Citation: Asher v. Wawanesa Mutual Insurance Company, 2021 ONLAT 19-013046/AABS

Release date: 06/03/2021

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:

Rhonda Asher

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Darcie Sherman, Counsel

For the Respondent:

Seth Kornblum, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Rhonda Asher (“applicant”) was involved in an automobile accident on October 26, 2013 (“accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule¹ - Effective September 1, 2010 (the “Schedule”).

2Wawanesa Mutual Insurance Company (“respondent”) paid income replacement benefits (“IRBs”) claimed by the applicant from November 11, 2013 until December 8, 2013 after which it found the applicant ineligible. The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) November 25, 2019.

ISSUE

3The preliminary issue to be decided is:

i. Is the applicant barred from proceeding with her claim for income replacement benefits (“IRBs”) because she failed to commence her application within two years after the respondent’s refusal to pay the amount claimed?

RESULT

4The applicant’s Tribunal application is statute-barred. As a result, the applicant has no claim to an award under Regulation 664 or to interest. The application is dismissed.

LAW

5An employed person’s entitlement to an IRB falls under s. 5(1)(1)(i) of the Schedule: an IRB is payable if the insured was working at the time of the accident and, within 104 weeks of the accident, suffers a substantial inability to perform the essential tasks of that employment. Section 6(1)(2)(b) of the Schedule provides that the applicant must after the first 104 weeks of disability, as a result of the accident, be suffering a complete inability to engage in any employment for which the applicant is reasonably suited by education, training or experience.

6Section 56 of the Schedule provides that an application before the Tribunal in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed. The onus is on the respondent to show that the limitation period has expired.

7Section 7 of the Licence Appeal Tribunal Act, 1999² (“LAT Act”) allows the Tribunal to extend a limitation period under certain circumstances. In considering whether to exercise its discretion to extend the limitation period the Tribunal must consider the following four factors³:

a. A bona fide intention to appeal within the limitation period;

b. The length of delay;

c. Prejudice to the other party; and

d. Merits of the appeal.

8The onus is on the applicant to establish reasonable grounds for an extension under s. 7 of LAT Act.

Respondent’s position

9The respondent submits in it’s original submissions and in reply, that the applicant is statute-barred from bringing a claim for IRBs pursuant to s. 56 of the Schedule because it was commenced more than two years after the respondent’s clear and unequivocal denial of the applicant’s IRB claim on March 7, 2014 and she should be held to the limitation period.

Applicant’s position

10The applicant submits that she returned to work on December 9, 2013 to mitigate her losses from December 9, 2013 to August 7, 2015 following which her injuries related to the accident made it impossible for her to continue to work in her required capacity. The applicant attempted to return to work on modified hours and duties but stopped working completely on September 5, 2015. By letter dated May 10, 2016 enclosing an OCF-3, disability certificate, the applicant applied to the respondent for IRBs and followed up with correspondence to the respondent on November 6, 2018. The applicant submits that because the respondent did not clearly deny IRB, scheduled a s. 44 insurer’s examination (“IE”) in November, 2018, denied post-104 week IRBs on the basis of the IE, and did not raise the defence of limitation period until after she had applied to the Tribunal, the applicant understood her claim for IRB was being considered and she attended the post-104 week IE. The applicant further submits that the respondent is estopped from now alleging that her claim for IRB is statute-barred and the legislation should be construed in her favour because it is consumer protection legislation. The applicant relies on s. 11 of the Schedule. The applicant alternatively seeks an extension of time under s. 7 of the LAT Act.

ANALYSIS

Is the Applicant’s Tribunal Application Statute-Barred?

11After considering all of the evidence, submissions and cases put forward by the parties, I find that the respondent has met its burden of proof to establish that the applicant is barred from proceeding with her claim for IRB because she failed to commence her application within two years after the respondent’s denial to pay the amount claimed and the limitation period expired. The following are my reasons.

12I find that the respondent denied IRB to the applicant March 7, 2014 and that the respondent’s written denial was clear, unequivocal, not confusing or ambiguous as suggested by the applicant. The respondent’s denial of IRB is set out on March 7, 2014 correspondence and an explanation of benefits (“EOB”). The reasons for the denial in the EOB are clear, including “You have returned to your employment duties on December 9, 2013. Please be advised that you are not eligible for an Income Replacement Benefit effective December 9, 2013”. The EOB included a warning that the applicant had two years from the date of the respondent’s refusal to pay to dispute the decision by filing an application through the Financial Services Commission of Ontario. Allowing for service of this denial, the limitation period started March 17, 2014.

13More than two years later, on May 10, 2016 applicant’s legal representative wrote to the respondent requesting IRB on the basis that the applicant had stopped working in August 2015.

