Citation: McQueen vs. Aviva Insurance Canada, 2021 ONLAT 19-011429/AABS

Released: January 29, 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:

Lizabeth McQueen

Applicant

and

Aviva Insurance Canada

Respondent

PRELIMINARY ISSUE DECISION AND ORDER

ADJUDICATOR:

Cezary Paluch

APPEARANCES:

For the Applicant:

George Campbell, Paralegal

For the Respondent:

Aimee Draper, Counsel

HEARD

By way of written submissions

OVERVIEW

[ 1 ] The applicant was injured in an automobile accident on February 2, 2016 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the ''Schedule''). When those benefits were denied, the applicant submitted an appeal to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) on October 18, 2019.

[ 2 ] At the case conference, the respondent raised a preliminary issue giving rise to this hearing to determine whether the applicant’s application was statute-barred for 3 of the 4 issues in dispute.

PRELIMINARY ISSUE

[ 3 ] The issues to be decided at the hearing as per the Order of the Tribunal dated September 24, 2020 are:

i. Is the applicant statute barred from appealing the denial of the following benefits because she failed to commence her appeal within two years of the date that her claim for each benefit was denied, as required by s. 56 of the Schedule?

ii. An income replacement benefit (IRBs) was denied by the respondent August 17, 2017.

iii. A medical benefit in the amount of $2,260.00 was denied by the respondent January 24, 2017.

iv. A medical benefit in the amount of $200.00¹ was denied by the respondent March 1, 2017.

RESULT

[ 4 ] I find that the applicant is statute-barred from proceeding with her claim for IRBs as well as both treatment plans.

LAW

[ 5 ] Under s. 56 of the Schedule, an applicant has two years after the insurer’s refusal to pay the amount claimed to dispute the denial.

ANALYSIS

Clear and Unequivocal Denials

Income Replacement Benefits

[ 6 ] The applicant submits that she filed her application within the limitation period to dispute her entitlement to IRBs. I disagree for the following reasons and also find that the denials were proper.

[ 7 ] To determine whether a denial is proper, it must be in accordance with the principles outlined in Smith and Co-Operators General Insurance Company.² According to Smith, the refusal to pay the benefit must contain straightforward and clear language, must be directed towards an unsophisticated person, must outline the dispute resolution process and the relevant time limits that govern the process, and must provide valid or other reasons for the denial. If the respondent’s notice to the applicant does not meet these basic requirements, the denial is invalid and the two-year limitation period in the Schedule is not triggered.

[ 8 ] Here, multidisciplinary insurer examinations were conducted in April 2017 to address the applicant’s entitlement to IRBs. Subsequently, by an explanation of benefit form (“OCF-9”) dated May 29, 2017, the respondent initially stopped the IRBs on the basis of the insurer examinations of Drs. Alvi and Schwartz, and Ms. Stephens and Mr. Morris. The applicant was advised in this letter that she did not suffer a substantial inability to perform the essential tasks of her pre-accident employment and that IRBs would terminate as of May 29, 2017.³ She was also advised in this same letter that she had a right to dispute this decision by filing an application with the Tribunal within two years from the denial and that, if she didn’t apply within that time, she would lose the right to dispute this decision. Shortly after, in correspondence dated June 6, 2017, the respondent agreed to reinstate IRBs in exchange for the applicant attending a work hardening to help her return to the workforce, and approved an 8-week program in a treatment plan submitted by Mackenzie Medical.⁴ This correspondence stated that, should the respondent not receive confirmation of the applicant’s start of the program by June 21, 2017, it may stop the IRB.⁵

[ 9 ] On August 17, 2017, Mackenzie Medical advised the respondent that, despite its repeated attempts to schedule an appointment, the applicant did not start the work hardening plan. As a result, by OCF-9 dated August 17, 2017, the respondent advised the applicant that the IRB would be terminated on this date on the basis that she failed to attend the work hardening program. The respondent allowed the recurring cheques of $617.40 to continue up to the final payment date of October 13, 2017 for the service period of October 10, 2017 to October 23, 2017.

