Released Date: 02/10/2021
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:
Zunnoor Mohammad
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Self-Represented
For the Respondent:
Jason L. Hepburn, Counsel
HEARD:
Via written submissions
OVERVIEW
1This applicant was involved in an accident on August 28, 2015 and sought accident benefits from the respondent, Dominion, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule''). Dominion denied the applicant’s benefit claim on the basis of its determination that he was within the Minor Injury Guideline (“MIG”) and that the treatment plan was not reasonable and necessary. The applicant disagreed and applied to the Tribunal for resolution of the dispute.
2At the case conference, Dominion raised the preliminary issue that the applicant was statute-barred from proceeding with his claim under s. 56 of the Schedule because he failed to appeal its valid denial within the two-year limitation period. A preliminary issue hearing was scheduled for December 14, 2020.
3However, on October 5, 2020, prior to the deadline for the parties’ written submissions, the Tribunal was notified that applicant’s counsel was getting off of the record. The Tribunal made multiple unsuccessful attempts to contact the applicant via phone and email. A letter dated October 28, 2020 was then sent to the applicant at his listed address. The letter notified him of the upcoming written hearing and requested he advise the Tribunal if he would be seeking new representation or proceeding as a self-represented applicant.
4On November 12, 2020, the applicant responded via email, requesting that the Tribunal provide him with a representative. After being informed that the Tribunal does not provide representation, the applicant confirmed via email that he would be proceeding with his application as a self-represented applicant.
5However, the applicant did not file his responding submissions by the deadline and never contacted the Tribunal again. The Tribunal attempted to contact the applicant on December 18, 2020, on January 27, 2021 and again on February 4, 2021, but did not receive a response or the outstanding submissions. Accordingly, the written preliminary hearing proceeded.
ISSUE IN DISPUTE
6According to the Case Conference Order, the sole issue in dispute is as follows:
i. Is the applicant prevented from appealing the denial of the medical benefit in dispute because he failed to commence the appeal within two years of the date that the claim for the benefit was denied, as required by s. 56 of the Schedule?
RESULT
7The applicant is statute-barred from appealing the denial of his claim under s. 56, as he failed to commence his appeal within two years of a valid denial.
ANALYSIS
Section 56
8An 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. The two-year limitation period begins to run once the insurer delivers a clear and unequivocal denial of a benefit. The denial must be straightforward and in clear language, directed towards an unsophisticated person and must also provide information about the different stages in the dispute resolution process and the relevant time limits that govern the process.2
9Dominion submits that its denial of the applicant’s claim for a medical benefit in the amount of $1,998.80 was clear and unequivocal, triggering the running of the two-year limitation period on November 21, 2017. On review of Dominion’s notice, I find it meets the Smith requirements for a valid denial: it states that Dominion received the OCF-18 dated October 24, 2017; that it was denying payment based on the MIG and because it was not reasonable, necessary or essential; it advised the applicant that if he wished to dispute the denial that he had two years to do so; and the notice also included the dispute resolution information sheet. The denial was written in clear language and was sent to the applicant and his former counsel via fax.
10While the applicant’s application to the Tribunal indicated that the OCF-18 in dispute was denied by Dominion on January 2, 2018 (I note that his application to the Tribunal was made on January 2, 2020, exactly two years later), the only treatment plan in evidence is dated October 24, 2017, in the amount of $1,998.80, from Alliance Diagnostics and Treatments. It was submitted to Dominion on November 20, 2017 and denied by Dominion on November 21, 2017. As noted, the applicant has not provided evidence to dispute this nor has he submitted an OCF-18 to support the alleged January 2, 2018 date.
11For completion, the applicant did not provide any evidence or details of any exceptional circumstances or reasons as to why the application was not commenced within the two-year limitation period. Further, he did not offer submissions as to why the Tribunal should exercise its discretion to extend the limitation period under s. 7 of the Licence Appeal Tribunal Act.
12Rule 3.1(a) of the Tribunal’s Common Rules of Practice & Procedure provides for liberal interpretation to facilitate a fair, open and accessible process and to allow effective participation by all parties, regardless of whether they are self-represented or have representation. On the facts, I find the Tribunal has afforded the applicant several opportunities to present his case as a self-represented party. Despite the lack of communication and participation from the applicant, I am satisfied that the Tribunal has facilitated a fair, open and accessible process. Any further delay would offend Rule 3.1(b), which is meant to ensure efficient, proportional and timely resolution of the merits of the proceedings.
13Accordingly, I agree with Dominion that the two-year limitation period to dispute the benefit in dispute expired on November 21, 2019, as Dominion issued a valid denial on November 21, 2017. Given that his application was made on January 2, 2020, which is outside the two-year limitation period, I find that the applicant is statute-barred from proceeding with his application under s. 56 of the Schedule.
ORDER
14The applicant is statute-barred from proceeding with his application as he failed to commence his appeal of a valid denial within the two-year limitation period.
Released: February 10, 2021
Jesse A. Boyce
Vice Chair
Footnotes
- O. Reg. 34/10, as amended.
- Smith v. Co-Operators General Insurance Company, 2002 SCC 30.