Cigdem Polat v. TD Home and Auto Insurance Company, 2021 CanLII 35573

Citation: Polat v. TD Home and Auto Insurance Company, 2021 ONLAT 20-002912/AABS-PI

Release date: 04/30/2021

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:

Cigdem Polat

Applicant

and

TD Home and Auto Insurance Company

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Pasquale Maiolo, Paralegal (No submissions)

For the Respondent:

Elisabeth van Rensburg, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was involved in an accident on April 9, 2015, and sought an income replacement benefit (“IRB”) from the respondent, TD, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ TD paid the IRB until April 24, 2017 and then stopped payment based on s. 44 insurer’s examinations that determined she no longer met the applicable test.

2TD’s denial letter stated that the applicant did not suffer a complete inability to engage in any employment for which she was reasonably suited by education, training or experience as a result of the accident of April 9, 2015. The letter outlined the applicant’s right to dispute TD’s determination and highlighted the two-year limitation period to do so.

3On April 6, 2018, the applicant submitted an application to the Tribunal, disputing TD’s denial of her IRBs beyond 104 weeks. However, neither the applicant nor her representative attended the case conference or the resumption that was scheduled to allow for her participation and a Case Conference Summary was never filed. The applicant withdrew her application on May 14, 2019. TD asserts that the applicant never requested that the limitation period be tolled or extended prior to her withdrawal of that application.

4Instead, on March 26, 2020, the applicant commenced the current application, which is again disputing TD’s denial of her entitlement to post-104 week IRBs. While the parties attended the case conference on October 7, 2020, the applicant did not file a Case Conference Summary and did not comply with the Tribunal’s order to do so. The Order scheduled a written preliminary issue hearing for February 8, 2021 to determine whether the applicant’s claim was statute-barred under s. 56 of the Schedule.

5The applicant failed to file written submissions or evidence by her deadline of January 11, 2021 and did not file a reply to TD’s submissions that were filed timely on January 25, 2021. The Tribunal has made numerous attempts to contact the applicant and her representative without success.

PRELIMINARY ISSUES IN DISPUTE

6The Case Conference Order identified the issues in dispute as follows:

i. Is the applicant barred from proceeding with her claim for IRBs as she failed to commence her application within two years after TD’s refusal to pay the amount claimed?

ii. TD also seeks an order dismissing the application for procedural delay and awarding costs to date.

RESULT

7The applicant is statute-barred under s. 56 of the Schedule from proceeding with her IRB claim as she failed to appeal TD’s valid denial within the two-year limitation period. TD is entitled to costs in the amount of $250.

ANALYSIS

Section 56

8Section 56 of the Schedule states that an application under s. 280 of the Insurance Act shall be commenced within two years after the insurer's refusal to pay the amount claimed. To trigger the limitation period, the denial must be in writing and found to be clear and unequivocal. The denial letter must be straightforward, in clear language, must provide information about the different stages of the dispute process, which an unsophisticated person can understand, and include information about relevant time limits.²

9I agree with TD that its denial letter dated April 24, 2017 was clear and unequivocal. It provided the reasons for the stoppage, enclosed the dispute form and notified the applicant of the two-year limitation period. Indeed, that the applicant applied to the Tribunal and ultimately withdrew her first application within the two-year limitation period suggests, in my view, that she was aware of the limitation period. I note that she has also been represented at all material times. To this end, I agree that the limitation period to dispute the IRB denial expired on April 24, 2019.

10As the applicant did not file her written submissions or evidence, it is unclear what her position is on the limitation period or what prompted her to reapply to the Tribunal nearly 11 months after the expiration of the limitation period and after withdrawing her initial application for same in May 2019. TD submits that it did not agree to waive the limitation period when the applicant withdrew her initial application. It advises that at no point has the applicant proposed an extension or tolling agreement that would allow her to proceed with her claim on consent. I have no basis to dispute these assertions

11In any case, I agree with TD that the limitation period continued to run notwithstanding the applicant’s withdrawal of her initial application. None of the Statutory Powers Procedure Act, the Licence Appeal Tribunal Act, nor the Tribunal’s Common Rules provide any authority for the Tribunal, or an avenue for a party, to revive or renew a previously withdrawn application in order to meet a limitation period. Further, I was not directed to any authority to suggest that an initial application submitted within the limitation period but then later withdrawn somehow crystallizes a later claim in order to circumvent s. 56.

12To its credit, TD did identify s. 7 of the Licence Appeal Tribunal Act and the Court of Appeal’s decision in Tomec v. Economical Insurance Company, 2019 ONCA 882 as potential lifelines for the applicant’s claim. Section 7 provides the Tribunal with discretion to extend a limitation period based on four factors. However, the applicant has not requested an extension and did not offer substantive submissions on the four factors to discharge her onus. In a similar vein, Tomec and the doctrine of discoverability is not applicable here, as the IRBs in dispute were not pre-emptively denied. Rather, the applicant applied for and received IRBs prior to TD denying ongoing entitlement based on a s. 44 examination, so it cannot be said that the applicant’s claim was not discovered until sometime later.

13Accordingly, for these reasons, and in the absence of submissions from the applicant, I find the applicant’s claims are statute-barred under s. 56, as she failed to dispute TD’s valid denial within the two-year limitation period and has not presented a case. As this decision extinguishes the only benefit claim in her application, it follows that the application is dismissed.

Costs

14TD sought costs pursuant to Rule 19 of the Tribunal’s Common Rules. Under Rule 19, the Tribunal may order costs where one party has acted unreasonably, frivolously, vexatiously or in bad faith. TD submits that the application is frivolous and is an abuse of process due to the applicant's conduct throughout the course of the proceedings and in her previous Tribunal application that was withdrawn at the case conference stage. TD submits that her failure to attend case conferences, her failure to comply with the Tribunal's Orders, failure to submit a Case Conference Summary in either application, and her failure to provide written submissions or evidence in support of her position in this hearing are grounds for a costs order in the amount of $500 plus HST.

15I find a costs order in the amount of $250 is appropriate due to the applicant’s concerning pattern of applying to the Tribunal and then failing to comply with Tribunal orders and neglecting to participate in the proceedings. The applicant’s first application was withdrawn one year after filing and she never attended a case conference despite the Tribunal scheduling resumptions to allow for her participation. The applicant’s current application was filed beyond the two-year limitation period and she failed to file a case conference summary or written submissions for this preliminary issue hearing. In my view, this order considers the impact on the applicant while providing deterrence against the kind of unreasonable and frivolous conduct that interfered with the Tribunal’s ability to carry out a fair, efficient and effective process.

ORDER

16The applicant is statute-barred from proceeding with her claim under s. 56 as she failed to appeal TD’s valid denial within the two-year limitation period.

17TD is entitled to costs in the amount of $250.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2Smith v. Co-Operators Insurance Company, 2002 SCC 30.