14More than another two years later, on November 6, 2018, applicant’s legal representative sent follow up correspondence to the respondent.

15Although the respondent scheduled a s. 44 insurer’s examination (“IE”) in November 2018, it denied post-104-week IRB in correspondence dated April 12, 2019 on the basis of the IE. When the applicant applied to the Tribunal for dispute resolution, she claimed entitlement to IRB from August 1, 2015 and ongoing and indicated that her application was submitted within the times sets out by the Schedule.

16I find unpersuasive the applicant’s submission that the respondent did not raise the defence of limitation period until after the applicant had applied to the Tribunal. Section 56 of the Schedule requires an application in respect of a benefit to be commenced within two years after the insurer’s refusal to pay the amount claimed. Here, the applicant did not do so.

17I also find unpersuasive the applicant’s submission that she understood her claim for IRB was being considered and she attended the post-104-week IE voluntarily. The applicant’s understanding about the status of her claim for IRB is not relevant as to whether she complied with the limitation period in the Schedule.

18Similarly, I find unpersuasive the applicant’s submissions that the respondent is estopped from now alleging that her claim for IRB is statute-barred and that the legislation should be construed in her favour because it is consumer protection legislation. Considered in the context of the correspondence between the applicant’s legal representative and the respondent exchanged over a period of several years after the limitation period had already expired, I find none of the respondent’s action can be construed as an agreement to pay IRB or any other basis of estoppel. There is nothing that the respondent did here, including conducting an IE, that precludes the respondent from denying, as it already had, the applicant’s entitlement to IRB. Further, that the Schedule is consumer protection legislation does not relieve the applicant of the obligation to comply with the legislated limitation period for filing an application to the Tribunal.

19The limitation period for filing a claim for pre-104-week IRB expired March 17, 2016. Between the date her IRB payments stopped in 2013 and March 17, 2016, the applicant chose, for her own reasons, not to challenge the respondent’s denial of her claim for IRB even though she had stopped working in 2015. A claim for IRB benefits post-104 weeks can only succeed if the applicant has established eligibility for IRB within the first 104 weeks after the accident, which the applicant did not do after the denial. The applicant’s argument that each refusal to pay IRB sets a new two-year limitation period cannot succeed and has been rejected by the Ontario Court of Appeal.⁴ There is nothing in s. 11 of the Schedule that relieves the applicant of the obligation to comply with the legislated limitation period for filing an application to the Tribunal.

20Here, the applicant knew she had suffered injury and knew of her right to claim IRB. The proof of this is that she claimed and was paid IRB for a period of time. The applicant chose not to pursue her right to challenge the respondent’s denial of IRB within two years after the respondent’s March 17, 2014 denial despite having stopped work in 2015.

Applicant’s Request for Extension of the Limitation Period

21Although the respondent submits that the Tribunal does not have the discretion under s. 7 of the LAT Act to extend the limitation period in s. 56 of the Schedule and s. 7 of the LAT Act has no relevance here, I disagree and have considered the applicant’s request for a s. 7 extension of the limitation period.

22I find that the applicant has not met her onus to establish reasonable grounds for an extension under s. 7 of LAT Act and I decline to exercise my discretion to extend the deadline for the following reasons.

23The applicant’s evidence fails to show a bona fide or good faith intention to appeal within the appeal period. I find that the appeal period ended on March 17, 2016, two years after the respondent communicated to the applicant its denial of IRB. The applicant submits that she stopped working completely on September 5, 2015 at which time the limitation date of March 17, 2016 had not yet expired. There is no documentation indicating a bona fide intention to appeal between September 2015 and March 17, 2016.

24The applicant did not file IRB claim with the Tribunal until November 25, 2019. This was an excessive delay of more than three years after the limitation period had ended.

25I accept the respondent’s submission that, given this length of time, there is incurable prejudice to the respondent, as the respondent has been denied the opportunity to obtain evidence as to the applicant’s medical state several years earlier.

26The applicant has failed to establish that her application has merit. As the applicant is unlikely to be able to satisfy her burden of substantiating entitlement to pre-104 IRB because she was working most of that time, the post-104 eligibility test of complete inability to engage in any employment is also unlikely to be met.

ORDER

27For the reasons above, the applicant’s Tribunal application is statute-barred. As a result, the applicant has no claim to an award under Regulation 664 or to interest. The application is dismissed.

Footnotes

1. 1O.Reg. 34/10
2. 2S.O. 1999, c. 12, Sched. G.
3. 3Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (Div. Ct.)
4. 4Bonilla v. Preszler et al, 2016 ONCA 759, para. 10.