Mijatovic v. The Co-operators, 2021 CanLII 134201

Citation: Mijatovic v. The Co-operators, 2021 ONLAT 19-012215/AABS-M

Licence Appeal Tribunal File Number: 19-012215/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Antonija Mijatovic

Applicant

and

The Co-operators

Respondent

MOTION DECISION

ADJUDICATOR:

Samia Makhamra, Adjudicator

APPEARANCES:

For the Applicant:

Ian Drong, Counsel

For the Respondent:

Julianne Brimfield, Counsel

Heard by way of written submissions:

August 4, 2021

BACKGROUND

1The applicant ("AM") was injured in an automobile accident on March 28, 2016 and sought benefits from the respondent, the Cooperators ("Cooperators"), pursuant to the Statutory Accident Benefits Schedule¹ (the "Schedule"). When AM was denied certain benefits, she submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").

2The parties participated in a case conference on March 23, 2021. The matter was set down for an 8-day videoconference hearing starting on February 7, 2022. In addition, Cooperators filed a motion raising a preliminary issue, which is the subject of this decision.

PRELIMINARY ISSUE IN DISPUTE

3The preliminary issue is:

• Whether AM is statute barred from bringing the application to the Tribunal to dispute the IRBs, as they were not disputed within the two-year limitation period, as per s. 56 of the Schedule.

RESULT

4I find that AM is not statute barred from proceeding with her claim for the IRBs.

ANALYSIS

5Section 56 of the Schedule states: "An application under subsection 280 (2) of the Insurance Act in respect of a benefit shall be commenced within two years after the insurer's refusal to pay the amount claimed."

6The parties' positions are straight forward. Cooperators submits AM missed the 2-year limitation period when she filed her application on November 1, 2019 after 5:00 p.m. That is, the IRBs were formally denied on November 2, 2017, but AM's application is deemed to have been filed on November 4, 2019, which is the next business day after November 1, 2019. This is pursuant to s. 64(2) of the Schedule and Rule 6.2 of the Tribunal Common Rules. Relying on Bouianov v. Travelers², the respondent argues that even a short delay in complying with the 2-year limitation period is enough to bar an applicant from pursuing the denied benefit.

7AM disagrees. She submits the denial date should be November 9, 2017 instead, which is five days after the date of the denial letter. If November 2, 2017 is found to be the denial date, however, she argues the limitation period expires on November 4, 2019, given that November 2, 2019 falls on a Saturday.

8I find that AM filed her application on November 4, 2019, which is within the 2-year limitation period from the date of denial of the IRBs. Accordingly, AM can proceed with her claim for IRBs.

9On the evidence, I make the following findings:

• When AM emailed her application to the Tribunal on November 1, 2019 at 6:16 p.m., the application is deemed to have been filed the next business day, which is November 4, 2019 – Rule 6.2(e) of the Tribunal's Common Rules of Practice and Procedure (the "Common Rules").
• The IRBs were denied on November 2, 2017, as they were faxed to AM's counsel on that day at 4:12 p.m. – s. 64(2)(a)³ of the Schedule.
• The 2-year limitation period expires on November 2, 2019. However, as November 2, 2019 is a Saturday, the limitation period is deemed to expire on the next business day, which is November 4, 2019 – s. 64(26)⁴ of the Schedule.

10Therefore, I agree with AM. The limitation period expires on November 4, 2019. Lastly, Bouianov is distinguishable in that, unlike the case here, the Tribunal application was served after 5:00 p.m. on the last day of the limitation period (emphasis is mine).

11The applicant is able to proceed with her application for the IRBs.

Released: December 21, 2021

Samia Makhamra, Adjudicator

Notices and delivery

64. (2) Any document, including a notice in writing, required or permitted under this Regulation to be given to a person may be delivered,

(a) by faxing the document to the person or to the solicitor or authorized representative, if any, of the person in accordance with subsection (19);

Footnotes

1. 1Effective September 1, 2010, O. Reg. 34/10.
2. 2Petr Bouianov vs. Travelers Insurance, 2020 ONLAT 19-005097/AABS
3. 3Section 64 of the Schedule states, in part:
4. 4Section 64(26) states: "If a time period in which a person is required to do anything expires on a day that is not a business day, the time period is deemed to expire on the next day that is a business day at 5 p.m. local time."