Rathakrishnan v. Aviva Insurance Company, 2021 CanLII 30854

Citation: Rathakrishnan v. Aviva Insurance Company, 2021 ONLAT 19-009539/AABS

Release date: 03/30/2021

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:

Manjuladevi Rathakrishnan

Applicant

and

Aviva Insurance Company

Respondent

PRELIMINARY DECISION

ADJUDICATOR:

Monica Chakravarti

APPEARANCES:

For the Applicant:

Vismay H. Merja, Counsel

For the Respondent:

Arijana B. Schrauwen Counsel

HEARD:

Via Written Submission

OVERVIEW

1The applicant was involved in a motor vehicle accident on November 21, 2016 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (“Schedule”). The respondent denied these benefits and the applicant then filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to resolve the dispute.

2On April 9, 2020, the parties attended at a case conference, during which the respondent raised a preliminary issue, namely whether the applicant is statute barred from proceeding with her claim for income replacement benefits (IRB) pursuant to section 56 of the Schedule. Section 56 of the Schedule states in part that the applicant must bring his application to the Tribunal within two years of the insurer’s refusal to pay the amount claimed. This is colloquially known as the “limitation period” and will be referred to as such.

3This decision is a preliminary issue that will decide if the substantive issue of the applicant’s entitlement to IRBs can move forward or if it statute barred under the Schedule.

ISSUES TO BE DECIDED

4Pursuant to s. 56 of the Schedule, is the applicant barred from proceeding with her claim for income replacement benefits?

RESULT

5Based on the reasons below and pursuant to Section 56 of the Schedule, the applicant is statute barred from proceeding with her claim for IRBs as she failed to commence her application within the two years after a valid denial from the respondent.

ANALYSIS

6Under section 56 of the Schedule, an applicant has two years from the date the insurer refuses to pay an amount claimed to commence an application with respect to the denial of the benefits that are refused. The applicant agrees that notice of denial for the IRBs was on August 3, 2017 (“Notice of Denial”).² The parties also agree that the applicant filed her application to appeal with the Tribunal on August 23, 2019.³ This is more than 2 years after the denial and the expiry of the limitation period.

7The applicant seeks relief from the expiry of the limitation period found in section 56 of the Schedule and submits that under section 7 of the Licence Appeal Tribunal Act, 1999⁴ (the “LAT Act”) the Tribunal has discretion to extend the limitation and seeks that the Tribunal exercise this discretion.

8Section 7 of the LAT Act states:

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.

9The jurisprudence is conflicting on the issue of whether the Tribunal has the discretion to extend the limitation period found in the Schedule pursuant to section 7 of the LAT Act and the Court decisions that could assist in determination of this issue are still pending.

10The respondent submits that the Tribunal does not have jurisdiction to extend the limitation period as the limitation period is to be applied strictly. The respondent submits that the Tribunal recognized that it does not have discretionary authority under s.7 of the LAT Act in its reconsideration decision of S.S. v. Certas Home and Auto Insurance Company⁵. Further, in the alternative, even if the Tribunal exercises its discretion (which the respondent submits that the Tribunal does not have), the respondent submits that the applicant has provided no evidentiary basis to warrant an extension of the limitation period.

11The applicant submits that I adopt the reasoning in S.W. v Aviva General Insurance Company⁶ wherein the adjudicator held that the reasoning in the S.S. decision was an outlier and quiet narrow. The applicant submits that S.S. is not the applicable case to follow.

12In my view, assuming that the tribunal has jurisdiction to extend the limitation period, it is unlikely to exercise that jurisdiction if the applicant has provided insufficient grounds to satisfy the tribunal that the justice of the case warrants an extension of the limitation period.

13To extend the limitation period, the applicant relies on the Tribunal’s decision of A.F. v. North Blenheim⁷. In North Blenheim the Tribunal extended the limitation period and followed the Divisional Court decision of Manuel v. Registrar, Motor Vehicle Dealers Act, 2002⁸. The Divisional Court in Manuel (as followed in North Blenheim) 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 four factors to consider in making this determination are:

1. The existence of a bone fide intention to appeal within the appeal period;

2. The length of the delay;

3. Prejudice to the other party; and

4. The merits of the appeal.

14The applicant notes that in North Blenheim the Tribunal held that all four factors above do not need to be met but that the four factors above are to assist the adjudicator.

Bona Fide Intention

15The applicant submits that she had a bona fide intention to appeal the denial. She submits that her bona fide intention is demonstrated by her retaining counsel following the Notice of Denial, her continued request for the full accident benefits (AB) file, and requesting the re-opening of her claim when same had been closed by the respondent.