[ 10 ] As such, since the denial date was August 17, 2017, the applicant had until August 17, 2019 to dispute her claim for IRBs. I do not agree with the applicant that the denial date was the later stoppage or termination date of October 23, 2017⁶ as she seems to argue in her submissions (although she also refers to a date of October 18, 2019 at para. 19 of her submissions, which appears an error). Again, s. 56 clearly states that the limitation period begins to run on the insurer’s refusal to pay the amount claimed. There is no ambiguity in s. 56. The limitation period is triggered by the date of the denial, not by the effective stoppage date of the particular benefit.⁷

[ 11 ] For completion regarding the correct date of denial for the IRBs, the applicant conceded in her application that the date of the denial was in fact August 17, 2017 and also states the reason for the denial as: “Letter from AB Insurer dated August 17, 2017, stated that the applicant failed to continue going to work hardening program.” In the same application form, under the Acknowledgment section, she confirms that all the information in the application is true and correct. The Application was signed by the applicant and her legal representative. For all these reasons, I fail to understand how the applicant is now arguing that the denial date was something other than August 17, 2017.

[ 12 ] Based on all of the information before me, including my review of the explanation of benefits form dated August 17, 2017⁸, I find that the IRB was denied on August 17, 2017 and that it was proper denial in accordance with the Schedule’s requirements and the principals in Smith. The correspondence also included information on the right to dispute Aviva’s determination of her claim which states in bold letters, “Two Year time limit…The dispute resolution process starts when you file an application”

[ 13 ] The applicant was advised that benefits were denied on the basis of a s. 44 report which determined that she did not suffer a substantial inability to perform the essential tasks of her pre-accident employment and on the basis that she failed to attend treatment and participate in an 8-week work hardening rehabilitation program. Notably, the OCF-9 refers to the previous initial denial and correspondence of May 29, 2017 and informs the applicant in very straightforward and clear language of her right to dispute the decision, the two-year limitation period to dispute a claim which is bolded, and the detailed steps necessary to file an Application with the Tribunal. It also invites the applicant to contact the adjuster for assistance if necessary. The correspondence plainly says this is a “Final Income Benefit Payment” and that “Aviva will not consider further income replacement benefits past August 17, 2017.”

[ 14 ] The applicant also concedes receiving this correspondence form by fax.⁹ I also note that this correspondence was also copied to the applicant’s representative on the same date.¹⁰

[ 15 ] The applicant filed an application with the Tribunal dated October 18, 2019, requesting IRBs. The Tribunal received the application on the same day. Her application was submitted about two months after the two-year limitation had elapsed on August 17, 2019. Other than her submission that the limitation period started to run from October 23, 2017, the applicant offers no real excuse for the delay or takes any issue with the denial notice.

$2,260 for a neurological assessment

[ 16 ] The applicant submitted a treatment plan of Dr. I. Robertus of Princeton Hills Medical Assessments dated October 14, 2016 in the amount of $2,260.00 for a neurological assessment. This plan was denied by the respondent on November 28, 2016¹¹ and the applicant was referred to an insurer’s examination. The medical reason provided was that “the type of treatment does not appear consistent with the patient’s diagnosis.” Subsequently, after completion of the in-person IE on December 29, 2016, the respondent denied this plan via an explanation of benefits OCF-9 dated January 24, 2017 on the basis of an Neurological Assessment Report dated January 2, 2017 by Dr. G. Kleiner, who determined that the applicant does not require a neurological assessment because there was no evidence of accident-related neurological deficits but she does have cervical and lumbar spasms. The applicant confirms in her Application (page 4) that the date of the denial was January 24, 2017, so there is no issue with the correct denial date.

[ 17 ] My review of this denial dated January 24, 2017 is that it was clear and unequivocal and informed the applicant of the reason for the denial, her right to dispute, the two-year limitation period to dispute a claim and the steps necessary to file an application with the Tribunal. It also invited her to contact the adjuster for assistance if necessary. As a result, the applicant had until January 24, 2019 to dispute denial of this plan. She did not file her appeal until October 18, 2019, almost nine months beyond the two-year limitation period.

[ 18 ] The applicant offers no explanation for the delay of disputing this treatment plan or takes any issue with the form or content of the denial notice. I also note that the OCF-9 was also copied to the applicant’s representative and Princeton Hills Medical on the same date and enclosed Dr.’s Kleiner’s report.

