Released Date: 09/17/2020
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:
Mariane Aquino
Applicant
and
Aviva Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR: Sandeep Johal
APPEARANCES:
Paralegal for the Applicant: Elvis Viskovic
Counsel for the Respondent: Mohamed Hashim
Heard: By way of written submissions
OVERVIEW
1The applicant was injured in an automobile accident on October 9, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2The applicant was a 15-year old minor at the time of the accident. The Application for Accident Benefits (“OCF-1”) was signed by her mother. The applicant applied for medical benefits and payment for the costs of examination assessments that were denied by the respondent. The applicant disagreed with these denials and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
3The respondent raised a preliminary limitation issue at the case conference with respect to 7 of the issues in dispute as they are time-barred because they were not disputed within the prescribed 2-year limitation period. As a result, this written preliminary issue hearing was scheduled.
4The case conference order was released to the parties on February 10, 2020 and lists 13 issues in dispute in total including interest on any overdue payment of benefits and an award.
5With respect to the preliminary issue in dispute, the last denial was on February 7, 2017 and the Tribunal application to dispute the denials was filed on June 18, 2019.
6The applicant turned 18-years old on January 17, 2018 and filed an application to dispute the respondent’s denials to the Tribunal within two years of her turning 18-years old.
PRELIMINARY ISSUE
7The preliminary issue is whether the applicant is statute barred by virtue of s. 56 of the Schedule from disputing the following treatment plans as they were not disputed within the two year limitation period:
Application Issue
Denial Letter
Issue #3: Exercise Therapy
Submitted on March 30, 2016 for $2,344.67
July 22, 2016
Issue #4: Exercise Therapy
Submitted on October 16, 2015 for $2,344.64
November 3, 2015
Issue #6: Assistive Devices
Submitted on April 13, 2016 for $5,601.37
January 5, 2017
Issue #7: Activities of Daily Living Assessment
Submitted on February 10, 2016 for $1,638.50
January 5, 2017
Issue #8: Neurological Assessment
Submitted on February 10, 2016 for $2,486.00
February 7, 2017
Issue #9: Psychological Assessment
Submitted on March 17, 2016 for $2,486.00
January 5, 2017
Issue #10: Orthopaedic Assessment
Submitted on February 10, 2016 for $2,486.00
January 5, 2017
RESULT
8The applicant’s claim is statute-barred and the applicant has not satisfied her onus that the justice of the case warrants an extension of the limitation period under s. 7 of the Licence Appeal Tribunal Act.2
ANALYSIS
9Section 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.
10The respondent submits that s.280(4) of the Insurance Act,3 makes it clear that disputes pertaining to accident benefits shall be resolved in accordance with the Schedule and makes no mention of any other provision or Act (emphasis in original).
11The respondent further submits that the Schedule provides the complete set of parameters when disputing accident benefits and the applicant filed her application beyond the two-year limitation period as prescribed by s. 56, and accordingly the Tribunal should dismiss the applicant’s claim.
12In the present case, the respondent’s position is that the most recent denial is dated February 7, 2017 and the applicant’s application to the Tribunal is dated June 18, 2019 which is more than two years and as a result, the applicant is statute-barred from disputing the denials.
13The applicant takes the position is that she was a minor at the time of the denials and in accordance with s.6 of the Limitations Act4 the limitation period does not apply because she was a minor and not represented by a litigation guardian in relation to the claim.
14The applicant further relies upon the Tribunal case of 17-003732 v. Royal and Sun Alliance5 in support of her position that the limitation period does not begin to run on minors who were not represented by a litigation guardian and the following passages from 17-003732 v. Royal and Sun Alliance:
[22] While her mother was a “legal guardian” and co-signed the OCF-1 and Authorization for legal representation, in my view, filling out an OCF-1 and applying for benefits is merely a parent taking the required steps to obtain benefits for the child. Further, filing an application disputing accident benefits is not the same as issuing a statement of claim. For example, there are many sections in the Schedule that provide greater time periods for minors to apply for certain benefits. Therefore, why should minors not be accorded the same flexibility when it comes to disputing entitlement to those benefits.
[23] The purpose of the Limitations Act is to protect minors who are not capable of making decisions and appreciating the consequences of their decisions…
[24] In my view, minors are especially vulnerable in cases involving accident benefits and could be taken advantage of. The purpose of the Limitations Act and the necessity for court approval of any settlements involving minors is for their protection.
