R.M. v. CAA Insurance, 2020 CanLII 94775

Citation: R.M. vs. CAA Insurance, 2020 ONLAT 19-003499/AABS/AABS

Date: November 23, 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:

R.M.

Appellant(s)

and

CAA Insurance

Respondent

DECISION

PANEL:

Jeffrey Shapiro, Vice-Chair

APPEARANCES:

For the Applicant:

Todd Reybroek and Christina Campoli, Counsel

For the Respondent:

Caley Ross and Claudia Cappuccitti, Counsel

HEARD:

By Telephone Conference on September 13, 2019 and written submissions completed December 5, 2019

OVERVIEW

1The applicant (“R.M.”) was catastrophically impaired in an automobile accident on March 22, 2016. She received insurance benefits from CAA Insurance under the Statutory Accident Benefits Schedule – Effective after September 1, 2010, O. Reg. 34/10 (the “Schedule”), including a non-earner benefit (“NEB”). By letter dated October 4, 2016, CAA denied further payment of the NEB after October 12, 2016.

2After two years, on November 19, 2018, R.M. appealed to this Tribunal to dispute the NEB and other denials. The parties resolved all issues except the NEB. This matter is now before me on CAA’s motion requesting that the Tribunal decide if R.M.’s appeal of the NEB is untimely and thus time-barred. CAA’s adjuster provided an affidavit and testified by telephone, followed by the parties’ written submissions. After consideration, I find that the NEB is, in fact, time-barred.

PRELIMINARY ISSUE

3The sole issue for me to decide is: “Is the applicant barred from proceeding with her application due to her non-compliance with the limitation period from section 56 of the Schedule?”

RESULT

4R.M.’s claim for the NEB is time-barred under section 56 of the Schedule.

ANALYSIS

a. [Section 56](https://www.canlii.org/en/on/laws/regu/o-reg-34-10/latest/o-reg-34-10.html#sec56_smooth) of the [Schedule](https://www.canlii.org/en/on/laws/regu/o-reg-34-10/latest/o-reg-34-10.html)

5Section 56 of the Schedule provides that an application to dispute a denial of a benefit must be commenced within two years of the insurer’s refusal to pay. Section 64 allows the denial notice to be sent by regular mail or faxed to an insured’s lawyer. Once a proper denial has been properly sent, if an insured does not appeal within that period, the Tribunal can not hear it as it is “time-barred”.

6CAA submits that on October 4, 2016, Adi Gurovich, a senior claims adjuster for CAA, (1) personally drafted the denial letter that stated the benefit would be stopped effective October 12, 2016, (2) mailed it to R.M., and (3) faxed a copy to the R.M.’s lawyer. Thus, R.M. had until the two-year anniversary on October 4, 2018 (or possibly October 12, 2018) to appeal. Yet R.M. did not appeal until November 19, 2018 – 5 weeks later – and thus the appeal is late and time-barred.

7R.M. does not dispute the form of the denial, but questions whether CAA ever sent out the denial letter. I find CAA did so and accept CAA’s timeline, as follows.

8First and foremost, in the case of the fax, there is virtually no doubt it was sent, because Mr. Gurovich produced a fax confirmation report.

9R.M. submits that the fax confirmation is not reliable because it refers to 60 pages being sent, while the affidavit only refers to the denial letter and a dispute addendum being sent, which are each only a few pages. I disagree. Mr. Gurovich provided a logical explanation that a coversheet and the underlying examination reports, referenced in the letter, were also sent and those add up to 60 pages.

10In fact, the 60-page length and transmission itself are corroborated by a copy of the denial letter in Alpha Med Wellness Centre’s clinical notes and records¹. The fax transmission stamp on that letter’s lower margin shows the transmission was exactly 60 pages and dated October 4, 2016. The fax cover page also lists that it was to be faxed to both Jennifer at Reybroek Barristers and Dr. Charalambous, who is with Alpha. Thus, the fax confirmation report provided by Mr. Gurovich exactly matches this information – i.e. Mr. Gurovich’s confirmation report shows two fax transmissions of 60 pages transmitted to each individual as listed on the fax cover page.²

11R.M. also submits that Mr. Gurovich’s affidavit states he requested the denial be faxed to the lawyer – implying someone else did it, yet he testified he faxed it. Although a moot point due to the fax report and a copy does appear in Alpha’s records, I accept his explanation that he meant he requested the system fax it.

