Raveenthiran v. Aviva Insurance Canada, 2021 CanLII 28689

Citation: Raveenthiran v. Aviva Insurance Canada, 2021 ONLAT 19-014703/AABS

Release date: 2021/03/18

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:

Mekala Raveenthiran

Applicant

and

Aviva Insurance Canada

Respondent

DECISION ON A PRELIMINARY ISSUE

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Mekala Raveenthiran, Applicant

Ramya Satkunapalan, Paralegal

For the Respondent:

Raji Kulen, Litigation Specialist

Alexander Dos Reis, Counsel

Interpreter:

Thevamalar Gnanendran (Tamil)

Thayani Gunanathan (Tamil)

HEARD in writing and video conference:

January 14 and 20, 2021

OVERVIEW

1The applicant, Mekala Raveenthiran (“Ms. Raveenthiran”), was injured in an automobile accident on March 18, 2017 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Aviva Insurance Canada (“Aviva”), the respondent.

2On December 24, 2019, Ms. Raveenthiran submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to determine, among other issues, her entitlement to weekly income replacement benefits (“IRBs”).

3At the case conference held on May 11, 2020, Aviva raised a preliminary issue. Aviva submitted that, pursuant to s. 56 of the Schedule, Ms. Raveenthiran was statute-barred from proceeding with her claim at the Tribunal for IRBs because she failed to apply within the limitation period of two years after Aviva’s refusal to pay IRBs. As a result, a written preliminary issue hearing was initially scheduled but was later converted to a combination hearing with a videoconference portion to allow for cross-examination of witnesses on their affidavits.

PRELIMINARY ISSUE

4The following preliminary issue is to be decided:

(i) Is Ms. Raveenthiran statute-barred from pursuing her claim for IRBs to the Tribunal due to the limitation period in s. 56 of the Schedule?

RESULT OF PRELIMINARY ISSUE

5I find that Ms. Raveenthiran’s claim for IRBs may proceed as it is not barred under s. 56 of the Schedule.

FACTS

6On July 7, 2017, Aviva notified Ms. Raveenthiran that she was eligible for IRBs in the amount of $195.30 per week effective July 5, 2017.²

7On July 24, 2017, Aviva provided notice to Ms. Raveenthiran of her required attendance at an orthopaedic insurer’s exmaination (“IE”) assessment with Dr. Fathi Abuzgaya, orthopaedic surgeon, on August 2, 2017. The purpose of this IE assessment was to review Ms. Raveenthiran’s ongoing entitlement to IRBs and to provide an opinion regarding the reasonableness and necessity of a proposed treatment plan (“OCF-18”) dated July 11, 2017.³

8On August 2, 2017, Ms. Raveenthiran attended the IE assessment with Dr. Abuzgaya. Following the assessment, Dr. Abuzgaya opined that:

(i) Ms. Raveenthiran did not suffer a substantial inability to perform the essential demands of her pre-accident employment as a result of the accident; and

(ii) The July 11, 2017 OCF-18 was not reasonable and necessary.⁴

9Following Dr. Abuzgaya’s IE assessment, Ryan Johnston, an adjuster with Aviva who had carriage of Ms. Raveenthiran’s file at the time, prepared two separate correspondences correctly addressed to Ms. Raveenthiran dated August 16, 2017.

10The first August 16, 2017 correspondence was an explaination of beneifts (“EOB”) pertaining to the July 11, 2017 OCF-18 (the “August 16, 2017 treatment plan EOB letter”). This letter stated that it was copied to Allied Community Legal Services (“Allied”), Ms. Raveenthiran’s legal representatives, and to Alexmuir Wellness Centre Inc. (“Alexmuir Wellness”). This 6-page letter listed an “Insurer’s Examination” as an enclosure and stated as follows:

Please review the enclosed insurer's examination completed by Dr. Abuzgaya under section 44 of the Statutory Accident Benefits Schedule. The assessor reviewed the Treatment Plan (OCF-18) submitted by Alexmuir Wellness Centre Inc. dated July 11, 2017…They determined the treatment recommended is not reasonable and necessary from the injuries sustained in the motor vehicle accident. Therefore, Aviva will not fund any treatment incurred relating to this treatment plan.⁵

