Y.G. v. TD General Insurance Company, 2020 CanLII 69917

Y.G. vs. TD General Insurance Company, 2020 ONLAT 18-012431/AABS

Citation: Y.G. vs. TD General Insurance Company, 2020 ONLAT 18-012431/AABS

Released date: September 2, 2020

Tribunal File Number: 18-012431/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:

[Y.G.]

Applicant

and

TD General Insurance Company

Respondent

DECISION

PANEL:

Asad Ali Moten, Adjudicator

APPEARANCES:

For the Applicant:

Aline Avanessy, Counsel

For the Respondent:

Elisabeth D. Janse Van Rensburg, Counsel

HEARD:

By way of written submission

OVERVIEW

1The applicant was involved in an automobile accident on May 24, 2015. She sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (“Schedule”).

2At issue in this case is the preliminary question of whether the applicant is statute-barred from disputing the respondent’s denial of some of her entitlements to benefits. Specifically the question is whether the applicant commenced her application to this Tribunal within two years as required by the Schedule.

3The claimed benefits at issue are a treatment plan (OCF-18) submitted October 22, 2016; a cost of examination for psychological assessment submitted February 20, 2016; a cost of examination for orthopaedic assessment submitted February 20, 2016; and an additional examination for psychological assessment submitted February 20, 2016.

4The applicant is of the position that the claim was commenced within the required timelines. The respondent takes the contrary position; the applicant was out of time by the time she commenced the application.

ISSUES

5The preliminary issues to be decided are:

i. Is the applicant statute barred from pursuing her claims for medical benefits to the Tribunal due to the expiry of a limitation period, in accordance with section 56 of the Schedule?

RESULT

6I find that the applicant did not commence her application within the applicable limitation period, but I order that the applicable limitation period be extended and the applicant’s application continue.

BACKGROUND

7The applicant was involved in an accident on May 24, 2015. The car she was in was rear-ended. The applicant reported experiencing pain in her neck, shoulders, and back, along with headaches, as a result of the accident. She also reportedly experienced paresthesia and weakness in her neck and back. She was diagnosed with general anxiety disorder and somatic symptom disorder.

8The current application is not the applicant’s first time before the Tribunal. The applicant commenced her first application to the Tribunal in respect of this accident on November 15, 2016. The Tribunal dismissed the first application on April 20, 2017 on the basis that the applicant had not attended an insurer medical examination.

9At issue in this proceeding are four claimed benefits of the applicant.

10On February 20, 2016 the applicant submitted three claims: through her psychologist she submitted two claims for ‘assessment, mental health and addiction’ both in the amount of $2,404.24, and through her orthopaedic surgeon she submitted a claim for a total body assessment in the amount of $2,486.00. By letter dated March 1, 2016 the respondent denied all three claims. The respondent’s reason for the denial was that “there is insufficient medical documentation to persuade that the accident injuries fall outside of the [Minor Injury Guideline]” (“MIG”). The letter also advised the applicant that the respondent would arrange insurer medical examinations for the applicant.

11On October 22, 2016 the applicant, through her chiropractor, submitted a treatment and assessment plan for chiropractic care in the amount of $500.00. This treatment plan was denied by the respondent on November 3, 2016 on the basis that “there is insufficient medical documentation to persuade that the accident injuries fall outside of the MIG.” Again, as with the first letter, the respondent advised that it would be arranging an insurer examination.

ANALYSIS

i. Is the applicant out of time to commence her application?

12Section 56 of the Schedule provides that an application to this Tribunal to resolve a dispute of an insured person’s entitlement to benefits shall be commenced within two years after the insurer’s refusal to pay the amount claimed. Unlike limitation periods in the civil context, the doctrine of discoverability does not apply. A denial by an insurer triggers the limitation period for the insured.

13What, then, constitutes a denial? A denial must be in writing and be clear and unequivocal. The Supreme Court of Canada stated that a denial must (i) be straightforward; (ii) be in clear language; (iii) provide information about the different stages of the dispute resolution process, comprehensible by the lay person; and (iv) include information about relevant time limits.¹

14Having examined both the March 1, 2016 denial letter and the November 3, 2016 denial I conclude that the respondent’s denial of the applicant’s claims was carried out in a satisfactory manner. Both letters were clear that the respondent did not agree to pay for the claimed benefits, provided a one-page summary of the dispute resolution process, and included, in capital letters, a warning that the applicant has two years “from the date of [the] insurance company’s refusal to pay…to arbitrate or commence a lawsuit in court.” These denials are clear and unequivocal.

15I find that the applicant’s two-year limitation period began to run on March 1, 2016 for the claims denied on that date, and on November 3, 2016 for the claim denied then. The applicant submitted her second application to this Tribunal on December 12, 2018, outside of the applicable limitation periods.

