Citation: Weathers v. Toronto Transit Commission Insurance Company Limited, 2021 ONLAT 20-006288/AABS - PI

Released Date: 05/20/2021

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:

Radcliffe Weathers

Applicant

and

Toronto Transit Commission Insurance Company Limited

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Adam Ridolfi, Paralegal

For the Respondent:

Justin Lim, Counsel

HEARD:

Via Written Submissions

OVERVIEW

1On December 12, 2000, when he was 7 years old, the applicant injured his knee while boarding a Toronto Transit Commission (“TTC”) bus. His mother sought non-earner benefits (“NEB”) from the respondent, TTC, on his behalf, pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the ''Schedule'') in effect at the time.

2The application relied on a Disability Certificate (“OCF-3”), completed by the applicant’s family doctor, that diagnosed the applicant with a right knee contusion. The OCF-3 indicated that the applicant did not suffer an impairment that prevents him from carrying on substantially all of his normal pre-accident activities. In other words, the OCF-3 did not support entitlement to an NEB.

3On January 17, 2001, TTC sent correspondence to the applicant’s mother, explaining that an NEB was not payable until the applicant turned 16 and that, based on the OCF-3, the applicant did not suffer an impairment that prevented him from carrying out substantially all of his pre-accident activities and, therefore, he did not meet the NEB test and no benefit was payable. An Explanation of Benefits was attached. TTC submits that the file was put into storage sometime in 2001.

4However, on or around April 12, 2010, the applicant’s mother faxed correspondence to TTC referring to a telephone message from a TTC adjuster from March 10, 2010 stating that the NEB claim had been denied. The applicant’s mother indicated that the applicant had turned 16 and she sent the denial letter from nine years earlier. She requested that the file be reopened. In a letter dated April 21, 2010, TTC reiterated its January 17, 2001 denial of the NEB claim.

5Some time passed. Between July and September 2015, TTC exchanged correspondence with the applicant’s current counsel, who took the position that TTC’s previous denials were improper and that the applicant was seeking payment or resolution of his NEB claim. On August 9, 2017, the applicant submitted an Election of Benefits form (“OCF-10”) dated March 22, 2017 to TTC. On receipt, TTC sent correspondence to the applicant referring to its two previous denial letters of January 17, 2001 and April 21, 2010, as well as a telephone conversation of March 28, 2017 that maintained TTC’s denial.

6On January 17, 2018, applicant’s counsel sent a letter to TTC acknowledging receipt of the denial letter dated August 16, 2017 and acknowledging TTC’s position that the applicant’s NEB claim was statute-barred.

7On June 16, 2018, the applicant submitted a new OCF-3 dated October 18, 2017 from Rouge Valley Sports Injury Wellness. The OCF-3 indicated that the applicant suffered a complete inability to carry on a normal life, or the language of the NEB test under the current version of the Schedule. As part of its ongoing obligation to adjust the file, TTC scheduled insurer’s examinations to address the OCF-3.

8On August 21, 2018, TTC sent correspondence to the applicant and his counsel, enclosing the reports from the insurer’s examinations. TTC referred to its previous denial letter dated August 16, 2017 and explained that it was maintaining its position that the applicant’s claim for a NEB was statute-barred and initial entitlement to the benefit remained denied. On June 3, 2020, the applicant filed his application with the Tribunal for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

9The sole issue in dispute is as follows:

i. Is the applicant statute-barred under s. 51 of the Schedule for failing to commence an application under s. 280(2) of the Insurance Act within two years after TTC’s refusal to pay NEBs?

RESULT

10The applicant is statute-barred from proceeding with his NEB application, as he failed to appeal TTC’s valid denials within the limitation period.

ANALYSIS

11Section 51 of the Schedule provides that an arbitration shall be commenced within two years after the insurer’s refusal to pay the amount claimed. A denial notice must not be legally correct but should inform the insured of the reasons for the denial, in straightforward language, to allow the insured to decide whether or not to challenge the determination. There is no provision in the Insurance Act or in the Schedule that allows an insured to re-apply for a benefit once it has been denied; the only remedy for the insured is to appeal the denial within the two-year period.¹

12As I understand it, the applicant’s position appears to be based on the belief that TTC’s denial letter from January 17, 2001 was an invitation to re-apply or perhaps for it to re-evaluate the applicant’s NEB claim once he turned 16. This seems to be the motivation for the applicant’s mother reaching out to TTC in March 2010. Indeed, in submissions, the applicant states: “On January 17th, 2001, [TTC] sent a denial letter explaining clearly that [NEBs] were not payable and providing the reason “no benefit is payable until he attains the age of 16”. As such, the applicant did not pursue arbitration since he did not qualify for or elect a benefit.” However, this position ignores that TTC’s 2001 denial also cited the fact that the OCF-3 on which the applicant relied indicated that he did not meet the applicable test. In any event, based on this submission, it appears that the applicant agrees that TTC’s January 17, 2001 notice clearly explained that NEBs were not payable.

