Kechichian v. Primmum Insurance Company, 2021 CanLII 37847

Citation: Kechichian v. Primmum Insurance Company, 2021 ONLAT 19-008194/AABS - PI

Released Date: 05/05/2021

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8, in relation to statutory accident benefits.

Between:

Hagob Kechichian

Applicant

and

Primmum Insurance Company

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Vishal Sharma, Counsel

For the Respondent:

Annemarie White, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1The applicant, Hagob Kechichian, was injured in an automobile accident on September 21, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Primmum Insurance Company, the respondent.

2On July 11, 2019, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to determine, among other issues, his entitlement to an in-home occupational therapy assessment and to the unapproved portion of a treatment plan for travel expenses to physiotherapy.

3On November 20, 2019, applicant’s Counsel emailed the Tribunal and requested to add the applicant’s claim for non-earner benefits (“NEBs”) in the amount of $185.00 per week to the applicant’s July 11, 2019 application.

4At the case conference held on November 5, 2020, the respondent raised a preliminary issue. The respondent submitted that, pursuant to s. 56 of the Schedule, the applicant was statute-barred from proceeding with his claims at the Tribunal for the in-home occupational therapy assessment, the unapproved portion of the physiotherapy treatment plan and for NEBs, because he failed to apply within the limitation period of two years after the respondent’s refusal to pay these benefits. As a result, a written preliminary issue hearing was scheduled.

5In his written hearing submissions, the applicant withdrew the following substantive claims:

(i) For an in-home occupational therapy assessment recommended by Remik Akrewski in a treatment plan (“OCF-18”) dated October 8, 2015, denied by the respondent on November 3, 2015; and

(ii) For $287.40 ($3,843.66 less $3,565.26 approved) for travel expenses to physiotherapy recommended by Dr. Eitan Glazas in an OCF-18 dated November 19, 2015, denied by the respondent on December 4, 2015.²

6As a result, the only preliminary issue remaining in dispute between the parties concerns the applicant’s claim for NEBs.

PRELIMINARY ISSUE

7The following preliminary issue is to be decided:

(i) Is the applicant statute-barred from pursuing his claim for NEBs in the amount of $185.00 per week for the period of August 8, 2016³ to date and ongoing due to the limitation period in s. 56 of the Schedule?

RESULT OF PRELIMINARY ISSUE

8I find that:

(i) the applicant is statute-barred from proceeding with his claim to the Tribunal for NEBs for the period of August 8, 2016 to date and ongoing, as his application for this benefit was filed with the Tribunal outside of the two-year limitation period set out in the Schedule;

(ii) I have no jurisdiction to apply the equitable doctrine of estoppel; and

(iii) I have no jurisdiction to extend a limitation period under s. 56 of the Schedule by virtue of s. 7 of the Licence Appeal Tribunal Act, 1999.⁴

ANALYSIS

9Under 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.

10There is no dispute between the parties that the respondent provided notice to the applicant on July 21, 2016 that it was terminating the applicant’s NEBs effective August 7, 2016.⁵ Therefore, I find that the limitation period for the applicant to dispute the termination of his NEB benefits expired on July 21, 2018.

11The applicant concedes to failing to dispute the respondent’s termination of his NEBs in accordance with s. 56 of the Schedule and does not dispute the sufficiency of the respondent’s July 21, 2016 notice. Instead, the applicant submitted that the respondent is estopped from raising the limitation period in s. 56 of the Schedule regarding his claim for NEBs as a result of a prior agreement with the respondent’s former Counsel.

12The following facts are not in dispute between the parties:

(i) The applicant submitted a prior application to the Tribunal on June 12, 2018 regarding his claim for accident benefits in relation to the subject accident;⁶

(ii) The sole issue listed on the June 12, 2018 application was the applicant’s claim for NEBs in the amount of $185.00 per week from July 21, 2016 to date and ongoing; and

(iii) On September 5, 2018 the applicant withdrew his June 12, 2018 application for the purposes of undergoing catastrophic (“CAT”) impairment assessments.

13The applicant submitted several email correspondences between his Counsel and the respondent’s former Counsel, Mr. Ahmad Khan. In an email dated August 15, 2018, Mr. Khan wrote to applicant’s Counsel and advised that he had instructions to, “allow for a without prejudice withdrawal of the LAT application so that the Applicant may attend s. 25 CAT assessments.”⁷ Additionally, on September 4, 2018, Mr. Khan sent an email to applicant’s Counsel that stated, “I confirm that my client will not advance a limitation discussion with respect to the issue in dispute in the current LAT application.”⁸

14The applicant maintains that Mr. Khan’s September 4, 2018 correspondence clearly and unequivocally acts as an estoppel to any limitation period argument being relied upon by the respondent regarding the applicant’s claim for NEBs.