11The second August 16, 2017 correspondence was an EOB regarding the stoppage of Ms. Raveenthiran’s IRB payments (the “August 16, 2017 IRB stoppage letter”). This 5-page letter listed “Insurer’s Examination Report” as an enclosure and stated that it was copied to Allied and Alexmuir Wellness. Included in this letter was the following statement:

Please find the enclosed insurer's examination completedby [sic] Dr. Abuzgaya under secion [sic] 44 of the Statutory Accident Benefits Schedule. The assessors have concluded you do not suffer a substantial inability to perform the essential tasks of your employment or self-employment. Therefore, Aviva will not consider further income replacement benefits past August 30, 2017.⁶

12The parties disagree when the August 16, 2017 IRB stoppage letter was delivered to Ms. Raveenthiran which, in turn, determines when the two-year limitation period in s. 56 of the Schedule commences. The delivery date of the August 16, 2017 IRB stoppage letter is the key factual issue to be determined in this preliminary issue hearing as Ms. Raveenthiran does not dispute that the August 16, 2017 IRB stoppage letter contained a clear and unequivocal termination of her IRBs.

13Aviva submitted that the August 16, 2017 IRB stoppage letter triggered the two-year limitation period to begin and, therefore, Ms. Raveenthiran had to apply to the Tribunal by August 16, 2019. As such, Aviva’s position is that Ms. Raveenthiran’s application was statute-barred since it was filed on December 24, 2019, some four months after the limitation period expired.⁷

14On the other hand, Ms. Raveenthiran initially submitted that she, along with Allied and Alexmuir Wellness, never received the August 16, 2017 IRB stoppage letter from Aviva and, therefore, the two-year limitation period had yet to begin to run. The evidence shows, however, that Counsel for Aviva emailed a copy of the August 16, 2017 IRB stoppage letter to Navaneethan Kanthasamy, one of Ms. Raveenthiran’s representatives, at Allied’s general email address on February 20, 2020.⁸

15Therefore, I must determine if the limitation period began on August 16, 2017, February 20, 2020 or on some other date to determine if Ms. Raveenthiran is statute-barred from proceeding with her application for a determination of her entitlement to IRBs.

ANALYSIS

16A denial of a benefit by an insurer must be delivered to an insured person in accordance with s. 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 s. 64 that the two-year limitation period set out in s. 56 of the Schedule begins to run.

17For the reasons that follow, I find that Aviva did not deliver the August 16, 2017 IRB stoppage letter to Ms. Raveenthiran in accordance with s. 64 of the Schedule until February 20, 2020. Therefore, the two-year limitation period for Ms. Raveenthiran to apply to the Tribunal to dispute Aviva’s decision regarding her IRBs does not expire until February 19, 2022.

Delivery of the August 16, 2017 IRB stoppage letter to Ms. Raveenthiran via mail

18I find that Aviva has failed to prove on a balance of probabilities that it delivered the August 16, 2017 IRB stoppage letter to Ms. Raveenthiran by mail.

19Aviva’s adjuster, Mr. Johnston, swore an affidavit dated July 2, 2020 and attended the videoconference portion of the hearing for the purposes of cross-examination. Mr. Johnston affirmed that, on August 16, 2017, he “submitted” the August 16, 2017 IRB stoppage letter along with Dr. Abuzgaya’s August 14, 2017 IE report to Ms. Raveenthiran by mailing a copy of these documents to her at the address listed on the August 16, 2017 IRB stoppage letter.⁹

20Aviva submits that because Mr. Johnston mailed the August 16, 2017 IRB stoppage letter to Ms. Raveenthiran, that the onus has now shifted to Ms. Raveenthiran to prove on a balance of probabilities that she did not receive the August 16, 2017 IRB stoppage letter pursuant to s. 64(18) of the Schedule.