$1,384.70 for chiropractic treatment and massage therapy

[ 19 ] The applicant submitted a treatment plan of Mackenzie Medical dated February 23, 2017 in the amount of $1,384.70¹² for chiropractic treatment and massage therapy sessions received by the respondent on the same date. In turn, by OCF-9 dated March 1, 2017, the respondent denied this plan on the basis of the opinion provided by Dr. Alvi in his Orthopedic Assessment Report dated January 6, 2017 which determined that the applicant did not require further external facility-based treatment and should be discharged to a home based exercise program towards resolution of uncomplicated myofascial symptoms.¹³

[ 20 ] My review of this explanation of benefits form dated March 1, 2017 is that it was clear and unequivocal and informed the applicant of her right to dispute this denial, the reasons for the decision, the two-year limitation period to dispute a claim and detailed the steps necessary to file an application with the Tribunal. It also invited her to contact the adjuster for assistance if necessary. I also note that the OCF-9 was copied to the applicant’s representative on the same date. As a result, the applicant had March 1, 2019¹⁴ to dispute denial of this plan. She did not file her appeal until October 18, 2019, over seven months beyond the two-year limitation period. Again, the applicant offers no excuse for the delay of disputing this treatment plan nor takes any issue with the form or content of the denial notice in accordance with the Smith principles.

Section 7 of the LAT Act and s. 56 of the Schedule

[ 21 ] The applicant seeks relief from the expiry of the s. 56 limitation period under s. 7 of the Licence Appeal Tribunal Act which states:

Extension of time

7 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 [emphasis added],

(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.

[ 22 ] The applicant relies upon the Tribunal decisions of 17-007716 v Pafco Insurance¹⁶ and A.F. v. North Blenheim Mutual Insurance Company¹⁷ to argue that the Tribunal has jurisdiction under s. 7 of the LAT Act to extend the time to commence her application to the Tribunal and to consider the four factors¹⁸ in making this determination to grant an extension.

[ 23 ] The respondent submits that s. 7 of the LAT Act does not apply because the limitation period is fixed under a regulation, the Schedule, and not “by or under any Act” as the language of section 7 dictates. The respondent relies upon the Tribunal reconsideration decision of S.S. v. Certas Home and Auto Insurance Company.¹⁹ The respondent therefore submits that the Tribunal does not have discretion to extend the limitation period set out in section 56 of the Schedule.

[ 24 ] I am well aware of these decisions and that S.S. and A.F. are currently under appeal to the Divisional Court²⁰ and, therefore, there is no direction on the issue from a court of superior jurisdiction given the disagreement of the Tribunal’s decisions on the applicability of s. 7 of the LAT Act. However, I prefer the determination in S.S. over that of A.F. based on the principals of statutory interpretation that formed the basis of Adjudicator Neilson’s decision that s. 7 of the LAT Act did not apply to s. 56 of the Schedule because the Schedule is a regulation and not an “Act”²¹ which is the specific term used in s. 7 of the LAT Act.

[ 25 ] My plain reading of s. 7 of the LAT Act is that it does not apply because the limitation period for accident benefits claims is fixed under a regulation - the Schedule - and not “by or under any Act” as the language of s. 7 dictates. It seems to me that, if the Legislature intended to extend the s. 7 discretion to regulations, it would have certainly said so explicitly by the simple adding “or regulation” to s. 7, which it did not do, and it appears that the Legislature’s omission of the words “or regulation” in s. 7 of the LAT Act was intentional. In other words, section 7 of the LAT Act is not ambiguous and could have been amended to include “regulations.” Not having done so, I am bound by the plain wording in s. 56 of the Schedule that imposes a limitation period without reference to any extension, and this is what I must apply, and I do not have any discretion to go beyond the wording in this section.

[ 26 ] Therefore, I find that s. 7 of the LAT Act does not authorize the exercise of discretion to extend the limitation period in s. 56 of the Schedule. As I have found that the application related to the three issues was filed outside of the prescribed two-year limitation period, I find that the applicant is statute-barred from continuing with her claim for the IRBs and two plans at issue.

[ 27 ] Despite my finding regarding s. 7, I will also consider the four factors as set in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (“Manuel”) to consider whether to grant an extension under section 7 of the LAT Act.

THE FOUR FACTORS

[ 28 ] In Manuel the Divisional Court ruled that the overriding consideration on a request for an extension of time is whether the justice of the case requires that the extension be granted. The factors to be considered in making this determination are:

i. The existence of a bona fide intention to appeal;

ii. The length of the delay;

iii. Prejudice to the other party; and

iv. The merits of the appeal.

[ 29 ] The applicant has the onus to establish that the justice of the case requires the granting of the extension, she 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. In balancing all these factors, I find that the applicant does not meet that onus.