12Second, in the case of the letter mailed to R.M., as the only probative evidence before me directly addressing the letter is Mr. Gurovich’s affidavit and testimony that he mailed the letter, I accept that the letter was mailed on preponderance of the evidence. R.M. does not provide evidence that many, or even any, notices have not be received, and as noted below, she does not actually deny receiving this denial. As for R.M.’s argument that Mr. Gurovich admitted that he did not place the letter in the mail and that he only requested others to do so, I agree that weakens the strength of the evidence but do does not defeat it. For instance, CAA’s claim on this point would be stronger with log notes from the mailing center or further evidence about processes, but I understood the thrust of Mr. Gurovich testimony is that he mailed the letter in accordance with regular procedure, at an insurance company that regularly mails out such letters. Neither party showed any problems with that mailing procedure used by CAA.

13While I accept Mr. Gurovich’s testimony on both the mailing and faxing of the letter, I note that when I tried to clarify whether he has independent recollection of the events or is just piecing it together from log notes and his regular course, he did not give a clear answer, insisting that that he knows that “he did it”. My impression is that he was piecing it together, although at one point he implied that he did have independent recollection. As well, the discrepancies appeared to be a function of the hearing process, rather than pointing to a lack of credibility. For instance, while the affidavit was not precise about what was sent, the letter did reference enclosures and it is logical that the fax coversheet would have been sent even if not specifically mentioned.

14Third, I note that while R.M. tried to show the above weaknesses in CAA’s evidence, R.M. does not directly deny that the fax was received. Likewise, her denial on receiving the letter was a single conclusory sentence in submissions by counsel, unsupported by R.M.’s testimony or affidavit³ - and thus not proper evidence. Even if I accept counsel’s submission as evidence, it is of little value being hearsay by counsel, on the central disputed point, with no context such as showing a wrong address, and other context given (discussed below) appears factually incorrect. I take R.M.’s submission as a virtual admission on the receipt issue and that her real issue is relief under section 7 of the Licence Appeal Tribunal Act, 1999 (“LAT Act”) addressed below.

15Fourth, two other events were raised which weaken R.M.’s version of events:

• First, counsel submits his office first learned of the denial by email on November 15, 2018, and then immediately appealed by November 19, 2018⁴. However, (1) that time frame does not make sense as it would mean the benefit was stopped for more than two years without R.M. or counsel inquiring as why the payment stopped, and (2) Mr. Gurovich testified that he spoke with “Nicole” of R.M.’s lawyer’s office on July 28, 2017 about the October 12, 2016 stoppage.

• Second, in her November 28, 2019 submissions for this motion, R.M. denied receiving CAA’s submissions filed November 11, 2019 and due November 14, 2019, and thus she filed her own submissions blind, with the right to reply to CAA’s submissions. However, CAA responded with a courier delivery receipt even identifying the recipient – whom counsel submits are listed on R.M.’s lawyer’s website.⁵ CAA also submits it “is at a loss to understand why [R.M.] would draft responding motion materials in the absence of the moving party’s [i.e. CAA’s] Submissions.” I agree and find R.M’s assertion dubious even without the courier receipt, as it would seem obvious to contact opposing counsel or perhaps even the Tribunal if it truly had not received CAA’s submissions.

16When all the above points are taken together, there is little doubt the letters were sent/emailed as CAA claims. The evidence comes down to R.M. and her lawyer, denying receiving four contacts between them (i.e. the letter, fax, phone call, and recent submission), despite there are fairly indisputable records that three of those occurred, and Alpha (R.M.’s chiropractors) even received a faxed copy of the 60 page denial fax exactly as CAA claims to have sent it. As well, R.M. has not pointed to any wrong street or email address or similar error.

17I find that the fax and letter were both forwarded on or about October 4, 2016 as alleged by CAA, and that R.M. has not appealed the NEB denial within the two-year time frame and thus is time-barred.

b. S. 7 of the LAT Act

18R.M. submits that even if her claim for the NEB is technically barred under s. 56 of the Schedule, s. 7 of the Licence Appeal Tribunal Act provides the Tribunal discretion to extend the time for commencing the appeal if there are reasonable grounds for the extension and granting relief.