13In its April 21, 2010 letter, TTC referred to its 2001 denial in response to the applicant’s mother’s request that the file be retrieved now that the applicant had turned 16. The applicant submits that, “At no time was a complete benefits package sent to the applicant when he became of age so that the applicant could be fully informed of the benefits he was eligible for, nor did [TTC] proceed with medical updates to determine if a material change had occurred breaching on going obligations to adjust. [TTC] simply boiler plated a denial.” However, the applicant has not provided any authority to support the proposition that TTC was required to send an accident benefits package to a minor applicant when he reached the age of 16 or the age of majority and especially so where the denial was based on an OCF-3 that stated he did not meet the test. Where there is no authority for such a proposition, I agree that it would be unreasonable to expect an insurer to do that for every minor claimant that re-appears after a decade. In any case, even after receiving TTC’s second denial in April 2010, the applicant took no action for several years.

14Fast forward to March 17, 2017, when the applicant stated in a letter that he was again seeking NEBs despite the fact that TTC had denied his claim twice. The OCF-10 dated March 22, 2017 electing NEBs was received by TTC on August 9, 2017. TTC then sent its third denial letter on August 16, 2017, acknowledging receipt of the OCF-10 and stating its position that the only OCF-3 on file (being the OCF-3 from the 2001 denial when the applicant was 7 and that only stated a knee contusion) still did not support entitlement to a NEB. This third denial letter referenced TTC’s denial letters from 2001 and 2010 and reiterated its position that the NEB claim was statute-barred and provided the applicant with the necessary information to dispute the claim. Applicant’s counsel sent a letter dated January 17, 2018, acknowledging receipt of TTC’s third denial letter dated August 16, 2017 and its position that the NEB claim was statute-barred.

15It is well-established that the limitation period is triggered by a single event: the refusal of an insurer to pay the benefit claimed.² The submission of a new application for benefits by a claimant following a clear refusal by the insurer to pay benefits does not re-start the limitation clock. Where an insurer has denied benefits, the claimant’s remedy is to seek recourse for the termination of benefits within the limitation period.³ I find no evidence to support the applicant’s assertion that TTC led him to believe that it was reconsidering initial entitlement to a NEB, that it was no longer relying on its previous denials or revisiting its position that the limitation period had expired. TTC made no unilateral requests for updated documentation or an OCF-3, but rather, was responding to the applicant as part of its ongoing obligation to adjust the file. There is no evidence of a tolling agreement.

16TTC issued proper denials in 2001, 2010 and 2017. For reasons that remain unclear, the applicant still did not commence his application at the Tribunal within two years of the date of TTC’s third denial letter. Even on the most generous interpretation of the limitation period—and taking into account any arguments that the applicant offers regarding turning 16, on reaching the age of majority, on the Limitations Act, that his mother was not a litigation guardian, etc.—I agree that the applicant had until August 16, 2019, at the latest, to appeal TTC’s denials. It is undisputed that he filed his application with the Tribunal on June 3, 2020. His application is statute-barred under s. 51.

Section 7 of the Licence Appeal Tribunal Act (“LAT Act”)

17Section 7 of the LAT Act provides the Tribunal with discretion to extend a limitation period if the applicant can demonstrate that the justice of the case favours an extension of the time to appeal. The Tribunal considers four factors: 1) the existence of a bona fide intention to appeal; 2) the length of the delay; 3) prejudice to the other party; and 4) the merits of the appeal. I find the applicant has fallen well-short of meeting his burden to demonstrate that an extension is warranted, as he provided no specific submissions on the four factors.

18In any case, it has been over 20 years since the applicant suffered a knee contusion when he was 7. TTC has issued three valid denials over two decades. It does not appear that there was any correspondence between the applicant and TTC between the 2010 denial and 2015 and the applicant took no steps to apply to the Tribunal during that time. The applicant’s January 17, 2018 letter acknowledged receipt of TTC’s third denial letter dated August 16, 2017 and its position that the NEB claim was statute-barred, and he still failed to apply within the time prescribed by the Schedule. Despite being represented, the applicant failed to appeal TTC’s 2017 denial within the two-year limitation period. Even providing the applicant with the benefit of the doubt, the delay is quite significant at 10 months. Meanwhile, there is significant prejudice to TTC in obtaining medical evidence and determining causation given that the initial injury occurred two decades ago when the applicant was 7. Also in evidence are indications of a subsequent slip and fall in 2003 and of a second motor vehicle accident in 2015 that further cloud causation. Finally, I offer no analysis on the merits of the claim as it is not determinative given the above. For these reasons, I decline to exercise the Tribunal’s discretion to extend the limitation period as the justice of the case does not support it.

19In submissions, TTC sought its costs pursuant to Rule 19 of the Tribunal’s Common Rules of Practice and Procedure but provide no particulars. Accordingly, I decline to order costs.

ORDER

20The applicant’s claim for NEBs is statute-barred, as he failed to commence his application within the two-year limitation period after a valid denial.

Footnotes

1. 1See, Smith v. Co-Operators Gen. Ins. Co., 2002 SCC 30; Turner v. State Farm, 2005 CanLII 2551 (ONCA); Haldenby v. Dominion of Canada Gen. Ins. Co., 2001 CanLII 16603 (ONCA); Sietzema v. Economical Mutual Ins. Co., 2014 ONCA 111.
2. 2Bonilla v. Preszler, 2016 ONCA 759, [2016] O.J. No. 5315, at paras. 8-10.
3. 3Blake v. Dominion Ins. Co., 2015 ONCA 165, at para. 30.