16I find, based on the evidence, that the applicant has not demonstrated a bona fide intention to appeal the denial of IRBs within the limitation period.

17Contrary to the applicant’s submissions, the applicant had in fact retained counsel prior to the Notice of Denial of August 3, 2017. There is a letter to the respondent dated June 26, 2017 from the applicant’s counsel’s office clearly indicating that they have been retained by the applicant with respect to her accident benefits claim and providing an authorization for, amongst other things, correspondence to be provided to her counsel’s office. As well the Notice of Denial of August 2, 2017 was not only sent to the applicant but also sent to her counsel.

18The applicant’s main argument is that the respondent had delayed sending the AB file as requested and this led to the delay by the applicant in appealing the denial of the IRBs.

19Following the denial of August 3, 2017, the first request for the AB file was on October 12, 2018, more than one year following the Notice of Denial. An email from applicant’s counsel’s office to the respondent of June 21, 2019 indicates that prior to June 21, 2019 the AB file was sent on CD however, the applicant’s counsel’s office could not access it as the password to access same did not work. On June 21, 2019 following this email the applicant through her counsel’s office sent another letter requesting the AB file. The respondent points out that it took eight months between the first request of October 12, 2018 and the second request of June 21, 2019.

20The applicant states that on July 5, 2019 the respondent provided an “accessible” copy of the AB file. Therefore, the applicant had the AB file prior to the expiry of the limitation period of August 3, 2019 yet failed to file her appeal.

21The applicant relies on the motion decision of 17-001681 v Motor Vehicle Accident Claims Fund (MVACF)⁹ and asks that I follow the reasoning stated by the adjudicator in that case that: “It would not be in line with the principles of natural justice for an individual who has been denied benefits to not have the opportunity to examine the decision maker’s process and reasons for denying those benefits, which are contained in the accident benefit file.”

22With respect to the motion decision above I note that it was not used to extend the limitation period or denote a bona fide intention to appeal, but rather it was made during the course of an appeal of denial of benefits to obtain the MVACF file. In other words, it was a motion that was brought after the applicant in that matter filed the application with the Tribunal. In this case the applicant did nothing to assert her rights to obtain an AB file or dispute her IRBs other than to send two letters that she submits the respondent failed to properly reply to.

23Further the applicant was provided with the AB file just shy of one month prior to the expiry of the limitation but she has provided no evidence, explanation, submissions or point to anything in the AB file that she was seeking in order to file her application with the Tribunal. As well the applicant submits that AB file was over 800 pages but, I find that this is not persuasive for two reasons. First, there is no evidence of the size of the AB file. The applicant simply submits that the AB file was over 800 pages, yet the evidence shows that the file was closed for a period of time by the respondent. The applicant provides no evidence of size of the AB file. Even if I am wrong and the AB file was in fact over 800 pages, there is no evidence that the sheer volume of the AB file prevented the applicant from filing her appeal within the limitation period. The decision to deny IRBs was done within seven months of the accident and (as discussed below) the applicant never communicated to the respondent an intention to appeal the decision. Therefore, there is no evidence that between receipt of the AB file (July 5, 2019) and the expiry of the limitation period (August 3, 2019) the applicant was prevented from reviewing the pertinent (assuming that there were) parts of the AB file because there were a copious amount of documents to review.

24Further the respondent submits, and I agree, that it is unclear how requesting a copy of the AB file from the respondent connotes an intention to dispute the IRB denial. There is no evidence that the applicant had done anything to signal to the respondent that she was intending on filing the application to dispute the denial of her IRBs or that she had taken any steps. The fact that she opened an otherwise closed file in my view provides evidence that she was aware that she could be entitled to benefits pursuant to the Schedule, yet she failed to do anything with respect to her IRBs.

25Based on the above I find that there was no bona fide intention to appeal.

The Length of the Delay, Prejudice to the Other Party, Merits of the Appeal

26The applicant submits that the appeal was filed 20 days past the limitation period. This amount of time is not significant and that no prejudice has befallen the respondent.

27The applicant relies on the Tribunal’s decision of 16-001691 [J.P.R. by his Litigation Guardian v State Farm Mutual Automobile Insurance Company¹⁰ (“J.P.R. v. State Farm”) that held that despite a 42 day delay in filing the appeal that the prejudice of the applicant losing the potential for entitlement to two years of IRB outweighed the prejudice to the respondent.

