Released Date: 10/09/2020
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:
Marina Landa
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant:
Marina Landa, Self-represented Applicant
For the Respondent:
Chris McCormack, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant (“M.L.”) was involved in an automobile accident on November 6, 2007 and sought benefits pursuant to Ontario Regulation 403/96: Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996.
2The respondent, The Dominion of Canada General Insurance Company (“The Dominion”) denied M.L. certain benefits.
3On October 23, 2019, M.L. applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for a resolution of the dispute. On April 3, 2020, she amended her application to add thirteen new issues to the dispute.
PRELIMINARY ISSUES TO BE DECIDED
4I am to decide the following issues:1
(i) Is the applicant barred from proceeding with her claim for the following issues because she failed to commence her application within two years after the respondent’s refusal to pay the amounts claimed?
(a) an income replacement benefit at the rate of $190.75 from August 11, 2008 to November 6, 2009;
(b) the following medical benefits:
$178.70 for prescription medications submitted in an OCF-6 dated February 12, 2009 and denied February 23, 2009;
$1,470.00 for physiotherapy in a treatment plan submitted September 11, 2017 and denied September 26, 2017;
$9,500.15 for physiotherapy and psychological services (chronic pain services) in a treatment plan submitted August 11, 2009 and denied August 25, 2009;
$4,187.86 for psychological services in a treatment plan submitted August 18, 2009 denied September 1, 2009;
$1,800.00 for physiotherapy and psychological services in a treatment plan submitted December 9, 2010 and denied December 31, 2010;
(c) $6,800.00 for housekeeping services for the period from July 22, 2008 to November 6, 2009 denied on July 15, 2008
(d) The cost of the following examinations:
$1,168.00 for an In-Home Assessment in a treatment plan submitted May 26, 2008 and denied June 11, 2008;
$1,234.56 for an In-Home Assessment in a treatment plan submitted September 15, 2008 and denied September 18, 2008;
$1,860.00 for a Neurological Assessment in a treatment plan submitted June 24, 2009 and denied June 29, 2009.
(ii) In the alternative, is the applicant barred from proceeding with the following claim because she failed to submit to an insurer’s examination (IE) under s. 44 of the Schedule:
(a) $4,187.86 for psychological treatment in a treatment plan submitted on August 18, 2009 and denied on September 1, 2009?
RESULT
5M.L. is barred from proceeding with her claim for the issues listed in paragraph 4(i) above because she failed to commence a proceeding within two years of The Dominion’s refusals to pay the amounts claimed.
6It is not necessary for me to consider whether M.L. is procedurally-barred for failing to submit to an IE under s. 44 of the Schedule.
ANALYSIS
Did The Dominion issue valid denials to trigger the limitation period?
7For the following reasons, I find that M.L. is barred from proceeding with her application on the disputed issues because she failed to commence her application with the Tribunal within the two year limitation period.2
The law
8Section 51 of the Schedule provides:
An application under subsection 280 (2) of the Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.
9The parties agree that a denial meeting the criteria set out by the Supreme Court of Canada in Smith v. Co-operators General Insurance Co.3 will trigger the commencement of the limitation period under the Schedule. The limitation period starts when an insurer gives a clear and unequivocal denial of a benefit that is accompanied by notice of the two-year period for commencing the dispute resolution process. The insurer must communicate the denial in clear and straightforward language directed to the unsophisticated person.
10A limitation period is triggered with the first valid refusal: see R.R. vs. State Farm Insurance Company at para. 13;4 K.K. vs. Coseco Insurance Company [“K.K.”] at para. 21.5 Subsequent denials, insurer requests for more information, and notices of Insurer’s Examinations (IEs) do not detract from a valid denial or re-start the limitation period: see K.K. at para. 18.
11As the Ontario Court of Appeal held in Sietzema v. Economical Mutual Insurance Company,6 even legally incorrect reasons for a denial will not prevent the commencement of the limitation period. Citing its earlier decision in Turner v. State Farm Mutual Automobile Insurance Co. (2005), the court in Sietzema noted at para. 13,
The purpose of the requirement to give reasons is to permit the insured to decide whether or not to challenge the cancellation. If the reasons given are legally wrong the insured will succeed in that challenge. Requiring that the reasons be legally correct goes beyond both the requirement in the relevant regulation, and the purpose of such a notice.
12A denial need not contain specific wording. It must simply communicate that the benefit is not payable: see G.P. and Aviva Insurance Company of Canada.7
The positions of the parties
13The Dominion submits that the denials it issued to M.L. complied with the requirements in Smith and therefore triggered the limitation period.
14M.L. submits that although the language of The Dominion’s denials may have been clear and unequivocal, they are deficient because The Dominion contravened several provisions of the Schedule in adjusting her claim. She submits that for some of the benefits she claimed, The Dominion never issued a final denial.