Bona Fide Intention to Appeal falls within the 90-days rule

[ 30 ] The applicant submits that she submitted her application to the Tribunal on October 18, 2019²² and this “falls within the 90-days rule of her receiving the August 1 7, 2017 letter from the respondent” and this shows that the applicant had a bona fide intention to appeal.

[ 31 ] I am not certain what 90 day rule the applicant is referring to. No case law was submitted to support this argument. The applicant has not provided any explanation nor any evidence of a bona fide intention to appeal the disputed benefits within the appeal period. There was no evidence of any communication or correspondence from the applicant or her representative before of the applicant’s intention to appeal. There was no affidavit from the applicant that she always intended to appeal. No reply submissions were filed. I find there is little to no evidence of a bona fide intention to appeal.

The Length of the Delay

[ 32 ] The delay in applying for benefits in this case is significant at over two months for disputing the denial of the IRB and over seven and nine months respectively beyond the two years for disputing the denial of the two treatment plans in dispute. Moreover, the appeal was filed almost 4 years after the accident.

[ 33 ] The applicant, who was 31-years-old at the time of the accident, offered no extenuating circumstances such as illness (other than emergency surgery in August 2016 and hernia surgery in January 2017), accident or personal crisis of any sort as a reasonable or credible explanation for failure to file an application within the required time. There are letters from Dr. S. Jayaraman dated September 13, 2016 and November 16, 2016 referencing emergency cholecystectomy but it also confirmed that her incisions have healed, she has no residual symptoms and no follow up was necessary. I also note that this occurred before the IRBs were terminated on August 17, 2017.

[ 34 ] The Legislature established a limitation period for a purpose, and it is to be respected, subject only to the discretion in s. 7 that should be used sparingly.²³ In my view, the delay in disputing the IRB benefit is moderately excessive and the delay for disputing the two treatment plans is significantly excessive and not short.

Prejudice to Aviva

[ 35 ] With respect to the third factor to be considered, I find that there is a high degree of prejudice to the respondent, which has been denied the opportunity to arrange for additional medical examinations and reports and/or requested addendum reports and surveillance contemporaneously with the benefits sought. Further, I agree with the respondent that, should the application be allowed to proceed, the parties’ evidence may not be available or be able to be presented fairly and accurately due to the time delay, witness availability, and witness memory as to evidence collected more than four years ago. Also, causation appears to be at issue as the respondent points out the applicant was not employed at the material time, having left her job several months prior to the accident to low back injury sustained in a previous collision in April 2014.

[ 36 ] In my view, the respondent would suffer prejudice as a result of having to defend against a NEB claim that dates back almost five years.

Merits of the Appeal

[ 37 ] This factor does not require me to make a determinative ruling on the merits, but on the facts to assess whether the applicant has a reasonable chance of success.

[ 38 ] Here, the accident occurred on February 2, 2016 and IRBs were paid for a period up to October 23, 2017. Therefore, the applicant, if successful, on this preliminary issue hearing would be entitled to seek IRBs from the stoppage date of October 23, 2017 up to the two-year mark (i.e., only about 3 months) and the balance would be post-104 IRBs when the test changes to a more stringent test. In any event, there is little to no evidence that the applicant meets the more pre- or post-104 tests.

[ 39 ] The Application for Accident Benefit (OCF-1) form, under Part 5 – Applicant Status, states that she is not working and was receiving employment insurance benefits at the time of accident. There were two Disability Certificates (OCF-3) provided. The first OCF-3 is dated February 16, 2016²⁴ completed by Dr. S. Chohan, chiropractor, and states that she suffers a complete inability to carry on a normal life and the anticipated duration is 9-12 weeks. The second OCF-3 completed by Dr. J. Dorar, physician, is dated January 19, 2016²⁵ (although the applicant states this form is dated January 23, 2017) and anticipated duration of recovery is 5-8 weeks. In any event, the applicant appears to never have signed this OCF-3 as Part 4 is blank. The accident descriptions (Part 3) and injuries description (Part 5) in the form are both blank. It appears that no updated Disability Certificate has ever been provided since 2016 (or January 2017 if the applicant is correct and there is some OCF-3 that I was not provided with). The applicant also submitted some hospital records, CNRs, laboratory results and OHIP summaries but all appear to be from 2016-2018 and I did not see any health professional opine regarding the applicant’s inability to engage in any employment. The last OHIP entry is August 19, 2017. In summary, the applicant filed very little evidence that she should be entitled to IRBs and the proposed treatment, and the evidence that she did file was vague and dated.