15In reply, the respondent submits that importing s. 6 of the Limitations Act into the Schedule would be an error of law as the Schedule represents the complete code to dispute accident benefits and s. 6 of the Limitations Act cannot be used to override the prescribed limitation period found at s.56 of the Schedule.
16The respondent further relies upon the Tribunal case of M.N. v. Aviva General Insurance Company6 in support of its position that an adult standing in for a minor when filing an OCF-1 (Application for Accident Benefits) means that the minor’s interests are protected and therefore the signing adult is liable for ensuring an application to the Tribunal is filed within the limitation period.7
17In my view, the Limitations Act does not apply in a Tribunal setting and with all due respect to Adjudicator Hines in 17-003732 v. Royal and Sun Alliance, that decision does not take into account s. 2 of the Limitations Act which states as follows:
2(1) This Act applies to claims pursued in court proceedings… (emphasis added).
1817-003732 v. Royal and Sun Alliance did not discuss whether the phrase “claims pursued in court proceedings” from s. 2 of the Limitations Act precludes the Tribunal.
19In my view and based upon s. 2 of the Limitations Act, as well as Tribunal and Superior Court jurisprudence,8 I find that the Limitations Act does not apply to the Tribunal and does not assist in the present case for the applicant to extend the two-year limitation period to dispute a denied benefit.
20The applicant further relies upon the Court of Appeal decision in Tomec v Economical Mutual Insurance Company,9 in support of her position that a hard limitation period should not apply in the present case. The three rationales in support of finding of a hard limitation period are to (i) foster certainty, (ii) are intended to help prevent evidence from going stale and (iii) encourage plaintiffs to be diligent in pursuing their claims.10
21According to the applicant, by allowing minors to dispute claims after two years in court proceedings but excluding minors the same right in a Tribunal setting does not foster certainty but rather confusion.
22With respect to preventing evidence from going stale, the applicant submits there is no prejudice to the respondent as it has assessed the applicant via s. 44 insurer examinations and with respect to the third rationale for limitation periods, which is to encourage an applicant to be diligent in pursuing their claim. The applicant submits it is unreasonable to hold a minor to a standard of due diligence.
23Despite the Tomec submissions from the applicant with respect to a hard limitation period, I do not find that case to be in support of her position. In that case, the court found the applicant could not have discovered her claim to the enhanced level of attendant care benefits and housekeeping and home maintenance benefits until she was found to be catastrophically impaired. Therefore, discoverability applied to her claim.
24That is not the situation in the present case. There is no suggestion that the applicant was prematurely denied certain benefits before she even knew she was entitled to them, thereby subjecting her claim to discoverability.
25The applicant essentially asking me to import the requirements of the Limitations Act into the Schedule because it is unreasonable to expect a minor to seek and instruct legal counsel to commence a dispute of her denied benefits until she turned 18 years old.
26In my view, the Tribunal derives its power and authority from statute. Similarly, the Tribunal is bound by the language of a statute, such as s. 2 of the Limitations Act. Furthermore, I have not been pointed to any evidence, any section of the Schedule or any other Act that would allow me to import the Limitation Act’s requirements regarding minors into the Schedule.
27However, the applicant does submit that the Tribunal has recognized and exercised s. 7 of the LAT Act when it is warranted and in the interests of justice to extend the limitation period. The applicant relies upon the case of J.V. v. Economical Insurance Company,11 in support of her position. In J.V. it was held that there are four factors to be looked at in considering an extension of the limitation period under s. 7 of the LAT Act: (1) the existence of a bona fide intention to appeal within the appeal period; (2) the length of the delay; (3) prejudice to the other party; and (4) the merits of the appeal.
28All four factors do not need to be satisfied; however, after a review and balancing of all four, an extension should be granted if the justice of the case requires it.
29In the present case the applicant submits that she disputed the denial of the benefits upon turning 18 years old as she was then able to provide her own instructions to her legal counsel.
30With respect to the length of the delay, the applicant submits again that she filed her appeal within two years of turning 18 years old.
31The applicant submits there is no prejudice to the respondent as it has conducted s. 44 insurer examinations on all benefits that are in dispute.
32With respect to the fourth factor, the merits of the case, the applicant submits that her application has merit and should be decided on that basis.
