Tribunals Ontario Safety, Licensing Appeals and Standards Division Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca
Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca
RECONSIDERATION DECISION
Before: Jesse A. Boyce, Adjudicator
File: 18-008774/AABS
Case Name: N.V. and Allstate Insurance Company of Canada
Written Submissions by:
For the Applicant: Ryan Naimark, Nergiz Sinjari
For the Respondent: Sophia Chaudri
OVERVIEW
1This request for reconsideration was filed by the applicant, N.V. It arises out of a preliminary issue decision dated January 3, 2020, in which I found that N.V. was statute-barred from proceeding with his application for income replacement benefits (“IRB”) under s. 56 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
2In the decision, I made a number of findings. First, I determined that Allstate’s denial of IRB in December 2015 was a clear and unequivocal denial, triggering the two-year limitation period. Second, I found that relying on N.V.’s return to work was a valid “other reason” for terminating his IRB under s. 37. Third, I found that N.V. filed his appeal of Allstate’s denial 10 months after the expiration of the two-year limitation period without explanation. Fourth, I declined to exercise the Tribunal’s discretion under s. 7 of the Licence Appeal Tribunal Act to extend the missed limitation period because N.V. did not provide substantive submissions on same. Accordingly, I found that N.V. was statute-barred from proceeding with his application under s. 56 due to his failure to appeal Allstate’s valid denial within the two-year limitation period.
3N.V. submits that I made errors of law and fact in my application of s. 37 that would have resulted in a different outcome had the errors not been made. On reconsideration, he seeks a determination that my decision at the preliminary stage be varied to reflect that Allstate’s denial was improper as it was not in accordance with the Schedule and therefore, the limitation period was not triggered, and he is not statute-barred from proceeding with his application for IRB.
4Pursuant to Rule 18 of the Tribunal’s Common Rules of Practice and Procedure, I have been delegated responsibility to reconsider this matter.
RESULT
5N.V.’s request for reconsideration is dismissed.
ANALYSIS
6The grounds for a request for reconsideration are contained in Rule 18.2 of the Tribunal’s Common Rules. A request for reconsideration will not be granted unless one of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
7As noted, the basis for N.V.’s reconsideration request falls under Rule 18.2(b). While the request focuses on s. 37 of the Schedule generally, N.V. asserts the following: that I erred in determining that Allstate’s notice was valid and in accordance with the Schedule; that I erred in my interpretation of s. 37(4) in determining that Allstate was not required to provide a medical reason in its determination to terminate his IRB; that I erred in determining that he was not entitled to IRB for having returned to work and further erred in stating that returning to work was a valid “other” reason for terminating the IRB; and, that I erred in applying a narrow interpretation of the Schedule and ignored the remedial and consumer protection purposes of same.
8In response, Allstate submits that I did not make an error of law or fact such that the Tribunal would likely have reached a different result. Allstate submits that I was correct in my determination that its notice was valid and in accordance with the Schedule, and that I was correct in my interpretation of s. 37(4) in determining that Allstate was not required to provide a separate “medical reason” when terminating the IRB given that the denial was based on the fact that N.V. returned to work. Allstate further submits that I was correct in my determination that a return to work is a valid other reason for termination of an IRB and that my interpretation of the Schedule is consistent with the primary goal of ensuring the timely submission and resolution of claims for accident benefits.
9For the reasons below, I dismiss N.V.’s request for reconsideration and find there were no errors in my initial decision that would have changed the outcome.
Allstate’s notice was proper
10While the nuances of s. 37 form the basis of the request, on reconsideration, I find no evidence to vary my initial finding that Allstate’s notice of denial was clear, unequivocal and in line with the requirements of the Schedule. At para. 5 of the preliminary issue decision I state my reasons, which I find no basis to depart from here on reconsideration:
[5] Based on my review of Explanation of Benefits from December 2015, I find that Allstate’s denial was proper and in accordance with the Schedule’s requirements and the principals of Smith. Further, I find that the notices of refusal to pay benefits provided by Allstate contained very straightforward and clear language (including the December 30, 2015 date when N.V.’s IRB would terminate), was certainly directed towards an unsophisticated person (i.e., the language is simple, well-spaced, clearly states “Not Eligible,” and I also note N.V. had counsel when it was received), it outlined the dispute resolution process (i.e., the standard form outlining the options is attached), stated the relevant time limits that govern the process (i.e., the two-year warning notice is bolded and prominent) and provided a valid “other” reason for the denial (i.e., the notice literally states the IRB was being terminated because N.V. returned to work on December 2, 2015).
11On the face of the notice, N.V. knew the IRB was being terminated and the reason why. Contrary to N.V.’s claims, I again find there was more than enough information to challenge Allstate’s denial based on his return to work, that the notice triggered the two-year limitation period as a result and find no error.