21Aviva’s position regarding s. 64(18), however, ignores that a finding is required on a balance of probabilities that the August 16, 2017 IRB stoppage letter was delivered by ordinary mail before the onus shifts to Ms. Raveenthiran. In this matter, I find that Aviva has failed to prove that the August 16, 2017 IRB stoppage letter was sent via ordinary mail to Ms. Raveenthiran as Mr. Johnston testified that he could not confirm if the August 16, 2017 IRB stoppage letter was sent via ordinary mail, registered mail or by courier to Ms. Raveenthiran.

22Mr. Johnston’s affidavit and testimony are also of little weight in determining if and how he mailed out the August 16, 2017 IRB stoppage letter to Ms. Raveenthiran for the following reasons:

(i) The majority of Mr. Johnston’s answers on cross-exmaination at the videoconference portion of the hearing were concerning his usual practices. Mr. Johnston also confirmed that he had no independent recollection of not only how he sent the August 16, 2017 IRB stoppage letter to Ms. Raveenthiran and also to Allied and Alexmuir Wellness. While the lack of particulars from Mr. Johnston is understandable given the sheer number of correspondences that he would have sent out since August 16, 2017, it is not sufficient in my opinion to overcome Aviva’s onus to establish, on a balance of probabilities, delivery in accordance with the Schedule by only stating what “would have” happened; and

(ii) Mr. Johnston relied heavily upon his log notes as confirmation that he had sent out the August 16, 2017 IRB stoppage letter. His log notes, however, only state “sent eob & IE to clmt, clinic and rep”¹⁰ in an August 16, 2017 entry. The August 16, 2017 log note entry contains no information regarding the method of delivery of the August 16, 2017 IRB stoppage letter to any of the parties which, in my opinion, could have been easily noted by Mr. Johnston but for whatever reason was not. It is also not clear if both of Aviva’s August 16, 2017 correspondences were sent out on this date as the August 16, 2017 log note entry only refers to an EOB in the singular but discusses both of Mr. Johnston’s determinations regarding the July 11, 2017 OCF-18 and Ms. Raveenthiran’s entitlement to IRBs.

23For all of the reasons set out above, I find that Aviva has not proven on a balance of probabilities that the August 16, 2017 IRB stoppage letter was mailed via ordinary mail to Ms. Raveenthiran such that the onus would shift to her to disprove receiving the letter pursuant to s. 64(18) of the Schedule. There is also no evidence before me which I place weight on that confirms how the August 16, 2017 IRB stoppage letter was sent to Ms. Raveenthiran.

Delivery of the August 16, 2017 IRB stoppage letter to Allied and Alexmuir Wellness

24I also find that Aviva has failed to prove on a balance of probabilities that it delivered the August 16, 2017 IRB stoppage letter to Allied and Alexmuir Wellness either by fax or by mail.

25Mr. Johnston also swore that, on August 16, 2017, he faxed the August 16, 2017 IRB stoppage letter to both Allied and Alexmiur Wellness but that he could not locate a fax confirmation sheet for either transmission.¹¹ Mr. Johnston also affirmed that, if a fax confirmation form was not “immediately provided” to him, that he would have mailed out a copy of the August 16, 2017 IRB stoppage letter to Allied and Alexmuir Wellness based upon his usual practices.¹²

26Firstly, I find that Aviva failed to comply with the requirements of s. 64(19) of the Schedule to effect delivery of the August 16, 2017 IRB stoppage letter via fax to Allied or Alexmuir Wellness as there is no fax confirmation page, or even a fax cover sheet, before me for the August 16, 2017 IRB stoppage letter.

27Second, I do not accept Mr. Johnston’s evidence that he mailed out the August 16, 2017 IRB stoppage letter to Allied and Alexmuir at the addresses stated in his affidavit. As discussed above in paragraph 22, Mr. Johnston has no independent recollection surrounding the delivery of the August 16, 2017 IRB stoppage letter and there is no other corroborating documentation supporting his claim that he mailed out the letter to Allied and Alexmuir Wellness at the addresses set out in the evidence before me.

