Citation: Basi v. RSA Insurance, 2020 ONLAT 19-013296/AABS

Released Date: 10/13/2020

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:

Harpreet Basi

Applicant

and

RSA Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant:

Tania Lanteigne, Paralegal

For the Respondent:

Jennifer Sweitzer, Counsel

HEARD by Way of Submissions in Writing

REASONS FOR DECISION AND ORDER

OVERVIEW

1Harpreet Basi (“applicant”) was involved in an automobile accident on September 22, 2016 (“accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule¹ - Effective September 1, 2010 (the ''Schedule'').

2RSA Insurance (“respondent”) denied payment of non-earner benefits (“NEB”) and other benefits claimed by the applicant. The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3At the May 7, 2020 case conference, the Tribunal ordered that the preliminary issue below be heard in writing. A substantive issues hearing is scheduled for January 26, 27 and 28, 2021 to deal with the applicant’s claim to a non-earner benefit (“NEB”) and interest, subject to the outcome of this preliminary issue hearing. As confirmed in the case conference Order, the only remaining benefit in dispute is NEB plus interest.

PRELIMINARY ISSUE

4The preliminary issue to be decided is:

i. Whether the applicant (insured) is statute barred pursuant to s. 56 of the Schedule to proceed with his application to the Tribunal on the substantive issues due to the two year post-denial limitation period for application to the Tribunal?

RESULT

5The applicant’s application is statute-barred. The application is dismissed.

LAW

6Section 56 of the Schedule provides that an application before the Tribunal in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed. The onus is on the respondent to show that the limitation period has expired.

7Section 7 of the Licence Appeal Tribunal Act, 1999² (LATA) allows the Tribunal to extend a limitation period under certain circumstances. In considering whether to exercise its discretion to extend the limitation period the Tribunal must consider the following four factors³:

a. A bona fide intention to appeal within the limitation period;

b. The length of delay;

c. Prejudice to the other party; and

d. Merits of the appeal.

8The onus is on the applicant to establish reasonable grounds for an extension under s. 7 of LATA.

Respondent’s position

9The respondent submits that the application contravenes s. 56 of the Schedule because it was commenced more than two years after the respondent’s refusal to pay the amounts claimed. The respondent submits that its denial was clear and unequivocal and it would be prejudiced if the limitation period was extended.

Applicant’s position

10The applicant submits that he has serious injuries, meets the qualifications to receive NEB and has complied with all requests made by the respondent in good faith and to the best of his ability and has reasonable grounds for his application. In the alternative, if the Tribunal should rule that the applicant is not in compliance, he requests that the Tribunal order the respondent to schedule an insurer’s examination (“IE”) so that the applicant can continue with his application.

ANALYSIS

Is the Applicant’s Tribunal Application Statute-Barred?

11For the following reasons, I find that the respondent has met its burden of proof to establish that the limitation period expired in relation to the NEB now claimed in the applicant’s application.

12The applicant sent to respondent an OCF-1, application for accident benefits dated October 12, 2016 through his legal representative. Following the applicant’s attendance at two IEs, in an explanation of benefits (EOB) dated August 2, 2017 the respondent told the applicant that the respondent had determined he was not eligible for NEB. The reasons for the denial of the NEB were set out in the EOB and were clear, stating “We received the Sec. 44 Insurer’s Psychological Assessment Report dated July 19, 2017. Dr. Robinson indicated that from a psychological perspective, you do not suffer a complete inability to carry on a normal life. Therefore, you are not eligible for the Non-Earner Benefit. Please note that a previously completed Sec. 44 Insurer’s General Practitioner Report also indicated that you do not meet this test of disability from a physical perspective.” The EOB included a warning that the applicant had two years from the date of the respondent’s refusal to pay to file an application with the Tribunal.

13I find that the respondent’s August 2, 2017 written denial was clear, unequivocal, not confusing or ambiguous. The applicant’s legal representative was copied with the EOB. After unsuccessfully attempting to fax the EOB, the respondent sent it by regular mail to the applicant at his last known address and to the applicant’s legal representative by Purolator. Section 62(2) of the Schedule provides that a document may be delivered to a person by leaving a copy of the document with the authorized representative or by ordinary mail to the person’s last known address. The applicant did not make any submissions or put forward any evidence to the contrary. Based on the evidence of service filed by the respondent, I find that the EOB was served on applicant’s legal representative on August 3, 2017.

14The applicant filed an application with the Tribunal dated November 27, 2019 in which it is acknowledged that NEB was denied on January 16, 2017. At the case conference, the respondent took the position that the NEB issue was beyond the two year limitation period and the Tribunal ordered this written hearing.

15The applicant argues that he has serious injuries, meets the qualifications to receive NEB and has complied with all requests made by the respondent in good faith and to the best of his ability and has reasonable grounds for his application. Much of the applicant’s submissions and evidence filed related to the applicant’s medical condition. This is not persuasive given that the issue here is the timeliness, or lack of timeliness, of the application to the Tribunal.

16I find that the applicant’s application was not filed within two years after the denial by the respondent and therefore his application for NEB is barred under s. 56 of the Schedule. The denial was made by EOB dated August 2, 2017, served August 3, 2017. The applicant’s application to the Tribunal was made November 29, 2019, some four months after the limitation period ended.

17The applicant also submits, in the alternative, that if the Tribunal should rule that the applicant is not in compliance, he requests that the Tribunal order the respondent to schedule an insurer’s examination (“IE”) so that the applicant can continue with his application. Although not clearly stated, I take this to be a request by the applicant that the Tribunal relieve against the limitation period under s. 7 of the Schedule or on the basis of procedural fairness.

18I find that the applicant has not met his onus to establish reasonable grounds for an extension under s. 7 of LATA. I decline to exercise my discretion to extend the deadline to appeal the NEB.

19The applicant’s evidence fails to show a bona fide or good faith intention to appeal within the appeal period. The appeal period ended August 3, 2019. The applicant had the same legal representation since October 12, 2016. The applicant did not point to any evidence which would establish a good faith intention to appeal the NEB denial prior to August 3, 2019.

20The applicant did not seek to claim NEB in his application to the Tribunal until November 29, 2019, almost four months after the limitation period had ended. Almost four months delay is excessive.

21Given this length of time, there would be prejudice to the respondent, not now curable, as the respondent has been denied the opportunity to obtain evidence as to the applicant’s medical state some years earlier.

22The applicant has failed to establish that his application has merit. The applicant relies on the OCF-3, disability certificate, completed by Ginni Bajaj, physiotherapist, dated September 24, 2016 which indicates “yes” in answer to the question “Does the applicant suffer a complete inability to carry on a normal life? (ie. Has the applicant sustain impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident?) However, Ginni Bajaj offers no explanation as required by the disability certificate. The injuries as described by Ginni Bajaj, whipash, sprain and strain type injuries, pain in knee, psychological issues and dizziness and giddiness, are unlikely to meet the test for NEB. The reports of Drs. Singh and Dr. Guerra, applicant’s physicians, even considered together with the other medical records filed by the applicant, are unlikely to meet the test for NEB given that both appear insufficient to establish that the applicant suffers a complete inability to carry on a normal life and given the IE reports of the respondent’s assessors.

ORDER

23The applicant’s application is statute-barred and is dismissed.

Footnotes

1. 1O.Reg. 34/10
2. 2S.O. 1999, c. 12, Sched. G.
3. 3Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (Div. Ct.)