Jones v. Aviva Insurance Canada, 2020 CanLII 80317

Citation: Jones vs. Aviva Insurance Canada, 2020 ONLAT 19-013768/AABS

Released Date: 10/01/2020

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:

Debra Jones

Applicant

and

Aviva Insurance Canada

Respondent

PRELIMINARY ISSUE DECISION

PANEL:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Peter B. Cozzi

Counsel

For the Respondent:

Danielle Ralph

Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant (“D.J.”) was involved in an automobile accident on November 14, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

2The respondent (“Aviva”) denied D.J. certain benefits and on November 25, 2019, D.J. applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for a resolution of the dispute.

3On March 26, 2020, the parties attended a case conference held by the Tribunal. D.J. sought to add an issue to the dispute, namely whether she is entitled to a non-earner benefit (“NEB”) in the amount of $185.00 per week from December 13, 2017 until August 21, 2019.¹ Aviva raised a preliminary issue that may dispose of the application. This hearing considers that preliminary issue.

PRELIMINARY ISSUE TO BE DECIDED

4I am to decide the following issue:

i. Is the applicant barred from proceeding with her dispute for non-earner benefits pursuant to section 56 of the Schedule?

RESULT

5Section 56 of the Schedule does not bar D.J. from proceeding with her application.

ANALYSIS

6On March 24, 2020, 126 weeks after the date of the accident, D.J. submitted a Disability Certificate (OCF-3) stating she suffered a complete inability to carry on a normal life, which she submits would make her eligible for a NEB.² Before March 26, 2020, D.J. had submitted no documentation in support of a NEB claim and had indicated no intention to do so.

7Aviva submits that D.J. failed to establish eligibility for a NEB within the time limit prescribed in the Schedule and should be barred from proceeding with her claim. It submits that the two year limit for commencing an application with the Tribunal pursuant to s. 56 of the Schedule commenced on December 22, 2017, when it issued a clear and unequivocal denial of her entitlement to a NEB. D.J. only submitted an OCF-3 stating she met the test for eligibility for a NEB on March 26, 2020, more than two years after the date of the accident.

8D.J. submits that Aviva has never issued a denial to pay her a NEB. This is because prior to the March 26, 2020 case conference when she first disputed entitlement to the benefit, she never submitted a claim capable of being denied.

9D.J. submits that her cause of action accrued on August 21, 2019, the date she could have first discovered entitlement to a NEB. D.J. argues that the Ontario Court of Appeal’s decision in Tomec v. Economical Mutual Insurance Company³ applies: the limitation period in s. 56 of the Schedule is subject to the principle of discoverability and does not commence until a benefit is both claimed and properly refused.

10In correspondence dated December 22, 2017, December 29, 2017, and March 15, 2018, Aviva notified D.J. that she was not entitled to a NEB based on the medical evidence available at that time. D.J. submits that these statements were “blanket denials” of her entitlement to a NEB. She relies on the decision of Machaj v. RBC General Insurance⁴ for her position that Aviva should not be allowed to rely on those denials to trigger the limitation period. In D.J.’s submission, these denials merely stated that D.J. generally lacked status to claim a NEB and they do not properly attract the commencement of a limitation period.

11In principle, I agree. The December 22, 2017 “denial” is not capable of triggering the limitation period because it did not relate to a specific claim for a benefit; indeed, no claim for that benefit existed at that time.

12Aviva argues that the discoverability principle articulated in Tomec is inapplicable to this case because the Schedule expressly bars claims for a NEB outside of 104 weeks after the accident. I will elaborate on this point later.

13I agree with D.J. that there is no denial of her NEB claim to trigger the commencement of the limitation period under s. 56. Neither the December 22, 2017 explanation of benefits nor those sent on December 29, 2017 or March 15, 2018 constitute a clear and unequivocal denial of the benefit. For the two year limitation period under s. 56 to commence, an insurer must deny a claimed benefit; in other words, an insurer’s denial of a benefit must relate to an existing claim. If an insurer could trigger a limitation period prior to a claim being made, it could unilaterally prevent valid claims from proceeding. This would be an absurd result.

14In her written submissions on the preliminary issue, D.J. submits that she is entitled to receive a NEB from August 21, 2019. However, at the case conference, she agreed that the issue in dispute was entitlement to a NEB from December 13, 2017 to August 21, 2019. Redefining the issue at this stage of the proceeding is prejudicial, Aviva submits, as it leaves it only with its reply to meet the case against it.

15In addition, Aviva submits that D.J. did not disclose the documents she relies upon to support her claim for a NEB by the April 24, 2020 deadline in Adjudicator Chakravarti’s case conference order. Those documents are an “Amended OCF-3 dated – March 24, 2020” and its appendix - an undated letter from Dr. Virani addressing clinical testing conducted on August 21, 2019 and a September 11, 2019 “Progress Report”, which Aviva submits is undisclosed. D.J. disclosed the new documents in an “Amended Document Brief” dated June 9, 2020 which Aviva submits it received on June 10, 2020. D.J. did not bring a motion to have the deadline for exchange of documents extended.

16Aviva asks me to determine that D.J.’s claim for a NEB starting August 21, 2019 is not properly an issue in dispute and to exclude the improperly disclosed documents from evidence. However, it is unnecessary for me to consider whether the issue D.J. raises is properly in dispute or whether the documents in question are properly in evidence. I have only been asked to determine whether s. 56 of the Schedule operates to bar this proceeding. Since I have determined that Aviva did not issue a proper denial capable of triggering the limitation period, the procedural bar in s. 56 is not engaged. This ends the inquiry.

17I will now briefly return to the issue I identified in paragraph 12 above, namely Aviva’s submission that certain provisions of the Schedule other than s. 56 (specifically sections 12 and 36) bar D.J. from claiming a NEB. It may be the case that D.J.’s claim for a NEB fails pursuant to these provisions. However, that is an issue properly adjudicated in the context of a substantive issue hearing, and it is one that I have not been asked to determine. The preliminary issue Aviva raised is whether s. 56 of the Schedule bars D.J. from proceeding. It does not.

ORDER

18The application may proceed to a hearing on the substantive issue.

Footnotes

1. 1Respondent’s Submissions, Tab 2: Case Conference Report dated March 27, 2020.
2. 2Respondent’s Submissions, Tab 10: Disability Certificate dated March 26, 2020.
3. 32019 ONCA 882.
4. 42016 ONCA 257 at para. 6.```