Citation: Amani v. Certas Home and Auto Ins., 2021 ONLAT 19-013741/AABS-PI

Release date: 06/07/2021

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:

Nigar Amani

Applicant

and

Certas Home and Auto Insurance

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Ariane Wiseman, Counsel

For the Respondent:

Brett Kodak, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on August 25, 2016, and sought benefits from the respondent, Certas, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ Certas denied the benefits in dispute and now raises a preliminary issue of whether the applicant is statute-barred from proceeding with her application for non-earner benefits (“NEBs”) and attendant care benefits (“ACBs”) for failing to appeal the denial within the two year limitation period.

PRELIMINARY ISSUE IN DISPUTE

2The issue in dispute is as follows:

i. Is the applicant barred from proceeding with her claim for attendant care and non-earner benefits as she failed to submit an application for the benefits within the times prescribed by the Schedule?

RESULT

3The application for ACBs is not properly before the Tribunal and may not proceed to the substantive hearing. I exercise the Tribunal’s discretion under s. 7 of the Licence Appeal Tribunal Act (“LAT Act”) to extend the limitation period and allow the applicant to proceed with her claim for NEBs.

ANALYSIS

Section 56

4Section 56 of the Schedule provides that an application under s. 280(2) 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. While the reason for a denial does not have to be legally correct, a denial must be clear and unequivocal, and the notice of refusal must contain straightforward language so that the insured can determine whether to appeal within the two-year limitation period.

5Certas submits that entitlement to both of the benefits was denied via OCF-9 dated December 2, 2017 (“notice”) and deemed received on December 8, 2017. The notice advised the applicant that Certas determined she did not suffer a complete inability to carry on a normal life (i.e., the NEB test), based on the s. 44 report of Dr. Dessouki dated May 29, 2017. With regard to ACBs, the notice advised that benefits were not payable because an Assessment of Attendant Care Needs (“Form-1”) had not been received and because the applicant had advised the assessor, Mr. Hartog, that she was able to complete all of her personal care tasks independently. Certas asserts that the notice identified the two-year limitation period to appeal, which it submits expired on December 2, 2019. The applicant filed her application on December 10, 2019. Further, with respect to ACBs, Certas submits that since no Form-1 was submitted, the applicant never properly applied for the benefit and therefore, the Tribunal does not have jurisdiction to adjudicate the dispute.

6In response, the applicant submits that Certas failed to strictly comply with s. 37 of the Schedule and on that basis failed to deliver an unequivocal denial of her NEB claim to trigger the limitation period. She asserts that the OCF-9 sent to the applicant and her former counsel does not state that the s. 44 reports were attached; that the OCF-9 and report were not sent to the author of her Disability Certificate; and that there is no cover letter in the file addressed to the applicant although Certas’ log notes indicate the OCF-9 and report was mailed to her. With regard to ACBs, the applicant argues that the notice failed to set out the denial in clear, straightforward language and that if her application was incomplete because no Form-1 was submitted—a requirement to start entitlement to ACBs—a denial could not have been made at all. Finally, she submits that the Tribunal should exercise its discretion under s. 7 of the LAT Act to extend the limitation period as she had a bona fide intention to appeal, there is merit to her claim, the delay was only six business days and there is no prejudice to Certas.

ACBs are not properly before the Tribunal

7The Schedule is clear that a Form-1 is required to start an application for ACBs. In submissions, the parties seem to agree that by failing to submit a Form-1, the applicant also failed to properly apply for ACBs, meaning no denial could have been made by Certas in the OCF-9. I find the OCF-9 clearly states that a Form-1 was not received and that Certas did not have sufficient information to determine eligibility. I was not directed to a Form-1 by either party, which I can only infer to mean that ACBs have yet to be properly applied for by the applicant, meaning there has yet to be a denial. As a result, I agree that the ACB issue is not properly before the Tribunal and should not proceed, as there is no dispute to adjudicate.

The applicant may proceed with her NEB claim

8Next, with regard to the applicant’s NEB claim, I find the OCF-9 in evidence satisfies the criteria for a clear and unequivocal denial, as it clearly states that the applicant was not eligible for the benefit because the s. 44 assessment determined that she did not meet the complete inability test. The dispute resolution form, which highlights the two-year limitation period, was attached to the denial notice. While I am alive to the applicant’s s. 37(5) arguments, I disagree that the s. 44 report being sent under separate cover a few days following a proper denial notice somehow invalidates the denial or extends the limitation period. I find that Certas properly notified the applicant of the NEB denial in its December 2, 2017 OCF-9 and the limitation period was triggered.

9However, on these facts, I exercise the Tribunal’s discretion to extend the limitation period under s. 7 of the LAT Act to allow the applicant to proceed with her application for NEBs. While the Tribunal has conflicting interpretations of the applicability of s. 7 and the issue is currently before the Divisional Court, until a determination is made, I remain of the belief that the Tribunal has jurisdiction to extend a limitation period if the justice of the case requires it. The four factors that the Tribunal considers are: the existence of a bona fide intention to appeal; the length of the delay; prejudice to the other party; and the merits of the appeal.

10While all four factors need not be satisfied, I find the applicant’s claim strongly favours granting an extension to allow her to proceed. First, I find the applicant had a bona fide intention to appeal after securing new counsel, as her new counsel made two requests for Certas to send her file during the appeal period, on September 24, 2019 and December 3, 2019. The applicant’s counsel also made a follow-up inquiry regarding her NEBs on December 5, 2019, prior to filing her application on December 10, 2019. Second, the overall delay in her application is, to be frank, insignificant, at eight days (or six business days) following the expiration of the limitation period. In the life of an accident benefits file, six business days is negligible. Third, as this delay is negligible, Certas would face no prejudice from the exercise of my discretion. It cannot be said that the delay somehow interferes with its ability to assess the claim or prepare a defence where its denial was based on a s. 44 report and where the burden of proof ultimately lies with the applicant. Last, while I offer no substantive analysis of her claim, the applicant submitted recent s. 25 assessments that found her to be catastrophically impaired, which I find provide a reasonable basis to support that her claim has merit.

11On balance, I find the justice of the case, and the minimal delay, supports the Tribunal exercising its discretion to extend the limitation period under s. 7 of the LAT Act. The applicant is permitted to proceed with her application for NEBs.

ORDER

12The application for ACBs is not properly before the Tribunal and should not proceed to the substantive hearing.

13I exercise the Tribunal’s discretion under s. 7 of the LAT Act to extend the limitation period and allow the applicant to proceed with her claim for NEBs.

14The parties shall contact the Tribunal on receipt of this decision to schedule a case conference to determine how to proceed with the substantive hearing.

Footnotes

1. 1O. Reg. 34/10, as amended.