19I note there is conflicting authority of whether s. 7 applies to matters under the Schedule.⁶ Thus, for the sake of argument, I will assume that s. 7 applies.

20Case law has established a four-part test to determine if the justice of the case requires the extension. The factors are: (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. Also, the fact that applications under the Schedule are governed by the two-year limitation compared to the 15-day Notice period in many of the Tribunal’s other proceedings, will “undoubtably influence” of how the factors are applied.⁷

21An applicant has the onus to establish the extension but need not satisfy all four factors. Rather, the analysis requires a balancing of the conclusions reached when applying the facts of the case to the factors.⁸ The general rule is that an extension not be granted unless the appealing party shows the factors apply to support an extension.

22For the first factor, R.M. submits that she had a bona fide intention to appeal within the appeal period regarding the denial of the NEB and would have appealed in a timely manner had she been aware of the denial date. While she did appeal other benefits, I do not accept this submission as R.M. was aware of the denial date as shown above, and the record is absent of any intention to appeal, other than the fact that R.M. did ultimately appeal after the period was over. As the Divisional Court held, while an intention to appeal does not need to be shown at the outset, it does need to be shown during the appeal period.⁹

23For the second factor (delay), the delay is 46 days – 6 to 7 weeks. While not extraordinary in length, it is also not a matter of a few days, nor is there a valid reason provided for the delay (as discussed above, the benefit was stopped more than two years earlier and I reject R.M.’s claim of a lack of notice), or why such a delay is minimal in context. I see this factor in CAA’s favor.

24R.M. submits that two decisions of the Tribunal applied s. 7 with similar length delays but I find them distinguishable. First, in 16-001381 v. Aviva¹⁰, the Tribunal found 5 weeks is not too long. However, as CAA points out the Tribunal actually found the claim was timely, and only addressed s. 7 on alternate grounds. Even there, the case is distinguishable because the delay flows out of the transitional period when there was a jurisdictional change of Schedule disputes from FSCO to this Tribunal. The applicant did file within two years for then-mandatory mediation process but was then blocked by the respondent from adding the issue to the existing FSCO case. Still, the applicant was timely within the then existing 90-day extension under the old system, but untimely against the two-year requirement for a new LAT claim. Thus, the adjudicator found that claim was actually timely, but if not, then on alternative grounds, s. 7 would be properly applied due to the unique circumstances of the jurisdictional and process changes, the delay being due to factors beyond her control and the insurer refusing to add the issue to the pending case under the FSCO scheme.

25R.M. also submits that in 18-001196 v. Certas¹¹, the Tribunal applied s. 7 for appeal delays ranging from 2 to 39 days. However, as CAA submits, this case was reversed on reconsideration and is also distinguishable as the delay in part flows from the transition of the dispute resolution process from FSCO to LAT. Again, the applicant started the dispute resolution process with FSCO prior to the two-year deadline, but due to the transition, the mediation never occurred, and called into question if the subsequent appeal to LAT was untimely or not.

26Regarding the third factor (prejudice), R.M. submits CAA would not be prejudiced because CAA has been actively engaged in this claim including deeming R.M. catastrophic on December 28, 2018, while she, rather than CAA, would be prejudiced by being barred on her NEB claim. Conversely, CAA submits R.M. would not be prejudiced as she was represented by counsel at all relevant times and “As such, [R.M.] has a potential claim against her lawyers…for their failure to submit [R.M.’s] Application…]” in a timely manner. CAA submits if the claim is allowed to proceed, it may be prejudiced as its reports “are more than two years old and it would be forced to locate, produce, and rely on experts and evidence which may not be available anymore.”

27I find this factor weighs somewhat in R.M.’s favor. Certainly, R.M. would lose out on the NEB. While she might have a claim against her counsel to cover her losses, its is beyond the evidence in and scope of this case to confirm if she has a viable claim or its value. CAA might have some difficulty on its evidence for the NEB, and may need updated assessments, but its submission appears overstated, as this file was being actively adjusted when the late claim was filed.