15I have carefully considered the parties’ submissions and the documents in evidence before me. For each benefit in dispute, I find that The Dominion issued a clear and unequivocal denial of payment communicated in straightforward language directed to an unsophisticated (to use the language in the jurisprudence) or lay person. Each denial was accompanied by notice of the two-year period for commencing the dispute resolution process. The denials were Smith-compliant and triggered the two-year limitation period under the Schedule.
The facts
16On April 3, 2020, by way of an amendment to her application, M.L. applied to the Tribunal on each of the following issues.
Income Replacement Benefit (IRB)
17M.L. claimed an IRB from August 11, 2008 to November 6, 2009. The Dominion denied the benefit by way of a letter and Explanation of Benefits (EOB) dated July 21, 2008. The letter stated:
Based on [the IE assessor’s] opinion we have determined that your entitlement to receive Income Replacement Benefits has ceased as you no longer meet the criteria to qualify for this benefit. No consideration will be given towards the payment of an Income Replacement Benefit on or after August 11, 2008.
18The EOB clearly indicated the two year time limit for commencing a dispute of the denial.
19M.L. applied to the Tribunal 11 years, 8 months and 13 days later.
Prescription medications
20M.L. claimed for the cost of prescription medications on February 12, 2009. The Dominion denied the benefit in a letter and an EOB dated February 23, 2009. The letter stated:
[…] the application referred to (OCF-6) above must include a treatment plan […] Upon receipt of the completed treatment plan we will review the request for funding.
21The EOB clearly indicated the two year time limit for commencing a dispute of the denial.
22M.L. applied to the Tribunal 11 years, one month, and 22 days later.
Physiotherapy (August 21, 2017 treatment plan)
23M.L. claimed for the cost of physiotherapy services on September 11, 2017. Travelers8 denied the benefit in a letter dated September 26, 2017, stating:
[…] we are unable to approve the services requested because we have concluded that the Treatment and Assessment Plan is not reasonable, necessary or essential […] It is the opinion of the assessor that you do not require further treatment […] Please note that if you choose to participate in the proposed treatment, Travelers will not be liable for any payment […] If you disagree with our decision and wish to dispute it, you have a right to file an application with the Ontario Licence Appeal Tribunal (LAT) – Automobile Accident Benefits Service within 2 years of the date of this letter.
24M.L. applied to the Tribunal two years, six months, and 23 days later.
Physiotherapy and psychological services (August 11, 2009 treatment plan)
25M.L. claimed for the cost of physiotherapy and psychological services on August 11, 2009. The Dominion denied the benefit in a letter and EOB dated August 25, 2009, stating:“We will not fund the Treatment Plan as submitted.”
26The EOB dated August 25, 2009 clearly indicated that the benefit was not payable and noted the two year time limit for commencing a dispute of the denial.
27M.L. applied to the Tribunal 10 years, seven months and nine days later.
Psychological services (August 18, 2009 treatment plan)
28M.L. claimed for the cost of psychological services on August 18, 2009. The Dominion denied the benefit in a letter and an EOB dated September 1, 2009. The letter stated: “We will not fund the Treatment Plan as submitted.”
29The EOB clearly indicated that the benefit was not payable and noted the two year time limit for commencing a dispute of the denial.
30M.L. applied to the Tribunal 10 years, 7 months and 16 days later.
Physiotherapy and psychological services (December 9, 2010 treatment plan)
31M.L. claimed for the cost of physiotherapy and psychological services on December 9, 2010. The Dominion denied the benefit in a letter and an EOB dated December 31, 2010. The letter stated: “I regret to advise you that we will not fund this Treatment and Assessment Plan pending the result of the Insurer’s Examination.”
32The EOB clearly indicated that the benefit was not payable and noted the two year time limit for commencing a dispute of the denial.
33M.L. applied to the Tribunal nine years, three months and 25 days later.
Housekeeping services
34M.L. claimed for the cost of housekeeping services from July 22, 2008 to November 6, 2009. The Dominion denied the benefit in a letter and an EOB dated July 15, 2008. The letter stated:
The opinion of the Insurer Examination assessor is that you do not suffer a substantial inability to engage in pre-accident housekeeping tasks […] Housekeeping assistance is not required […] Based on this opinion, we have determined that you do not meet the criteria to qualify for housekeeping […] and no expenses relating to these benefits will be payable.
35The EOB dated July 15, 2008 clearly indicated that the benefit was not payable and noted the two year time limit for commencing a dispute of the denial.
36M.L. applied to the Tribunal 11 years, eight months and 19 days later.
In-Home Assessment (May 26, 2008 treatment plan)
37M.L. claimed for the cost of an In-Home Assessment on May 26, 2008. The Dominion denied the benefit in a letter and an EOB dated June 11, 2008. The letter stated:
the request for a Home Site Assessment/interview is not reasonable for the treatment of accident related impairment […] The Dominion of Canada General Insurance Company will therefore not approve and fund the costs associated in obtaining an orthopedic assessment [sic] as outlined in the Application for Approval of an Assessment or Examination.
