certain income replacement benefits (“IRBs”), medical benefits, and costs of examinations. In response, the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

3At the case conference, the respondent raised a preliminary issue asserting the applicant is statute-barred from bringing the application pursuant to section 56 of the Schedule and subsection 280(2) of the Insurance Act, which is the subject of this hearing.

ISSUE

4Is the applicant statute-barred from applying to the Tribunal to dispute the respondent’s refusals to pay benefits pursuant to section 56 of the Schedule?

RESULT

5The applicant is statute-barred from applying to the Tribunal to dispute the respondent’s refusals to pay benefits pursuant to section 56 of the Schedule.

BACKGROUND

6The applicant was involved in an accident on August 10, 2016 and applied for and received accident benefits from the respondent. The applicant engaged in treatment within the Minor Injury Guideline (MIG), which the respondent funded. He also claimed entitlement to treatment outside the MIG; however, the respondent refused to fund it. The earliest denial of benefits occurring on August 31, 2016.

7The applicant also applied for and received IRBs from the respondent. The respondent paid IRBs until January 29, 2017. Payment of the benefit was stopped based on the recommendation in an insurer’s examination (“IE”) report.

8The applicant filed an application with the Tribunal on March 8, 2019, disputing the respondent’s decision to deny the benefits claimed. The respondent submits the application is made more than two years following its denials and, pursuant to section 56 of the Schedule, the applicant is statute-barred from applying to the Tribunal to resolve these disputes.

LIMITATION PERIOD

9Pursuant to section 56 of the Schedule, the applicant has two years from the date of the denial to apply to the Tribunal to dispute the respondent’s decision. The respondent submits that the denials are clear and unequivocal and that applicant has failed to meet the two-year limitation period to file an application.

10The applicant characterized the respondent’s denials as improper but does not provide any reasons to support this assertion. Instead, he submits that the limitation period should be extended pursuant to section 7 of the Licence Appeal Tribunal Act, 1999 (the “LAT Act”), to allow his application. He submits the four factors outlined in Manuel v. Ontario (Registrar, Motor Vehicle Dealers Act)¹ weigh in favour of an extension.

11The respondent submits that section 7 of the LAT Act does not apply to disputes under the Schedule pursuant to 18-001196/AABS v. Certas (“18-1196”)². It further submits that, if section 7 of the LAT Act apples, the four factors weigh in its favour.

12I have reviewed the submissions and evidence and I find that the application was made more than two years following the denials. Further, I find that the LAT Act applies to this dispute and that the four factors weigh in the respondent’s favour.

NOTICE

13The limitation clock begins once the applicant receives proper notice of the denial. The notice must clearly and unequivocally deny the benefit, provide the medical and any other reasons for the decision, and must include information on the applicant’s right to dispute the decision.

14I find the respondent’s denials are proper and that they start the limitation period. While the applicant refers to the respondent’s denials as improper, he made no submissions or led no evidence to explain how or why the denials are improper. I see no obvious evidence to show that the denials are improper. If an applicant believes the denials are improper, the applicant must state so and the reasons why.

15Further, the applicant incorrectly implies that a letter dated March 28, 2017 restarted the limitation clock. The applicant submits that a letter denies the medical benefits in dispute and, as a result, the limitation deadline is March 28, 2019. I disagree. As noted by the respondent, the letter is not addressed to the applicant, contrary to his submissions. The letter, which refers to the applicant as the insured person and cites August 10, 2016 as the date of loss, is addressed to a different person at a different address. I struggle to see how a letter that is addressed to a different person at an address which is different from the applicant’s, could constitute a clear and unequivocal denial. On the other hand, the respondent provided the denials, addressed to the applicant, and dated August 31, 2016, October 18, 2016, and January 25, 2017. Even if I were to accept that the letter was intended for the applicant, the letter expressly notes that the respondent is maintaining its denials, obviously indicating that there were previous denials which would have started the limitation clock earlier.

JURISDICTION

16The respondent submits that the Tribunal does not have jurisdiction to invoke section 7 of the LAT Act with respect to a dispute under the Schedule. It relies on the reasoning in 18-1196. The applicant disagrees and submits that S.S. v. Certas Home and Auto Insurance Company (“S.S.”)³ properly found that the Tribunal does have such jurisdiction.

17I agree with the applicant and the reasoning in S.S., and find that the Tribunal has jurisdiction to invoke section 7 of the LAT Act. As noted in S.S., the limitation prescribed by section 56 of the Schedule was enacted under the Insurance Act and the filing of a LAT application is a notice that will require a hearing, unless the parties, by their own conduct, do not require one⁴.

SECTION 7 OF THE LAT ACT

18Section 7 of the LAT Act provides that any limitation period fixed by or under any Act may be extended to permit the filing of an Application. Such an extension of the limitation period is contingent on there being reasonable grounds for applying it. The factors to consider when determining whether to extend the limitation period are explained in Manuel. The factors are: length of delay, a bona fide intention to appeal within the appeal period, the prejudice to the other side, and the merits of the appeal.