28Finally, regarding the fourth factor (the merits), R.M. submits her impairments are substantial as she was deemed catastrophic by her own assessor on criteria 7 and 8 and CAA accepted her as catastrophic on criteria 8, and thus she would also be entitled to a NEB. Disability Certificates (OCF-3s) completed in April and June of 2016 opine she suffers a complete inability to carry on a normal life, and her family doctor notes she complained of difficulties in various tasks including housekeeping, and that he recommend physio and massage therapy, with a referral to an orthopedic surgeon. R.M. also points to several assessments, including psychological assessments, finding diagnoses such as an “adjustment disorder with mixed anxiety and depressed mood and specific phobia”, and an assessments of attendant care needs recommending $1,160.17 and 1,223.02 monthly needs. A January 9, 2019 assessment – two days after her January 7, 2019 shoulder surgery – found she requires $6,716.00 a month in help as she has virtually no use of her right shoulder immediately following the surgery.

29CAA argues its denials were supported by IEs, and that a catastrophic designation does not establish entitlement to a NEB – they are different tests.

30I find this factor weighs somewhat in R.M.’s favor. Entitlement to a NEB and a catastrophic designation are different tests. R.M. has pointed to evidence that she was impaired from the accident but has not established that evidence likely translates to an NEB. R.M. has not shown what her regular activities that constitute her “normal life” are, or that she has a “complete inability” to carry on her normal life. However, while R.M. does not point to the specifics of the NEB test, the CAT reports and other medical evidence do discuss changes in her life, and all appear to agree – at least from a psychological point of view – that there were changes.

31Taking the factors together, I find that R.M. has not met her burden. At the core, it appears to me that R.M. missed the deadline, for a significant amount of time, with no reason for the late filing. Thus, while I acknowledge that the result may be harsh on R.M., R.M. is really asking that the two-year limitation period not apply simply because she feels she has a good case on the merits. While s. 7 may provide discretion to extend the two-year limitation, there must be more meaningful circumstances to exercise that discretion such as how or why the deadline was missed, or the two-year limitation period is rendered meaningless.

CONCLUSION/ORDER

32The application for the NEB is time-barred in accordance with section 56 of the Schedule and is hereby dismissed. As the parties have advised all other issues in dispute has been resolved, the Application is dismissed.

Footnotes

1. 1Tab 18 (p. 598), Written Submissions of the Applicant.
2. 2While Alpha’s copy of the fax corroborates Mr. Gurovich’s fax confirmation, testimony and that the denial was transmitted to Reybroek Barristers, I note from the fact that Reybroek submitted Alpha’s records, including Alpha’s “CC copy” of the denial fax, as a Tab to R.M.’s submissions, that Reybroek also received a copy of the denial from Alpha. However, the evidence does not establish when Alpha provided the records, or the denial, to Reybroek. It might have been at a relevant time such as when Alpha first received the denial on October 4, 2016 or around March 6, 2018 (Tab 18, p. 528) when Alpha’s invoice for the records is dated, but it could also be some other time such as just before these submissions.
3. 3Para. 9, Written Submissions of the Applicant.
4. 4See Tab 38 and Para. 9, Written Submissions of the Applicant.
5. 5I note that while this evidence was also, at least in part, by counsel’s submission, it is different from R.M. counsel’s denial of receipt on R.M.’s behalf as CAA supports its submission by evidence such as the courier receipt, and the topic of service of documents is within counsel’s purview.
6. 6For example, in a reconsideration decision, Certas Home and Auto Ins. Co., 2016 CanLII 153125 (ON LAT) (Reconsideration) Adjudicator D. Neilson found that s. 7 does not apply to the Schedule. R.M. cited the hearing decision in that matter. Currently, the reconsideration decision is on appeal before the Divisional Court.
7. 7A.F. v. North Blenheim Mutual Insurance Company 2017 CanLII 87546 (ON LAT) (Reconsideration) (“North Blenheim”)
8. 8Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (Div. Ct.)
9. 9Manuel, 2012 ONSC 1492, Para. 22 – 23.
10. 1016-001381 v. Aviva Insurance Canada, 2018 CanLII 39443 (ON LAT)
11. 1118-001196 v. Certas Home and Auto Insurance Company, 2018 CanLII 141018 (ON LAT), reversed in Certas Home and Auto Insurance Company, 2016 CanLII 153125 (ON LAT).