Release date: 10/26/2021
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:
Ghislain Belanger
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Poeme Manigat
APPEARANCES:
For the Applicant:
David Wallbridge, Counsel
For the Respondent:
Jonathan Charland, Counsel
HEARD in Writing:
November 30, 2020
OVERVIEW
1The applicant (“G.B”) was injured in an automobile accident (“the accident”) on January 12, 2015 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). On November 27, 2019, he applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) when his claims for benefits were denied by the respondent, Intact Insurance Company (“Intact”).
2The respondent denied the applicant’s claim for ongoing Income Replacement Benefits (IRBs).
3The applicant bears the onus of proving entitlement to the Income Replacement Benefits.
4At the Case Conference, held on June 16, 2020, the respondent raised a preliminary issue. Intact submitted that pursuant to section 56 of the Schedule, the applicant is precluded from proceeding to a hearing on the basis that the applicant’s dispute is statute barred.
PRELIMINARY ISSUE
5The following preliminary issue is to be decided:
i. Is the applicant precluded from proceeding to a hearing on the basis that the applicant’s dispute is statute barred pursuant to section 56 of the Schedule?
RESULT OF PRELIMINARY ISSUE
6I find that the applicant’s claim for IRBs may proceed as it is not barred under section 56 of the Schedule.
FACTS
7On January 12, 2015 the applicant was injured in a motor vehicle accident and contacted Intact for an application for accident benefits.
8On January 20, 2015, the applicant submitted an OCF-1 advising the respondent that he returned to work on January 25, 2015.
9On February 3, 2015, the applicant’s employer submitted an OCF-2 confirming that the applicant resumed work on modified duties and working full time hours.
10On March 26, 2015, the respondent sent a letter to the applicant denying the IRB claim effective January 25, 2015 due to the fact that he returned to work.
11On June 20, 2015, the applicant retained counsel to assist him with his claim. By letter dated June 20, 2020 the applicant’s counsel requested the complete accident benefits file, including the breakdown of benefits paid by category to date.
12On January 19, 2016, the respondent sent a letter with settlement disclosure notice and a full and final release, directly to the applicant.
13On April 8, 2016, the applicant’s counsel sent a letter to the respondent stating that the full and final release document sent to the applicant on January 19, 2016, is improper and in violation of the solicitor-client relationship. On this date, the applicant’s counsel also requested the full updated accident benefits file.
14On July 6, 2018, the respondent advised the applicant’s counsel’s office that the claim was resolved on a full and final basis in the amount of $2,160.25.
15The applicant continued to work until November 8, 2018.
16On December 5, 2018, the applicant’s counsel advised the respondent that the applicant stopped working as of November 9, 2018 and confirmed that the claim was not resolved as stated in the July 6, 2018 correspondence from the respondent.
17On February 15, 2019, Intact informed the applicant that the time limitation for disputing the IRB stoppage had expired and that it would not consider further IRBs. Intact also confirmed that the letter pertaining the stoppage of IRBs issued to the applicant on March 26, 2015 had not been provided to the applicant’s counsel prior to February 15, 2019.
18On November 27, 2019, the applicant filed an application with LAT disputing the stoppage of IRBs on March 25, 2015.
19Therefore, I must determine whether the limitation period began on March 26, 2015 or February 15, 2019, in order to decide whether the applicant is statute-barred from proceeding with an application for a determination of an entitlement to IRBs.
ANALYSIS
20A denial of a benefit by an insurer must be delivered to an insured person in accordance with section 64 of the Schedule. This section requires denial notices to be in writing and permits delivery by various means, including regular mail, registered mail and by fax, to an insured person’s legal representative. It is only once an insurer has delivered a denial notice in accordance with section 64 that the two-year limitation period set out in section 56 of the Schedule begins to run.
21For the reasons that follow, I find that Intact did not deliver the March 26, 2015 IRB stoppage letter to the applicant’s counsel in accordance with section 64 of the Schedule until February 15, 2019. Therefore, the two-year limitation period within which the applicant could apply to the Tribunal to dispute Intact’s decision regarding the IRBs did not expire until February 14, 2021.