33The respondent submits the Tribunal does not have jurisdiction to invoke s. 7 of the LAT Act and relies upon the Tribunal case of 18-001196 v. Certas Home and Auto Insurance Company.12 I am well aware of 18-1196 and there have been numerous cases subsequent to that decision that have found that the Tribunal does have jurisdiction under s. 7 of the LAT Act to extend the limitation period if the justice of the case supports it.
34In my view, I am not bound by another member’s decision and 18-1196 is currently under appeal to the Divisional Court and for the purposes of this case, I choose to follow the subsequent body of the jurisprudence that the Tribunal does have the jurisdiction to consider s. 7 of the LAT Act until there is an ultimate direction from the court on its applicability.
35In any event, the onus is on the applicant to satisfy me in light of the four factors as set out above that the justice of the case warrants an extension of the limitation period.
36However, in my view, the applicant has not done so. I struggle to find even one of the factors in favour of the applicant. Even though all four do not need to be satisfied, there must be a balancing act of all of the factors in arriving at a decision on whether the justice of the case requires it.
The existence of a bona fide intention to appeal within the appeal period.
37The applicant submits she disputed the denials upon turning 18 and once she was able to provide instructions.
38The respondent submits the applicant has not shown a bona fide intention to appeal within the appeal period.
39I would agree with the respondent. The applicant’s submission is that she appealed within two years of turning 18 years old; however, the factor to be satisfied is to show a bona fide intention to appeal within the appeal period (emphasis added). That has not been done and as a result, I find that the applicant has not satisfied this first factor.
The length of the delay
40The applicant’s position is the same as the first factor, that she submitted an application to dispute the denial within two years of turning 18 years old and able to instruct counsel.
41The respondent submits that applicant has not explained the length of delay in bringing an application to the Tribunal.
42I agree with the respondent; the applicant has not provided any submissions on the length of the delay. As a result, I find this factor does not weigh in favour of the applicant.
Prejudice to the other party
43The applicant submits there is no prejudice to the respondent as it has had the opportunity to assess the applicant through s. 44 insurer examinations.
44The respondent submits it is prejudiced because of perpetual uncertainty which is created by allowing further time and delay to proceed.
45In my view, the delay in filing the application is still four months from the most recent denial and over twelve months from the first denial. I do not find the delays to be insignificant. As a result, I find that there is prejudice to the respondent.
Merits of the appeal
46The applicant submits her claim has merit; however, there are no submissions or evidence in support. A detailed analysis is not required to satisfy this factor; however, there must be evidence, even cursory evidence of her injuries and whether she may have some merit in her claim. Without such, I am unable to find this factor in support of the applicant.
47All four factors do not need to be in support of the applicant; however, an analysis and balancing of the factors is required and after a consideration of all the factors, I find that the applicant has not persuaded me on a balance of probabilities that she had a bona fide intention to appeal within the appeal period and she has not explained the length of the delay. I find there is some prejudice to the respondent and I have not been satisfied that her appeal may have merit. As a result, I find that the justice of the case does not warrant an extension of the limitation period.
ORDER
48The applicant’s claim to dispute the denied benefits was beyond the two-year limitation period under the Schedule and I find that under s. 7 of the LAT Act, the justice of the case does not warrant an extension of the limitation period.
Released: September 17, 2020
___________________________
Sandeep Johal
Adjudicator
Footnotes
- O. Reg. 34/10.
- S.O. 1999, c. 12, Sched. G. (“LAT Act”)
- RSO 1990 c l8.
- 2002, S.O. 2002, c. 24 Sched. B
- 2018 CanLII 39449 (ON LAT)
- 2019 CanLII 119731 (ON LAT) (“M.N.”)
- Ibid at para. 27.
- L.R. v. RSA Insurance, 2019 CanLII 76846 (ON LAT); J.V. v. Economical Insurance Co. 2018 CanLII 142935 (ON LAT); 17-005685 v. Economical Insurance Co. 2018 CanLII 112125 (ON LAT) and Letestu v. Ritlyn Investments 2016 ONSC 6540 at paras. 62-63.
- 2019 ONCA 882. (“Tomec”)
- Tomec at para. 53.
- 2018 CanLII 142935 (ON LAT) (“J.V.”)
- 2016 CanLII 153125 (ON LAT) (“18-1196”)```