[ 40 ] In April 2017, multidisciplinary insurer examinations were to address the applicant’s entitlement to IRBs. The assessment included examinations by an orthopaedic surgeon, a psychologist and two kinesiologists. The assessors unanimously concluded that the applicant did not suffer a substantial inability to perform the essential tasks of her pre-accident employment as a property manager, dental hygienist or receptionist. As a result, the respondent denied the IRBs on the insurer examinations.

[ 41 ] After a consideration of the above four factors, I find that the applicant did not have a bona fide intention to appeal within the appeal period and did not provide an explanation for the delay. Combined with significant prejudice that would result to the respondent and that the applicant my not have a reasonable chance of success, I conclude that the justice of the case does not warrant extending the limitation period for the applicant to dispute the NEB denial or the denial of the two treatment plans.

CONLUSION and ORDER

[ 42 ] The applicant’s claim to dispute the denied benefits was beyond the two-year limitation period under the Schedule and I also find that I do not have the jurisdiction to extend the limitation period under s. 56 of the Schedule by virtue of s. 7 of the LAT Act.

[ 43 ] If I am mistaken in my interpretation of the LAT Act, I find that the applicant has failed to establish that the justice of the case favours the extension of the limitation period.

[ 44 ] The applicant is statute-barred from proceeding with his application for IRB and the two treatment plans at the Tribunal, as it was brought beyond the two-year limitation period. The parties shall contact the Tribunal to schedule a case conference in order to determine how to proceed with any remaining substantive issues, if any.

Released: January 29, 2021

Cezary Paluch, Adjudicator

Footnotes

1. 1The Application and the Order refers to an amount in dispute of $200.00. However, actual amount of this plan is $1,384.70 which is the amount that the applicant refers to in her submissions at para. 1 iii. and 24.
2. 2Smith v Co-operators General Insurance Co. 2002 SCC 30, at para 14 (Smith).
3. 3Respondent’s Brief, OCF-9 dated May 29, 2017 at Tab 7.
4. 4Treatment plan (OCF-18) submitted by Mackenzie Medical on June 13, 2017.
5. 5Respondent’s Brief, Letter dated June 6, 2017 at Tab 8.
6. 6See Applicant’s Submissions at paras. 1 i), 3 and 31.
7. 7A.Q. v Wawanesa Mutual Insurance Company, 2020 CanLII 69918 (ON LAT) and Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111 at para. 14.
8. 8The applicant states at para. 18 that she received two such forms on the same day with “some information removed” but does not specify in any way what information was deleted and how this affected the notice.
9. 9See Applicant’s Submissions at para. 18.
10. 10Respondent’s Brief, OCF-9 dated August 17, 2017 at Tab 9 and Applicant’s Brief at Tab 12.
11. 11Respondent’s Brief, OCF-9 dated November 28, 2016 at Tab 11.
12. 12Application refers to an amount of $200.00 which appears to be an error.
13. 13Respondent’s Brief, OCF-9 dated March 1, 2017 and Report of Dr. Alvi at Tab 14.
14. 14The respondent refers to a date of January 24, 2019 which appears an error. However, the calculation of the 231 days is correct which is arrived at by using the denial date of March 1, 2019.
15. 1617-007716 v Pafco Insurance, 2019 CanLII 18324 (ON LAT).
16. 17A.F. v. North Blenheim Mutual Insurance Company, 2017 CanLII 87546 (ON LAT Reconsideration Decision) (A.F.)
17. 18The factors to be considered in making this determination are existence of a bona fide intention to appeal within the appeal period; length of the delay; prejudice to the other party; and the merits of the appeal.
18. 19Certas Home and Auto Insurance Company, 2016 CanLII 153125 (ON LAT).
19. 20See Fratarcangeli v. North Blenheim Mutual Insurance Company, 2020 ONSC 7640.
20. 21Under the Legislation Act, 2006, the definition for “Act” is different from the definition for “regulation.”
21. 22Applicant’s Submissions at para. 31.
22. 23M.M. v Royal & Sun Alliance Insurance Company of Canada, 2020 CanLII 101750 (ON LAT) at para. 20 citing Manuel.
23. 24Applicant’s Book of Documents at tab 2.
24. 25Applicant’s Book of Documents at tab 3.
25. 15The Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (the “LAT Act”).