Nguyen v. Economical Insurance Company, 2021 CanLII 97277
Release date: 10/07/2021
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:
Binh Nguyen
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR:
Avril A. Farlam, Vice-Chair
APPEARANCES:
For the Applicant:
Binh Nguyen, Self-represented
For the Respondent:
Catherine Korte, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Binh Nguyen (“applicant”) was involved in an automobile accident on January 27, 2003 (“accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (''Schedule'').
2Economical Insurance Company (“respondent”) denied the applicant’s claim that she suffered a catastrophic impairment as a result of the accident, and non-earner benefits (“NEB”), attendant care benefits (“ACB”), housekeeping and home maintenance benefit. The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).
3On August 28, 2018 FSCO1 denied the applicant’s claim for caregiver benefits pursuant to s. 13 of the Schedule at the rate of $250.00 per week from August 23, 2008 to February 23, 2009, and NEB pursuant to s. 12 of the Schedule at the rate of $185.00 per week from February 23, 2009 to date and ongoing, and interest, and awarded expenses in a total amount of $12,906.65 against the applicant which the respondent submits remain unpaid. The respondent requested a preliminary issues hearing.
4The Tribunal’s November 27, 2020 case conference report and Order provides that the following preliminary issues shall be heard prior to the substantive issues.2
PRELIMINARY ISSUES TO BE DECIDED
5The preliminary issues to be decided are:
i. Should the application be dismissed as frivolous, vexatious, or commenced in bad faith under s. 3.4(a) of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version 1, October 2, 2017 (“Rules”) because it is res judicata and there are outstanding costs awarded against the applicant in favour of the respondent?
ii. Should the application for a catastrophic determination (“CAT”) be dismissed because of the applicant’s non-attendance at insurer’s medical examinations (“IEs”)?
iii. Should the application for benefits be dismissed because it was brought beyond the two-year limitation period?
RESULT
6The applicant’s claims for caregiver benefits and NEB arising from the accident are res judicata before the Tribunal. The applicant’s Tribunal application is also statute-barred. The application is dismissed. As a result, it is unnecessary for me to consider the alternative grounds for dismissal advanced by the respondent.
LAW
Attendance at IEs
7Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.
8Section 37(7) of the Schedule provides that if an insured person fails to attend an examination required by an insurer under s. 44, the insurer may determine that the insured person is no longer entitled to the specified benefit and may refuse to pay the specified benefit for the period relating to the period during which the insured person failed to comply.
9Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied.
10Section 55(2) of the Schedule provides that the Tribunal may permit an insured person to apply despite paragraph 2 or 3 of s. 55(1). Section 55(3) provides that the Tribunal may impose terms and conditions on a permission granted under s. 55(2).
11The onus is on the insured person to put forward a reasonable explanation for non-attendance at an IE.3
Two-Year Limitation Period for Application to the Tribunal
12Section 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.
13Section 7 of the Licence Appeal Tribunal Act, 19994 (“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 factors5:
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.
14The onus is on the applicant to establish reasonable grounds for an extension under s. 7 of LAT Act.
Respondent’s position
15The respondent requests an Order dismissing the application on all three of the preliminary issues. Firstly, a dismissal is sought because the applicant’s claims are frivolous, vexatious or commenced in bad faith under Rule 3.4(a) of the Rules given that the application is res judicata and there is an outstanding cost award of $12,906.65 against the applicant in the FSCO proceedings denied in 2013. Secondly, a dismissal of the application for CAT determination is sought under s. 55 (1)(2) of the current Schedule because the applicant refused to attend IEs, or failing dismissal, an Order that the applicant attend IEs. The applicant’s only reason for non-attendance is that she wishes to video record the examination, something the respondent’s doctors refuse to permit as it may breach professional ethics. Thirdly, a dismissal is sought because the application it is statute barred under s. 56 because it was not brought within the two-year time limitation for doing so.
Applicant’s position
16The applicant submits that she should be allowed to proceed with her application. The applicant submits that she has always agreed to attend IEs but continues to request audio and video recordings of the examinations because of “previous unethical conduct…misconduct and abuse of power by insurer’s assessors over the years”.6 The applicant requests an Order that she attend the CAT IEs with audio and video recording under s. 42 of the Schedule and an Order that the respondent pay all interim overdue benefits and ongoing until a final LAT decision is rendered or the matter is finally settled.7
ANALYSIS
Should the Application for Benefits be Dismissed Because it was Brought Beyond the Two-Year Limitation Period?
17On June 2, 2020 the applicant filed her application to the Tribunal claiming the following benefits arising from the 2003 accident:
a. NEB of $185.00 per week for February 24, 2009 to January 27, 2013. The application indicates this has never been denied by the respondent.
b. NEB of $185.00 per week for January 28, 2013 and ongoing. The application indicates this was submitted to the respondent January 27, 2013 and has never been denied by the respondent.
c. ACB of $482.66 for January 27, 2003 to November 30, 2004. The application indicates this was denied by the respondent June 11, 2018.
d. ACB of $643.20 for February 1, 2005 and ongoing. The application indicates this was denied by the respondent June 11, 2018.
e. Housekeeping and home maintenance of $80.00 for February 26, 2005 and ongoing. The application indicates this was denied by the respondent June 1, 2020.
f. Other substantive issues are whether the applicant suffered a catastrophic impairment as a result of the accident, interest, and an award.8
18The respondent’s letter to the applicant dated March 13, 2018 (“the denial”) includes all the claims made by the applicant in her application before the Tribunal except NEB which I find to be res judicata.