38The Dominion EOB dated June 11, 2008 clearly indicated that the benefit was not payable and noted the two year time limit for commencing a dispute of the denial.
39Even with the mistaken reference to an “orthopedic assessment” in the letter, the denial met the legal requirements for triggering the limitation period. Both the letter and the EOB clearly and repeatedly identified the treatment plan in dispute.
40M.L. applied to the Tribunal 11 years, nine months and 23 days later.
In-Home Assessment (September 15, 2008 treatment plan)
41M.L. claimed for the cost of an In-Home Assessment on September 15, 2008. The Dominion denied the benefit in a letter dated September 18, 2008, stating: “We will not fund the assessment […] a review of the information that we have on file does not support the need for an in-home assessment.”
42The letter also clearly indicates the two year time limit for commencing a dispute of the denial.
43M.L. applied to the Tribunal 11 years, six months and 16 days later.
Issue: Neurological Assessment
44M.L. claimed for the cost of a Neurological Assessment on June 24, 2009. The Dominion denied the benefit in a letter and an EOB dated June 29, 2009. The letter stated: “We will not fund the assessment that was to be completed [by the proposed assessor]”.
45The EOB clearly indicated that the benefit was not payable and noted the two year time limit for commencing a dispute of the denial.
46M.L. applied to the Tribunal 11 years, nine months and five days later.
Conclusion
47M.L. mistakenly conflates the legal requirements for a valid denial with the substantive legal requirements for denying a benefit. As the Court of Appeal highlighted in Turner and in Sietzema, the first set of requirements address the sufficiency of the notice an insurer gives to an insured person of a dispute and the process for resolving that dispute. The latter set of requirements can only be determined through that dispute resolution process.
48It is open to insured persons who disagree with a denial to dispute the decision to withhold a benefit. The Tribunal may eventually determine that the reasons for the denial were not legally correct and order payment of the benefit. But the Schedule clearly sets out the rules governing that process. An insured person must formally commence the process by applying to the Tribunal within two years.
49M.L. asserts The Dominion failed to comply with several provisions of the Schedule and in so doing, wrongly denied her benefits. Those submissions could properly have been considered had she commenced her application within the two year limitation period. She commenced proceedings from six months to almost 10 years outside of that period.
50I am sensitive to M.L.’s explanation for the delay, which she states was a result of ineffective representation by her legal counsel. Any legal recourse she may have available to her as a result is not, at this point, against The Dominion.
51Briefly, M.L. asks me to consider extending the limitation period under s. 7 of the Licence Appeal Tribunal Act, 19999 if necessary, to preserve her claims. Section 7 provides:
Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of the Tribunal under section 11 or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,
(a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and
(b) give the directions that it considers proper as a result of extending the time.
52The decision of Adjudicator D. Neilson in S.S. v. Certas Home and Auto Insurance Company10 gives a persuasive interpretation of s. 7 of the Licence Appeal Tribunal Act and of the Schedule, and I adopt that interpretation. The provision for granting an extension of time for “giving a notice requiring a hearing”, (or, in the Automobile Accident Benefits Service context, filing an application), does not extend to proceedings under the Schedule, which is a regulation rather than an Act. S.S. outlines the legislative history of the statutory regime which supports a plain reading of the provision, read in the context of the Schedule as a whole. I conclude on this basis that I would be acting outside my jurisdiction to consider extending the time period to allow M.L. to proceed with her application on the issues in dispute before me.
ORDER
53M.L. is barred from proceeding with her claim for the issues identified in paragraph 4(i) of these reasons because she failed to commence her application within two years after The Dominion’s refusal to pay the amounts claimed.
54Within 30 days of this order, the parties may contact the Tribunal to request a case conference to arrange a hearing on the substantive issues remaining in dispute.
Released: October 9, 2020
Theresa McGee
Vice-Chair
Footnotes
- Pursuant to the Case Conference Order of Vice-Chair H. Trojek, I refer to those issues identified in the June 1, 2020 Preliminary Issue Submissions and July 27, 2020 Reply Submissions of The Dominion.
- Under O. Reg. 403/96 (“the 1996 SABS”), the applicable provision is s. 51. Under O. Reg. 34/10 (“the 2010 SABS”), the time limitation is set out in s. 56. The language of both provisions is the same. Section 51 of the 1996 SABS continues to apply to accidents that occurred on or before November 1, 1996 and before September 1, 2016. The 1996 SABS is the applicable Regulation. Where either party refers in their submissions to s. 56 of the 2010 SABS, I consider those submissions in relation to s. 51 of the Schedule.
- 2002 SCC 30 at para. 14.
- 2019 CanLII 119769 (ON LAT).
- 2020 CanLII 12713 (ON LAT).
- 2014 ONCA 111.
- 2017 CanLII 77379 (ON LAT) at para. 27.
- Travelers acquired the Dominion in 2013.
- S.O. 1999 c. 12 Sched. G.
- 2016 CanLII 153125