15Although the respondent did not file any reply submissions, the respondent stated in its initial hearing submissions that it was not aware of any previously held agreement between the parties.⁹

16I accept that Mr. Khan agreed on behalf of the respondent to not advance a limitation period argument in response to the applicant advancing a later claim to the Tribunal for NEBs. However, the applicant has provided me with no authority that supports the position that I have jurisdiction to provide his requested relief of applying the equitable remedy of estoppel.

17It is well settled that an administrative tribunal only has the powers conferred to it by statute. Section 280(4) of the Insurance Act¹⁰ provides that accident benefits disputes “shall be resolved in accordance with the Statutory Accident Benefits Schedule.” An administrative tribunal does not have the ability to craft remedies that are the exclusive purview of the common law courts. The Statutory Powers Procedure Act¹¹ gives tribunals some latitude to control their process and procedure and the law allows tribunals to inquire into issues of procedural fairness or natural justice and, in limited circumstances, constitutional issues, but there is no jurisdiction to provide equitable remedies including estoppel.¹² Therefore, I find that I have no jurisdiction to find that the respondent is estopped from proceeding with their limitation period argument regarding the applicant’s claim for NEBs.

18Moreover, while the issue was not raised by the applicant, the respondent submitted that I also do not have jurisdiction to extend the limitation period under s. 56 by way of s. 7 of the LAT Act and I agree.

19Section 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.

20The respondent relied upon the Tribunal decision in S.S. v. Certas Home and Auto Insurance¹³ which held upon reconsideration that s. 7 of the LAT Act does not apply to the Schedule to extend a limitation period.¹⁴ S.S. v. Certas along with A.F. v. North Blenheim Mutual Insurance Company,¹⁵ which found the opposite regarding the Tribunal’s jurisdiction and s. 7 of the LAT Act, are both currently under appeal to the Divisional Court. 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.

21Nonetheless, 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 Company¹⁶ 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…¹⁷

22For all of the reasons set out above, I find that I have no jurisdiction to find that the respondent is estopped from proceeding with their limitation period argument regarding the applicant’s claim for NEBs or to extend a limitation period under s. 56 of the Schedule by virtue of s. 7 of the LAT Act. As a result, the applicant is statute-barred pursuant to s. 56 of the Schedule from continuing with his claim to the Tribunal for NEBs.

ORDER

23Based on all of the reasons set out above, the applicant is statute-barred pursuant to s. 56 of the Schedule from continuing with his claim to the Tribunal for NEBs for the period of August 8, 2016 to date and ongoing. I also find that I have no jurisdiction to apply the equitable doctrine of estoppel to the respondent raising a limitation period argument regarding the applicant’s claim for NEBs or to extend the limitation period in this matter by way of s. 7 of the LAT Act.

OTHER PROCEDURAL ISSUES

24Pursuant to the Tribunal’s November 5, 2020 Case Conference Report and Order, the remaining substantive issues in dispute remain scheduled to proceed to a videoconference hearing on September 27-30 and October 1, 4 and 5, 2021. All 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.

Released: May 5, 2021

__________________________

Lindsay Lake

Adjudicator

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 2Written Submissions of the Applicant on the Preliminary Issue, para. 2.
3. 3The applicant’s claim for NEBs was originally stated for Juley 21, 2016 to date and ongoing. However, the July 21, 2016 correspondence from the respondent to the applicant stated that NEBs were stopped effective August 7, 2016. Therefore, I find that the correct period in dispute is from August 8, 2016 to date and ongoing.
4. 4S.O. 199, c. 12, Sched. G (the “LAT Act”).
5. 5July 21, 2016 correspondence from the respondent to the applicant, Written Submissions of the Applicant on the Preliminary Issue, tab 1.
6. 6Written Submissions of the Applicant on the Preliminary Issue, tab 1.
7. 7Written Submissions of the Applicant on the Preliminary Issue, tab 2.
8. 8Written Submissions of the Applicant on the Preliminary Issue, tab 6.
9. 9Written Submissions of the Respondent, para. 46.
10. 10R.S.O. 1990, c. I.8.
11. 11R.S.O. 1990, c. S.22.
12. 12See: J.T. and Aviva Canada Inc., 2018 CanLII 8097 (ON LAT) at paras. 39-41.
13. 132016 CanLII 153125 (ON LAT Reconsideration Decision) (“S.S. v. Certas”).
14. 14Ibid. at para. 20.
15. 152017 CanLII 87546 (ON LAT Reconsideration Decision) (“A.F.”).
16. 162019 CanLII 119731 (ON LAT) (“M.N.”).
17. 17Ibid. at para. 19.