28Additionally, Mr. Johnston testified that he would only complete log note entries regarding delivery of a document after it was sent. This raises the question as to why, in this situation where there was a deviation from his usual practice of faxing documents to legal representatives and treating clinics, a more detailed log note was not made that he mailed Allied and Alexmuir the August 16, 2017 IRB stoppage letter. Mr. Johnston’s failure to record the unsuccessful fax transmissions to Allied and Alexmuir Wellness in his log notes is also contrary to Mr. Johnston’s own testimony that he would try to capture situations in his log notes where, for example, fax communication does not go through to parties.

The September 22, 2017 phone call

29The parties also disagree about whether or not a phone call occurred between Cheryl Ali, a former legal assistant at Allied, and Mr. Johnston on September 22, 2017. In any event, I find that the alleged September 22, 2017 phone call has no effect on the start date of the two-year limitation period, as Aviva had still not provided a written notice in accordance with the requirements of s. 64 of the Schedule communicating its stoppage of Ms. Raveenthiran’s IRBs as of September 22, 2017.

30Ms. Ali swore an affidavit dated July 16, 2020 in which she affirmed that she received a phone call from Ms. Raveenthiran on September 22, 2017 at 9:25 a.m. advising that she had not received her IRB payment. Ms. Ali affirmed that she informed Ms. Raveenthiran that she would follow up with Aviva.

31Ms. Ali then stated in her affidavit that she called Mr. Johnston on September 22, 2017 at 9:28 a.m. and, that during this phone call, Mr. Johnston informed her that a response regarding Ms. Raveenthiran’s IRBs was sent out on August 16, 2017. Ms. Ali affirmed that she advised Mr. Johnston that only the August 16, 2017 treatment plan EOB letter had been received but nothing related to IRBs had been received by Ms. Raveenthiran. Ms. Ali’s affidavit stated that Mr. Johnston advised that he would re-fax the August 16, 2017 IRB stoppage letter.¹³

32Mr. Johnston affirmed in his affidavit that he did not recall having a phone call on September 22, 2017 with any representatives of Allied or with anyone by the name of Cheryl or recall being asked to re-fax the August 16, 2017 IRB stoppage letter.¹⁴ Mr. Johnston also affirmed that there was no entry in his log notes of the September 22, 2017 phone call and that, had he received such a call on this date or any other date pertaining to Ms. Raveenthiran’s file, he would have made a log note entry to this effect.

33Despite Mr. Johnston’s failure to recall the September 22, 2017 call and the absence of any entries in his log notes of this call, Aviva relied upon this phone call in its submissions to argue that Allied would have been well aware that Aviva had stopped paying IRBs to Ms. Raveenthiran as of September 22, 2017 and, as a result, a limitation period was indeed running.¹⁵

34Regardless of whether or not the September 22, 2017 phone call took place between Ms. Ali and Mr. Johnston, simply being aware that IRB payments were not being made does not meet the requirement that a denial must be in writing under s. 64(2) of the Schedule. Therefore, I find that Aviva had still not provided a written notice in accordance with the requirements of s. 64 of the Schedule as of September 22, 2017 as there is no evidence before me that Mr. Johnston re-faxed the August 16, 2017 IRB stoppage letter to Allied or provided any other written notice of the IRB stoppage to Ms. Raveenthiran at this time.

The April 2018 phone call

35There is also disagreement between the parties regarding a further telephone call in April 2018. Mr. Johnston affirmed that, on April 23, 2018, a representative from Allied called him to discuss the commencement date of Ms. Raveenthiran’s IRB payments. Ms. Raveenthiran’s position is that this call took place on April 24, 2018. In any event, Aviva submits that, because Allied’s representative did not request the August 16, 2017 IRB stoppage letter during the April 2018 phone call, this suggested that Allied had in fact received the August 16, 2017 IRB stoppage letter as of April 2018. Aviva maintains that this conclusion is strengthened by Mr. Johnston’s affidavit evidence that at no point during the April 2018 call did Allied’s representative suggest that it or Ms. Raveenthiran had not received the August 16, 2017 IRB stoppage letter.¹⁶

36I do not agree with Aviva that a reasonable conclusion to draw from Allied’s silence on the August 16, 2017 IRB repayment letter during the April 2018 phone call translates into confirmation that it had received the August 16, 2017 IRB stoppage letter. To interpret Allied’s silence for Aviva’s own benefit is not in accordance with the consumer protection nature of the Schedule and does not discharge Aviva’s obligation to prove that it provided written notice of IRBs stoppage to Ms. Raveenthiran under s. 64(2) of the Schedule.