Disclosure to Applicant’s Counsel
22I also find that Intact was aware that the applicant was represented by counsel on June 20, 2015. The respondent did not dispute the fact that on January 20, 2015, the applicant’s counsel notified them that he was representing the applicant. Furthermore, the respondent acknowledged that the applicant’s counsel made several requests to obtain his client’s complete accident benefits file. On June 20, 2015 and on April 8, 2016, the applicant’s counsel made two formal written requests to the respondent to obtain the complete accident benefits file. Notwithstanding the applicant’s counsel’s written requests to obtain the complete accident benefits file, the March 26, 2015 IRB stoppage letter was sent directly to the applicant, and only provided to the applicant’s counsel on February 15, 2019.
23The IRBs stoppage letter dated March 26, 2015 should have been provided to the applicant’s counsel on June 20, 2015, or shortly thereafter. The respondent’s failure to provide the requested complete accident benefits file to counsel within a reasonable time frame was prejudicial to the applicant. The respondent did not provide the IRB stoppage letter to the applicant’s counsel until February 15, 2019 but is seeking to enforce the two-year limitation from March 26, 2015. It would be unfair to allow the respondent to rely on the March 26, 2015 IRB stoppage letter to claim that the limitation period has expired when the respondent failed to provide a copy of the same to the applicant’s counsel within a reasonable period of time.
24There is no dispute concerning the respondent providing the IRB stoppage letter (dated March 26, 2015) to the applicant’s counsel on February 15, 2019, and no dispute concerning the applicant filing the application with the Tribunal on November 27, 2019. Therefore, I find that the applicant submitted the application prior to the two-year limitation period, as set out in s. 56 of the Schedule.
Language Barrier
25I find that Intact delivered an adequate IRB stoppage letter to the applicant on March 26, 2015. The applicant claimed that he did not fully understand the content and implications of the IRB stoppage letter due to a language barrier. The applicant submits that his first language is French—the language that he fully understands. The applicant testified that he understood some English and that he communicated with the insurance company in English. He further testified that he did not request a French application when speaking with the insurance company. The applicant testified that his insurance broker assisted him in completing the application in English and that his broker did not suggest that he request the said documents in French. I accept that the applicant’s preferred language is French and that it is the language he is most comfortable with. The applicant could have asked his insurance broker to assist him with understanding the content of the letter as the broker previously assisted the applicant to complete the application. The applicant could have also contacted the insurance company and requested a French copy of the IRB stoppage letter or requested that he be served in French; he failed to do either.
26An applicant cannot claim that they did not understand the content of a letter and its implications when they made no request and no effort to have the document translated into a language of their preference. The applicant was well aware of the claim he made to the insurance company; therefore, if the insurance company issued a letter addressed to him, it is reasonable to expect that the applicant would know, at the very least, that it is pertaining his motor vehicle accident claim. Consequently, it is reasonable to assume that he would know how important it would be to understand the content of such a letter. The facts point to the applicant seeking assistance from his broker to complete the application, but he did not seek the Broker’s help to understand the IRB stoppage letter. I therefore do not accept the language barrier argument as sufficient reason to extend the two-year limitation period.
Costs
27The applicant has requested costs in the amount of $20,000.00 plus HST and applicable filing fees and disbursements. The applicant also requested a 50% payment of the IRBs, arrears and interest.
28This hearing was scheduled strictly to deal with the preliminary issue raised by the respondent at the June 16, 2020 Case Conference. Cost-related submissions should be raised with the adjudicator presiding over the hearing for the remaining substantive issues. Consequently, I decline to make an order for costs herein.
CONCLUSION
29The next step following this decision on the preliminary issue is laid out in the Tribunal’s June 16, 2020 Case Conference Report and Order, which directs the parties to contact the Tribunal to schedule a case conference to deal with the remaining issues in dispute.
Released: October 26, 2021
_________________________
Poeme Manigat, Adjudicator