Released: March 9, 2021
Tribunal File Number(s): 19-010187/AABS & 20-007237/AABS
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:
Payal Amin
Applicant
and
The Co-Operators Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Lindsay Lake
APPEARANCES:
For the Applicant:
Tania Lanteigne, Paralegal
For the Respondent:
Daniel M Himelfarb, Counsel
HEARD:
by way of written submissions
OVERVIEW
1The applicant, Payal Amin (“Ms. Amin”), was injured in two automobile accidents – one that occurred on May 1, 2016 (the “first accident”) and one that occurred on January 9, 2017 (the “second accident”). Ms. Amin sought benefits for both accidents pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 from The Co-Operators Insurance Company (“The Co-Operators”), the respondent.
2The Co-Operators denied Ms. Amin’s claims for certain benefits for both accidents and, as a result, Ms. Amin filed an application for each accident to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) which, in turn, created two separate Tribunal files.
3At the case conference held on September 30, 2020, the Tribunal ordered that Ms. Amin’s two applications would be heard together moving forward. The details of Ms. Amin’s two applications are as follows:
Tribunal File Number
Date Application Filed with the Tribunal
Date of the Accident
19-010187/AABS
September 17, 2019
January 9, 2017
20-007237/AABS
June 23, 2020
May 1, 2016
4The Co-Operators also raised a preliminary issue at the case conference regarding Ms. Amin’s claim for income replacement benefits (“IRBs”) and two treatment plans set out on her June 23, 2020 application under Tribunal File Number 20-007237/AABS. The Co-Operators submitted that pursuant to s. 56 of the Schedule, Ms. Amin was statute-barred from proceeding with her claim at the Tribunal for IRBs and for two treatment plans because she failed to apply within the limitation period of two years after The Co-Operators’ refusal to pay these benefits. As a result, a written preliminary issue hearing was scheduled.
PRELIMINARY ISSUE
5The following preliminary issue is to be decided:
(i) Is Ms. Amin statute-barred from pursuing the following claims to the Tribunal due to the limitation period in s. 56 of the Schedule:
(a) Her claim for IRBs in the amount of $400.00 per week, which was denied by The Co-Operators on May 27, 2016;
(b) Her claim in the amount of $4,104.09 for physiotherapy and chiropractic services recommended by Alexmuir Wellness Centre in a treatment plan (“OCF-18”) dated October 6, 2016, and denied on October 17, 2016; and
(c) Her claim in the amount of $1,750.00 for a functional abilities evaluation recommended by Alexmuir Wellness Centre in an OCF-18 dated January 17, 2017, and denied on January 24, 2017?
RESULT OF PRELIMINARY ISSUE
6I find that Ms. Amin is statute barred from proceeding with her claims to the Tribunal for IRBs, for entitlement to the October 6, 2016 OCF-18 and also for entitlement to the January 17, 2017 OCF-18 as her application for these benefits was filed with the Tribunal outside of the two-year limitation period set out in the Schedule. I also find that I have no jurisdiction to extend the limitation periods in this matter as requested by Ms. Amin by way of s. 7 of the Licence Appeal Tribunal Act, 1999 (the “LAT Act”).
ANALYSIS
7Under s. 56 of the Schedule, an applicant has two years to commence an application in respect of a denial of benefits from the date that an insurer refuses to pay the amount claimed.
8The Co-Operators denied Ms. Amin’s claim for IRBs on May 27, 2016,2 the October 6, 2016 OCF-18 for chiropractic and physiotherapy services on October 17, 2016,3 and the January 17, 2017 OCF-18 for a functional abilities evaluation on January 24, 2017.4 As there is no dispute that Ms. Amin’s application regarding these claims was filed with the Tribunal on June 23, 2020, I find that Ms. Amin’s application was filed outside of the two-year limitation period under s. 56 of the Schedule for all three issues.
9Ms. Amin did not dispute that her application to the Tribunal regarding her claims for IRBs and entitlement to the two OCF-18s was filed outside of the two-year limitation period. She also did not dispute the sufficiency of The Co-Operator’s denials. Instead, Ms. Amin requested that the Tribunal exercise its discretion under s. 7 of the LAT Act to extend the limitation periods in this matter.
10Section 7 of the LAT Act 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,
(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.
11Ms. Amin relied upon the decision of A.F. v. North Blenheim Mutual Insurance Company5 and submitted that the Tribunal has jurisdiction to extend the time for her to commence her application to the Tribunal for IRBs and entitlement to the October 6, 2016 OCF-18 and to the January 17, 2017 OCF-18.
12At the outset, A.F. along with the reconsideration decision in S.S. v. Certas Home and Auto Insurance6 are both currently under appeal to the Divisional Court. In S.S., the Tribunal held upon reconsideration that s. 7 of the LAT Act does not apply to the Schedule to extend a limitation period. Therefore, there is no direction yet 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 and whether or not it confers jurisdiction to the Tribunal to extend the s. 56 limitation period.
13Nonetheless, I prefer the determination in S.S. over that of A.F. based solely on the principals of statutory interpretation that formed the basis of Adjudicator Neilson’s decision. Adjudicator Neilson found 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” which is the specific term used in s. 7 of the LAT Act. Further, in preferring the decision in S.S. over A.F., I also echo the following statement by Adjudicator Neilson in M.N v. Aviva General Insurance Company7 regarding the decision in A.F.
the Executive Chair was not asked to consider that both “Act” and “regulation” are used in s.3 of the LAT Act, which refers to the duties assigned to the Tribunal “by or under any Act or regulation.” This is very different from s.7 of the LAT Act, where only “Act” is used. If “by or under any Act” is meant to include regulations made under an Act, then the use of “regulation” in s.3 of the LAT Act is redundant. Such an interpretation is contrary to the principles of interpretation…8
14For all of the reasons set out above, I 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.
ORDER
15Based on all of the reasons set out above, Ms. Amin is statute-barred pursuant to s. 56 of the Schedule from continuing with her claims to the Tribunal for IRBs, entitlement to the October 6, 2016 OCF-18 and entitlement to the January 17, 2017 OCF-18 as set out on her June 23, 2020 application. I also find that I have no jurisdiction to extend the limitation periods in this matter by way of s. 7 of the Licence Appeal Tribunal Act, 1999 (the “LAT Act”).
OTHER PROCEDURAL ISSUES
16Pursuant to the Tribunal’s September 30, 2020 Case Conference Report and Order, the remaining issues in dispute for Tribunal file numbers 19-010187/AABS and 20-007237/AABS remain scheduled to proceed to a videoconference hearing on May 25-28, 2021. All of the terms and conditions of any previous orders made by the Tribunal in this matter remain in full force and effect, except as changed by this preliminary issue decision.
Date of Issue: March 9, 2021
________________________
Lindsay Lake
Adjudicator
Footnotes
- O. Reg. 34/10 (the “Schedule”).
- Preliminary Issue Hearing Written Submissions of the Respondent, tab 3.
- Preliminary Issue Hearing Written Submissions of the Respondent, tab 7.
- Preliminary Issue Hearing Written Submissions of the Respondent, tab 10.
- 2017 CanLII 87546 (ON LAT Reconsideration Decision) (“A.F.”).
- 2016 CanLII 153125 (ON LAT Reconsideration Decision) (“S.S.”).
- 2019 CanLII 119731 (ON LAT) (“M.N.”).
- Ibid. at para. 19.