16The applicant submits that her limitation period actually began to run on November 20, 2017, when the respondent sent a letter confirming that the applicant does not fall within the MIG. Presumably, the applicant makes this argument because as of that time her appeal of the respondent’s denials had more merit, given that the denials were predicated on her falling within the MIG. I disagree with this argument. A limitation period does not start to run when the strength of one’s appeal appears to exceed a certain threshold. The language of the Schedule is clear: it starts when the claimed benefit is denied.

17The applicant also argues that the fact that the respondent required insurer medical examinations to determine that the applicant fell outside the MIG means that the denials at issue were not “genuine ones” because they were pending these examinations. Again, I do not accept this submission. Insurers regularly deny claims but allow applicants to return with further information to substantiate their claims, either in the form of an insurer medical examination, or some other records.

18Therefore, the applicant is out of time to commence her application.

ii. Should the Tribunal exercise its discretion to extend the limitation period?

19Limitation periods play an important role in the administration of justice. They provide finality and certainty, ensure the evidence is maintained only for as long as it needs to be, and compel litigants to act in a timely fashion.² Despite the importance of limitation periods, decision-makers may retain the discretion to extend limitation periods.

20Section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c.12 Sch. G (the “Act”) allows the Tribunal to extend the time for giving a notice (including commencing an application) before or after the expiry of a limitation period where it is satisfied that there are reasonable grounds for applying for the extension of time. The Act, being legislation, prevails over the Schedule, being regulation, which provides for the two-year limitation period.³

21The appropriate test to be applied when considering whether to extend a limitation period includes four factors:

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

b. The length of the delay;

c. Prejudice to either party; and,

d. The merits of the appeal.⁴

22I find that the applicant did partially express to the respondent a bona fide intention to appeal the denial of her claims within the appeal period. On May 17, 2018 and October 30, 2018 the applicant’s representative advised the respondent that the applicant would commence another LAT application unless the respondent replied to the applicant’s requests. The evidence indicates that the respondent did not reply and the applicant commenced her application thereafter. While the above-noted communications fall outside of the appeal period for the March 1, 2016 denials, they do fall within the appeal period for the November 3, 2016 denial. In context, the chain of correspondence between the applicant and the respondent, as well as the applicant’s previous LAT application is evidence of her intention to appeal her denials within the relevant time periods.

23There are two lengths of delay to be considered: approximately 9.5 months in the case of the March 1, 2016 denials, and 1.5 months in the case of the November 3, 2016 denial. Neither length is egregious, particularly when considered against the backdrop of ongoing discussions between the parties. The insurer was still, during this period, approving some of the applicant’s claims. Further, the insurance makes no arguments with respect to why the length of delay is inexcusable. While the applicant could have begun an application to the Tribunal while in negotiations with the insurer, it is possible that the costs calculus or perceived risk to the negotiations inhibited this strategy.

24The question of prejudice in this case does not favour either party. On the one hand, the applicant, if denied the opportunity to bring her application, will be out of pocket several thousand dollars. The respondent, on the other hand, may be prejudiced by a lack of finality in this matter, particularly if the respondent destroyed records believing the matter to be at an end.

25Finally, the merits. The role of the Tribunal on this preliminary issue is not to determine who ultimately would succeed on a hearing of the merits. Such a determination would not even be possible on the limited evidentiary record available to the Tribunal. Rather, the Tribunal must consider whether the appeal has so little merit as to warrant denying the applicant of her opportunity to commence an application. I find that the applicant’s appeal does not have so little merit.

26There is evidence in the record before me to indicate that the applicant has, after attending medical insurer examinations, been found to have sustained more than minor injuries. Further, the respondent has sent at least one letter to the applicant confirming that she does not fall within the definition of minor injury. If this is the case, the applicant would fall outside of the MIG and her entitlement to the benefits claimed as reasonable and necessary would be a live question.

27In sum, I find that the applicant has met her onus in demonstrating that the limitation period for commencing her application should be extended. I exercise my discretion pursuant to section 7 of the Act and order that the proceeding as commenced should continue.

CONCLUSION

28For the reasons above, I find that the applicant did not commence her application within the applicable limitation period, but I order that the applicable limitation period be extended and the applicant’s application continue.

Footnotes

1. 1Smith v. Co-operators Insurance Co., 2002 SCC 30.
2. 2Haldenby v. Dominion of Canada General Insurance Co, 2000 CanLII 22702 (ONSC).
3. 317-007103 v. Unifund Assurance Company, 2019 CanLII 40291 (ONLAT).
4. 4Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492