Delivery of the August 16, 2017 IRB stoppage letter to Allied via email

37I find that the August 16, 2017 IRB stoppage letter was not delivered to Ms. Raveenthiran in accordance with s. 64 of the Schedule until it was emailed by Aviva’s Counsel on February 20, 2020 to Mr. Kanthasamy, a representative at Allied.

38While delivery of a notice by email is only permitted if the intended recipient of the document consents to delivery in that manner,¹⁷ I find that Mr. Kanthasamy’s responding email dated February 21, 2020 provided consent to receive documents from Aviva via email.¹⁸ In his February 21, 2020 email, Mr. Kanthasamy acknowledged receipt of the February 20, 2020 email, which had attached to it the August 16, 2017 IRB stoppage letter, and requested that further documentation from Aviva be forwarded to him, indicating to me that “forwarding” meant forwarding via email.

Did Ms. Raveenthiran apply to the Tribunal within the two-year limitation period?

39As I have found that the August 16, 2017 IRB stoppage letter was not delivered in accordance with s. 64 of the Schedule until February 20, 2020, I find that Ms. Raveenthiran’s limitation period to apply to the Tribunal to dispute Aviva’s decision regarding her IRBs would expire on February 19, 2022.

40As there is no dispute that Ms. Raveenthiran’s application for a determination of, among other things, her entitlement to IRBs was received by the Tribunal on December 24, 2019, I find that Ms. Raveenthiran filed her application prior to the expiry of the two-year limitation period set out in s. 56 of the Schedule.

CONCLUSION

41Ms. Raveenthiran is not statute-barred from proceeding with her application for IRBs to the Tribunal as I find that she filed her application to the Tribunal before the expiry of the two-year limitation period.

OTHER PROCEDURAL ISSUES

42As the next step following the decision on the preliminary issue was not set out in the Tribunal’s May 11, 2020 Case Conference Report and Order, I order that within 30 days of the release of this decision on a preliminary issue that the parties shall contact the Tribunal to arrange for a resumption of the case conference to schedule a hearing in this matter to determine the remaining substantive issues in dispute.

Date of Issue: March 18, 2021

________________________

Lindsay Lake, Adjudicator

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 2Preliminary Issue-Written Hearing Submissions of the Applicant, tab 7.
3. 3Preliminary Issue-Written Hearing Submissions of the Applicant, tab 9.
4. 4Section 44 Examination Independent Orthopaedic Evaluation Report by Dr. Fathi Abuzgaya dated August 14, 2017, Preliminary Issue Hearing Submissions of the Respondent, tab 1K, page 10.
5. 5Preliminary Issue-Written Hearing Submissions of the Applicant, tab 10.
6. 6Preliminary Issue Hearing Submissions of the Respondent, tab 1J,
7. 7Preliminary Issue Hearing Submissions of the Respondent, para. 25.
8. 8Reply Submissions of the Respondent, tab 8a.
9. 9Affidavit of Ryan Johnston dated July 2, 2020, para. 9.
10. 10Preliminary Issue Hearing Submissions of the Respondent, tab 1I.
11. 11Ibid. at paras. 10 and 14.
12. 12Ibid.
13. 13Affidavit of Cheryl Ali dated July 16, 2020, Preliminary Issue-Written Hearing Submissions of the Applicant, tab 13, para. 7.
14. 14Preliminary Issue Hearing Submissions of the Respondent, tab 1, para. 17.
15. 15Preliminary Issue Hearing Submissions of the Respondent, para. 22.
16. 16Preliminary Issue Hearing Submissions of the Respondent, para. 36.
17. 17Schedule, s. 64(2)(e).
18. 18Reply Submissions of the Respondent, tab 8a.