N.V.’s return to work is a valid reason for IRB denial
12N.V. asserts that I erred in my interpretation of s. 37(4) when I found that Allstate was not required to provide a medical reason in its determination to terminate his IRB because the termination was based on N.V. returning to his pre-accident employment, which, in my view, constituted a perfectly valid “other reason”. Specifically, N.V. asserts that a plain reading of the legislation mandated Allstate to provide the “medical and any other reasons for its determination” when it decided that he was no longer entitled to the IRB. He submits that his return to pre-accident employment alone was not a valid reason for denial under the Schedule because it must be accompanied by a medical reason.
13At para. 6 of the preliminary issue decision, I addressed this argument and, on reconsideration, find no reason to depart from my reasons despite N.V.’s assertion that the “and” contained within the phrase “medical and any other reasons” in s. 37(4) is conjunctive and therefore Allstate was obligated to provide a medical component along with its “other reason”:
[6] In submissions, N.V. argues that the notice was unclear and did not provide medical and other reasons. In my view, terminating an IRB because an applicant returned to work is a perfectly valid “other” reason that does not require a medical component. N.V.’s return to work is not disputed. If N.V. could work and chose to return to work, he was no longer entitled to an IRB by his own actions. Allstate does not have to conjure or fabricate a medical reason to justify N.V.’s decision simply to satisfy Smith. Further, and to be frank, I am not sure how the notice could have been any clearer. Accordingly, I reject N.V.’s arguments that the notice was somehow equivocal or not directed to him as an unsophisticated person.
14In a similar vein, I agree with Allstate that s. 37(4) states that if an insurer determines that an insured is not entitled to a specified benefit on any one or more grounds set in s. 37(2) that it shall provide the “medical and any other reasons.” Section 37(2) provides for situations where the insured is not entitled to benefits that are not based on “medical” impairments, namely under (e), “the insured has resumed his or her pre-accident employment duties” or, (g), “the insured person is not entitled to the specified benefit for a reason unrelated to whether he or she has an impairment that entitled the insured person to receive benefit.” In these situations, as in N.V.’s, the reason for denial would not be a medical one. I agree that the use of the words “any one or more grounds” is a recognition that an insured may still be medically entitled to an IRB but has become disentitled for reasons unrelated to whether the insured person has an impairment that would entitle him to IRBs—such as returning to their pre-accident employment. I disagree that I erred in applying a narrow interpretation of the Schedule and ignored the remedial and consumer protection purposes of same where s. 37 provides such avenues.
15Further, I agree that N.V.’s strict interpretation of s. 37 obligating a medical reason in order to trigger the two-year limitation period is too narrow as it would effectively compel insurers to provide a medical reason where none exists or, as Allstate submits, when the reason for the denial is obvious from the “other reason.” One can imagine the ensuing disputes and bad faith allegations that would emanate from medical reasons that were fabricated by an insurer just to satisfy such a narrow reading of s. 37. Allstate submits, and I agree, that it is an absurd interpretation of the Schedule to require medical reasons to be given in a denial letter when the reason for the denial has nothing to do with medical reasons, such as N.V. returning to work. Accordingly, I find no error of law.
Sietzema, Tomec and N.V.’s return to work
16In any case and despite the technical arguments over s. 37, in Sietzema v. Economical Insurance, 2014 ONCA 111, the Court of Appeal found that a denial was valid if it gave the insured a clear notice of their rights to mediation, followed by arbitration, litigation or neutral evaluation if the applicant wished to dispute the refusal and a clear notice of the two-year limitation period. On review, and further to para. 5 of the decision, addressed above, I find Allstate’s notice was clear and unequivocal. Sietzema is also authority for the position that once a clear and unequivocal notice is given by the insurer cancelling the insured’s benefits, it is sufficient to trigger the limitation period, notwithstanding that the insurer gave legally incorrect reasons for cancelling the benefit. While I see no error in my original determination, even if Allstate’s notice was legally incorrect, I reject any assertion by N.V. that he was somehow not aware that the limitation period was running, as he was also represented by counsel.
17N.V. also relies on the Court of Appeal’s decision in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882, to argue that the hard limitation imposed here leads to an absurd result. I find Tomec is distinguishable and should not be used as a lifeline here, as suggested. N.V. has not been deemed catastrophically impaired and he received IRBs post-accident prior to returning to his employment, so it cannot be said that his IRB claim was pre-emptively denied prior to him discovering his entitlement, even if his condition declined thereafter.
18Finally, I agree with N.V. that returning to work does not automatically affect an insured’s entitlement to IRB. However, I disagree that it was an error of fact to find, at para. 6, that “N.V.’s return to work is not disputed. If N.V. could work and chose to return to work, he was no longer entitled to an IRB by his own actions.” This finding was made in the context of Allstate’s denial notice being based on N.V.’s return to work and not a determination on N.V.’s substantive entitlement to an IRB, as that issue was not before me. I regret that it may have caused confusion but find that it would not affect the outcome of my decision, especially so in the absence of submissions on the merits of his appeal under s. 7 of the Licence Appeal Tribunal Act.
CONCLUSION
19N.V.’s request for reconsideration is dismissed.
Released: August 21, 2020
Jesse A. Boyce, Adjudicator