Release date: 04/29/2021
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:
Kailash Bagla
Applicant
and
TD Insurance Meloche Monnex
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
No submissions
For the Respondent:
Geoffrey L. Keating, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was involved in two separate automobile accidents on March 3, 2014 and May 25, 2015. He sought benefits, including attendant care benefits (“ACBs”), from the respondent, TD Insurance, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1
2With respect to the March 3, 2014 accident, TD Insurance denied the applicant’s claim for ACBs via letters dated January 12 and April 17, 2015. The applicant did not file his application with the Tribunal until January 17, 2020. With respect to the May 25, 2015 accident, TD Insurance denied the applicant’s claim for ACBs via letter dated April 1, 2016. The applicant filed an application with the Tribunal on or around June 28, 2019.
3A case conference was held on November 25, 2020 to address the combined claims. Both parties attended and participated and, notably, the applicant was represented by counsel. An Order dated November 27, 2020 set down a preliminary issue written hearing for March 8, 2021 in order to determine whether the applicant was limitation-barred from disputing entitlement to ACBs in relation to both accidents, due to his failure to dispute the denials within two years, as stipulated by s. 56 of the Schedule. A Notice of Written Hearing was sent to the parties on January 25, 2021.
4TD Insurance filed its written submissions and evidence by its deadline of February 4, 2021. On February 18, 2021, one day prior to the due date of the applicant’s submissions on the preliminary issue, the applicant’s counsel notified the Tribunal and TD Insurance via letter that she was no longer representing the applicant. It is unclear when the relationship broke down, but counsel’s letter requested that all future correspondence be directed to the applicant personally.
5The applicant did not file his written submissions and evidence on February 19, 2021. The Tribunal attempted to contact the applicant for clarity on whether he intended to proceed as a self-represented applicant, whether he was seeking new counsel or if he was abandoning his application. To date, the Tribunal’s attempts to reach the applicant have been unsuccessful and he did not file submissions on the preliminary issue.
ISSUES IN DISPUTE
6The preliminary issues in dispute are as follows:
i. Is the applicant precluded from proceeding with the following claims because the appeal was commenced after the two-year limitation period set out in the Schedule?
a. Is the applicant entitled to receive ACBs in the amount of $545.48 monthly for the period of March 3, 2014 to date and ongoing, for services recommended by Ashok Jain in a treatment plan submitted April 30, 2015, and denied by the respondent on April 30, 2015? (20-004158) and,
b. Is the applicant entitled to receive ACBs in the amount of $925.25 monthly for the period of May 25, 2015 to date and ongoing, for services recommended by Ashok Jain in a treatment plan submitted November 12, 2015, and denied by the respondent on April 21, 2016? (20-004159)
RESULT
7The applicant is limitation-barred on both ACB claims.
ANALYSIS
Section 56
8Pursuant to s. 56 of the Schedule, an application under subsection 280(a) 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.
9TD Insurance provided the ACB denial letters, which correspond with the dates provided above. On review of the applications, it is clear that the applicant did not dispute these denials within the two-year limitation period provided by s. 56, as his application regarding the first accident ACB denial was submitted nearly five years later and his application regarding the second accident ACB denial was submitted over three years later. This fact does not appear to be in dispute.
10Without submissions or evidence from the applicant, it is unclear what his position on the preliminary issue entails. In its submissions, TD Insurance indicates that the applicant relies on the Court of Appeal decision in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 to support his position that his ACB claims are not barred, which I can only assume was the position raised at the case conference or in private discussions between the parties. In any case, I agree with TD Insurance that Tomec and the doctrine of discoverability are not applicable on these facts. TD Insurance did not deny the applicant’s ACB claims pre-emptively or on the basis that he did not meet the test for catastrophic impairment, but rather on the basis that he did not require attendant care. In this sense, after two denials, I agree that it cannot be said that the applicant’s ACB entitlement was only discovered five and three years, respectively, after his claims for same. Rather, the applicant simply failed to appeal TD Insurance’s denial within the two-year limitation period, which would not attract the type of relief contemplated by Tomec.
11TD Insurance’s submissions also address s. 7 of the Licence Appeal Tribunal Act, which provides the Tribunal with discretion to extend the limitation period based on four factors: a bona fide intention to appeal within the limitation period; the length of the delay; prejudice to the other party; and the merits of the appeal. TD Insurance submits that an extension of time is not appropriate. While the Tribunal has conflicting decisions on the applicability of s. 7 and the issue is currently before the Divisional Court, it is the applicant’s burden to demonstrate that there are reasonable grounds for extending a missed limitation period based on these four factors. As the applicant offered no submissions, I have no basis to find that any of the factors weigh in his favour in order to extend the limitation period. As a result, TD Insurance is successful on the preliminary issue. The applicant is barred from proceeding with his ACB claims under s. 56 as he failed to appeal the denials within the two-year limitation period.
ORDER
12The applicant is barred from proceeding with his ACB claims under s. 56, as he failed to appeal the denials within the two-year limitation period and has not presented a case to demonstrate that the limitation period should be extended.
13Procedurally, I note that the Case Conference Order also scheduled a hearing for November 2021 on the remaining substantive issues in dispute. Given the applicant’s silence thus far, it is unclear if he intends to participate. Accordingly, on receipt of this preliminary issue decision, the parties are directed to contact the Tribunal to schedule a case conference to determine how to proceed.
Released: April 29, 2021
Jesse A. Boyce, Vice Chair
Footnotes
- O. Reg. 34/10, as amended.