Williams v. Aviva General Insurance Company, 2021 CanLII 37853

Citation: Williams v. Aviva General Insurance Company, 2021 ONLAT 19-007941/AABS-PI

Release date: 05/05/2021

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:

Toni-Ann Williams

Applicant

and

Aviva General Insurance Company

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Volha Vinahradava, Counsel

For the Respondent:

Marcin Panasewicz, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, Toni-Ann Williams, was injured in an automobile accident on August 6, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Aviva General Insurance Company, the respondent.

2The applicant received weekly income replacement benefits (“IRBs”) from the respondent for the period of August 13, 2016 to June 23, 2017. The respondent terminated the applicant’s IRBs via correspondence dated June 15, 2017 effective June 23, 2017 following two insurer’s examinations that found that the applicant did not meet the test for IRBs entitlement. As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3At the case conference held on January 13, 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 her claim to the Tribunal for IRBs because she failed to apply within the limitation period of two years after the respondent provided notice that it was terminating her IRB payments. As a result, a written preliminary issue hearing was scheduled for April 6, 2020.

4A decision was released in this matter on December 23, 2020 regarding the preliminary issue hearing. The initial preliminary hearing adjudicator unfortunately did not have the applicant’s preliminary issue hearing submissions before her for consideration due to an administrative error at the Tribunal. After this was discovered, the December 23, 2020 decision was set aside, and a new written preliminary issue hearing was scheduled.

PRELIMINARY ISSUE

5The following preliminary issue is to be decided:

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

RESULT OF PRELIMINARY ISSUE

6I find that the applicant is statute-barred from proceeding with her claim to the Tribunal for IRBs as her application for this benefit was filed with the Tribunal outside of the two-year limitation period set out in the Schedule. I also find that I have no jurisdiction to extend or provide relief from a limitation period under s. 56 of the Schedule by virtue of s. 7 of the Licence Appeal Tribunal Act, 1999.²

ANALYSIS

7Under 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.

8The applicant in this matter does not dispute the sufficiency of the respondent’s June 15, 2017 notice terminating IRBs and confirmed that this correspondence was indeed received. Instead, the parties in this matter disagree about when the two-year limitation period began to run and when the applicant’s application was filed with the Tribunal.

The respondent’s position

9The respondent submitted that its June 15, 2017 correspondence was mailed to the applicant and to her representative on the same date – June 15, 2017. As such, the respondent submits that this letter is deemed to have been received five business days later³ on June 22, 2017.

10The respondent also submitted that the applicant did not file her application with the Tribunal until July 3, 2019, which was outside of the two-year limitation period from its notice terminating payment of the applicant’s IRBs. The respondent relied upon correspondence it received from the Tribunal dated August 2, 2019 which stated, “You have been named as the Respondent in the above Application filed with the Licence Appeal Tribunal on July 3, 2019” (my emphasis added).⁴

The applicant’s position

11The applicant maintains that she did not receive the respondent’s June 15, 2017 correspondence until June 27, 2017. The applicant relied upon the practice of her Counsel’s firm of date stamping incoming correspondence on the date that it is received. The version of the June 15, 2017 correspondence that the applicant submitted as evidence was dated stamped “received June 27 2017.”

12The applicant also disagreed that her application was not filed with the Tribunal until July 3, 2019. It is the applicant’s position that she filed her application on June 27, 2019 and, therefore, it was filed exactly on the two-year anniversary of the respondent’s termination of her IRBs and, therefore, there is no limitation argument to be raised under s. 56 of the Schedule.

The application was filed with the Tribunal on July 3, 2019

13I agree with the respondent that the applicant’s application was filed with the Tribunal on July 3, 2019 because the version of the application contained in the Tribunal’s records is date stamped as received on July 3, 2019. This is corroborating evidence in support of the Tribunal’s August 2, 2019 correspondence to the respondent indicating that the application was filed on July 3, 2019.

14Further, while the applicant submitted that she filed the application to the Tribunal via ICS courier on June 27, 2019, no confirmation of delivery has been filed to support a filing date of June 27, 2019. As there is no other evidence before me to support a finding that the application was filed on June 27, 2019, as Counsel’s submissions are not evidence, I find that the applicant has failed to prove on a balance of probabilities that her application was filed with the Tribunal before July 3, 2019.

The application was filed outside of the two-year limitation period

15Even if I agree with the applicant and accept that she did not receive the respondent’s June 15, 2017 correspondence until June 27, 2017, I have found that the application was not filed with the Tribunal until July 3, 2019. As a result, the application was filed after the expiry of the two-year limitation period, as suggested by the applicant, of June 27, 2019.

Section 7 of the LAT Act

16If I found that the application was filed outside of the two-year limitation period, the applicant requested, in the alternative, that the Tribunal exercise its discretion under s. 7 of the LAT Act and allow her application to proceed.

17In addition to the applicant providing no submissions on how s. 7 of the LAT Act might be applied to this matter, I find that I do not have jurisdiction to extend the limitation period under s. 56 by way of s. 7 of the LAT Act.

18Section 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.

19There is disagreement in the Tribunal’s decisions on the applicability of s. 7 of the LAT Act and whether it confers jurisdiction to the Tribunal to extend the s. 56 limitation period.⁵ There is also no direction yet on this issue from a court of superior jurisdiction.

20Nonetheless, I prefer the determination in S.S. v. Certas Home and Auto Insurance⁶ over other competing decisions 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 Act⁷ and I agree with this conclusion.

21For the reasons set out above, I find that I have no jurisdiction to extend or provide relief from 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 her claim to the Tribunal for IRBs.

ORDER

22The applicant is statute-barred pursuant to s. 56 of the Schedule from continuing with her claim to the Tribunal for IRBs. I also find that I have no jurisdiction to extend or provide relief from the limitation period by way of s. 7 of the LAT Act.

23As no other issues remain in dispute between the parties, this application is dismissed.

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 2S.O. 199, c. 12, Sched. G (the “LAT Act”).
3. 3Schedule, s. 64(18).
4. 4Preliminary Issue Hearing Written Submissions of the Respondent, tab C.
5. 5See: S.S. v. Certas Home and Auto Insurance, 2016 CanLII 153125 (ON LAT Reconsideration Decision) and A.F. v. North Blenheim Mutual Insurance Company, 2017 CanLII 87546 (ON LAT Reconsideration Decision).
6. 62016 CanLII 153125 (ON LAT Reconsideration Decision) (“S.S. v. Certas”).
7. 7Ibid. at paras. 14-16.