28I find that J.P.R. v. State Farm is distinguishable from the case at hand. In J.P.R. v. State Farm the applicant’s delay was 42 days in the context of the applicant having declining capacity, beset with issues of drug abuse/addiction and lacking the capacity to instruct his counsel. This is far from the fact scenario here. In this matter there is no explanation provided as to why the applicant could not file her appeal after the denial that included the insurer examinations that opined that she did not meet the test for IRBs; why she could not file her application while awaiting for the AB file or even after receipt of the AB file prior to review of same. There is no indication that she lacked any capacity to understand the denial or seek the advice from the counsel she had retained prior to the denial. In this matter the applicant did nothing to move her matter forward despite having the benefit of counsel.

29The applicant also relies on the decision of 17-007103 [W.R] v. Unifund Assurance Company¹¹(“W.R. v Unifund”) wherein, despite the delay of six days the application was allowed to continue. Again, the decision of W.R. v Unifund is distinguishable from the facts of this case. In W.R. v Unifund the applicant was under a mistaken belief that his limitation period was based on the stoppage date which was 15 days after the denial date. Based on this mistake the applicant, W.R. brought his application within two years of the stoppage date but six days outside of the limitation date (based on the denial letter). The applicant in this matter was not under any mistaken belief or misunderstanding of the date of denial.

30Further, the applicant has not adequately explained the length of delay and the need for the AB file to appeal the denial. I find that the delay of 20 days is not an insignificant amount of time especially when from the date of the denial of August 3, 2017 to the date of the application the applicant has never provided any indication to the respondent that she intended to appeal the denial of the IRBs. The prejudice to a party is that they are unable to rely upon the Schedule or the limitation period. I agree with the respondent that the mere fact that they must respond to this application where there is no excuse or reason from the applicant for the delay in filing an application following the Notice of Denial is in and of itself prejudicial, however I find that this prejudice is minimal in the context of a 20 day delay.

31In terms of the merits of the appeal the respondent points to, and I accept, the evidence of the applicant’s employment files that show that the applicant worked as a personal support worker for two employers and at Tim Hortons from as late as December 2017 up until this hearing.¹² This evidence does not make her appeal meritorious enough for the Tribunal to extend the limitation period in the applicant’s favour because the evidence file shows that the applicant would likely not to be found to have a substantial inability to perform the tasks of her pre-accident employment and it would show that the applicant similarly may not be successful in proving on a balance that she is unable to perform any employment.

Tribunal’s Discretion

32In determining if the justice of the case warrants an extension of the limitation period all four factors in Manuel do not need to be satisfied, however an analysis and balancing all the factors as discussed above is required. After a consideration of the four factors, the applicant was unable to direct me to evidence that showed she had a bona fide intent to appeal within the limitation period or an explanation for the delay that was supported by the evidence. It is also doubtful whether there may be any merit in the appeal at this stage. Despite my finding that the prejudice to the respondent would be minimal, in my opinion, no one factor weighs more heavily than the others, but after considering all four factors together, I conclude that the justice of the case does not warrant extending the limitation period.

33It is not necessary for me to determine if the Tribunal has discretion to extend the limitation period because the consequence of exercising this discretion would be that the applicant did not meet her onus to show that the extension is warranted and therefore is barred from proceeding with her claim for IRBs. This is the same conclusion that would follow if the Tribunal has no discretion to extend the limitation period as the application was filed more than 2 years following the Notice of Denial and the applicant is consequently barred from proceeding with her claim for IRBs.

ORDER

34Pursuant to section 56 of the Schedule, the applicant is statute barred from proceeding with her claim for IRBs since she failed to commence her application within the two years after a valid denial from the respondent. If the Tribunal does have jurisdiction to extend the limitation period pursuant to section 7 of the LAT Act, the applicant did not meet her onus to show that such relief is warranted.

Footnotes

1. 1O.Reg. 34/10, as amended.
2. 2Applicant’s submissions paragraph 6
3. 3Applicant’s submissions paragraph 13.
4. 4S.O. 1999, Chapter 12 Schedule G
5. 5S.S. v. Certas Home and Auto Insurance, [2016] CanLII 153125 (ON LAT) (Reconsideration)
6. 6S.W. v Aviva General Insurance Company [2020] CanLII 63569 (ON LAT) (Reconsideration).
7. 7A.F. v. North Blenheim Mutual Insurance Company, 2017 CanLII 87546 (ON LAT) (Reconsideration).
8. 8Manuel v Registrar, Motor Vehicle Dealers Act, 2002, [2012] ONSC 1492.
9. 92017 CanLII 87161 (ON LAT) at para. 23.
10. 102018 CanLII 141008 (ON LAT) (Reconsideration)
11. 112019 CanLII 40291 (ON LAT) (Reconsideration).
12. 12Respondent’s Book of Documents Tab T.