Length of delay

19I find the length of delay in filing weighs in favour of the respondent because the applicant provides no basis, other than inadvertence, for filing the Application more than six months following the expiration of the earliest limitation period. The first denial was made on August 31, 2016 and this application was filed on March 8, 2019. The most recent denial occurred on January 25, 2017; however, having two of five issues with a relatively shorter delay of about six weeks fails to tip the scales in favour of the applicant, considering some of the other benefits in dispute are four to six months beyond the expiration of the limitation period.

Bona Fide Intention to Appeal

20I find no evidence of a bona fide intention to dispute the denials within the appeal period. The applicant’s claims that he was attending treatment and gathering documents to show the merits of his claim are baseless. The applicant claims the treatment records from Dr. V. Perelman are indicative of his efforts; however, the records only start on February 13, 2019, which is after all the limitation periods expired. Likewise, the evidence shows that almost all the applicant’s requests for records from his treating health practitioners were made following the expiration of the limitation periods. Lastly, as submitted by the respondent, there is no evidence of any attempt to file an appeal within the limitation period – there is no record the applicant provided instructions to file an appeal, attempted to file an appeal, or communicate with the respondent suggesting a dispute.

The Prejudice to the Other Party

21I find that the respondent has been prejudiced by the delay. Not only was the application filed beyond the limitation period, the applicant’s relevant evidence was also submitted after the limitation period expired. This has prejudiced the respondent in that its independent medical information is untimely relative to the new evidence relied on by the applicant.

22I reject the respondent’s claim that it has been impeded in assessing the applicant during the relevant period of the claim because it conducted IEs in January 2017. However, I note that if this matter were to proceed to be heard on its merits, the respondent would be prejudiced by the introduction of new medical evidence by the applicant. The introduction of new evidence would likely require another opinion from the IE assessors considering the time passed since the IEs, the submission of new medical information, and the respondent’s ongoing obligation to adjust the claim.

The Merits of the Appeal

23I find the applicant’s appeal has some merit but this finding on its own, with little support from the other factors, does not entitle the applicant to proceed with his appeal.

24I find some merit in the appeal in that medical records show that the applicant regularly complained of ongoing back pain to his family physician and an inability to work during the appeal period. The complaints prompted his family physician to refer him to Dr. K. Prutis, physiatrist, for an examination on January 9, 2018. That examination led to a referral for MRIs and, in April 2018, a diagnosis of an aggravation of degenerative changes in his cervical and lumbar spine, resulting in chronic neck and back pain. The applicant also submits an orthopaedic report by Dr. K. Fern dated April 19, 2017, which finds the applicant substantially unable to return to his pre-injury employment at the time of the examination. Lastly, the applicant was removed from the MIG in July 2019.

25The merit is partially undermined by the other evidence before me, namely, the disability certificate completed by Dr. R. Atwar, dated September 16, 2016 which notes the anticipated disability duration is only 9-12 weeks, which would fall around or before the respondent’s denial of benefits⁵. As well, the January 13, 2017 IE reports of Dr. J. Aguste, orthopaedic surgeon, and Dr. P. Kanagaratnam, psychologist, find the applicant does not suffer a substantial inability to perform the essential tasks of his employment.

26I agree with the respondent and find that the merit of an appeal, on its own and without favourable findings from the remaining Manuel factors, is not enough to extend the limitation period when considering the analysis of the other factors. As submitted by the respondent, virtually every limitation defence could be defeated because a dispute reasonably exists between the parties. Permitting the extension of a deadline to appeal could conceivably lead to a scenario where claimants, upon receiving evidence in support of their claim for further benefits, may sleep on that evidence until the limitation period expires and the IE reports are stale.

CONCLUSION

27The respondent denied the applicant’s entitlement to IRBs and medical benefits and the applicant failed to file an application with the Tribunal within two years of the denials. The application was filed between six weeks to six months passed the expiration of the applicable limitation deadlines.

28I choose not to invoke section 7 of the LAT Act and extend the applicant’s deadline to file an application because my analysis using the four Manuel factors weighs in favour of the respondent: the length of delay is as long as six months past the deadline, there is no evidence the applicant intended to appeal the decisions within the limitation period, his claim relies on evidence submitted beyond the limitation period and more than two years following the IEs, and the merit of the applicant’s claim fails to outweigh the other three factors to provide reasonable grounds to extend the limitation deadline.

29Pursuant to section 56 of the Schedule, I find the applicant is statute-barred form proceeding with his application and, as a result, the application is dismissed.

Footnotes

1. 12012 ONSC 1492
2. 218-001196 September 5, 2019
3. 32018 CanLII 141018 (ON LAT)
4. 4ibid
5. 5The disability certificate was amended and the parties disagree as to when or who amended it. In any event, this issue does not impact my decision.