19The applicant’s claims arising from the accident for caregiver benefits from August 23, 2008 to February 23, 2009, and NEB from February 23, 2009 and onwards, were determined by a FSCO hearing on the merits. These claims were denied by FSCO’s Decision and Order dated August 29, 2013 and are now res judicata before the Tribunal. There is no persuasive evidence of any material change in circumstances brought forward by the applicant. To the contrary, the respondent’s surveillance shows that the applicant was observed to move in an unobstructed fashion, engage in daily activities and was involved in working on various occasions from 2017 to 2019.
20After considering all of the evidence, submissions and legal authorities 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 application for benefits, 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.
21I find that the denial denied that the applicant is catastrophically impaired, and denied all medical and rehabilitation claims for more than 10 years after the accident, and denied both ACB, and housekeeping and home maintenance claims for more than two years after the accident.
22I find that the denial was clear and unequivocal and also gave valid medical and other reasons for the denial, a description of the dispute resolution process and time limitation. As a result, the limitation period to apply to the Tribunal started March 14, 2018 and expired March 14, 2020.
23The denial states “…we have made a determination you’re your injuries do not qualify as Catastrophic”. The reasons in the denial are clear, refer to the applicant’s refusal through her representative to attend schedule IEs regarding catastrophic determination and also sets out the medical and other reasons including:
“It has been 15 years since the motor vehicle accident. The completed Application for Determination of Catastrophic Impairment (OCF 19) was received in our office October 18, 2010 and to date you have not attended Insurer’s Examinations to determine entitlement….Further to the Insurer’s Examination Executive Summary report of Ms. Saunders, OT, dated August 13, 2008, you did not suffer an impairment from a physical or psychiatric point of view relating to the January 27, 2003 motor vehicle accident. Dr. Oshidari, states in his Physiatrist Insurer Examination report of July 26, 2008 that the assessment failed to reveal any specific neuro-musculoskeletal structural abnormality and no impairment was noted. Your condition did not fit with chronic pain syndrome. Dr. Bail states in his Psychiatrist Insurer Examination report of July 2, 2008 that numerous discrepancies and inconsistencies were noted in exam. Throughout the assessment, memory and concentration were excellent, except during formal testing, when a pattern of near miss and inconsistent responses were produced. In his opinion, prognosis was as good as it would have been had the motor vehicle accident never occurred….Upon review of updated medical documentation including the clinical notes and records of Dr. An-Huy Nguyen; Dr. Thao Nguyen, Psychologist; and Dr. Phuong P. Tran, Psychiatrist, it is determined that you have not provided any compelling evidence that you have suffered a class 4 marked impairment or class 5 extreme impairment due to mental or behavioural disorder. Therefore, it is our determination that you have not sustained a catastrophic impairment as a result of the above noted accident. This means that we refuse to pay the following benefits:
Medical and rehabilitation claims for more than 10 years after the accident date
Attendant care claims for more than 2 years after the accident date
Housekeeping and Home Maintenance claims more than 2 years after the accident date”.
24Letters from the IE assessors were enclosed with the denial. The denial advised the applicant that she had a right to dispute the refusal to pay the benefits, how to appeal to the Tribunal, and 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 with the Tribunal and advises, “If you do not apply within two years, you will lose the right to dispute the determination.”
25The respondent advised the applicant on April 6, 2020 that its position set out in the denial remained unchanged.
26The applicant provided to the respondent but never filed an application to the Tribunal in 2016 regarding housekeeping benefits. This does not deprive the applicant of her right to file an application to the Tribunal for this benefit as a result of the denial up until the expiry of the limitation period on March 14, 2020. The applicant chose not to do so.
27The applicant has submitted no evidence to establish that she did not receive the denial and makes no other challenge to the denial. The applicant’s submissions focus generally on past dealings with the respondent and on correspondence and documents not relevant to the issues before me.
No Request for Extension of Limitation Period
28Even though the applicant has not requested a s. 7 extension of the limitation period, I have considered whether, had such a request been made, I would have granted it.
29Here I find that there are no reasonable grounds for an extension under s. 7 of LAT Act and I would have declined to exercise my discretion to extend the deadline for the following reasons.
30The applicant’s evidence fails to show a bona fide or good faith intention to appeal within the appeal period. Although the applicant served but did not file an application to the Tribunal in 2016, I find that this does not constitute a bona fide or good faith intention to appeal to the Tribunal. The applicant had filed an application to FSCO previously concerning this respondent and this accident and either was aware or should have been aware of the necessity to file with the Tribunal. Further, this unfiled application pre-dated the respondent’s denial so could not have been responsive to it. There is no documentation indicating a bona fide intention to appeal between March 14, 2018 and March 20, 2020.
31The applicant did not file her application with the Tribunal until June 2, 2020, more than two months after the limitation period expired. Given that the accident was in 2003 and the applicant had already been through a FSCO proceeding concerning this respondent and this accident, and many years of correspondence, I find that in these particular circumstances this was an excessive delay. With respect to CAT, the respondent acknowledged receipt of the applicant’s OCF-19 application for determination of catastrophic impairment in it’s letter to the applicant dated November 1, 2010, and advised that it would be scheduling IE’s in order to make a determination, but the applicant refused to attend except on her terms that the IEs be video and audio recorded until February 2018, at which time the respondent sent the denial. In these particular circumstances, the applicant, who had a representative in 2018, should have filed her appeal if she wished to do so.
32In my view, 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 for many years.
33There is a lack of evidence tending to indicate that the applicant’s application has merit and the respondent’s evidence, including its surveillance, tends to indicate the opposite.
Should the Application be Dismissed as frivolous, vexatious, or commenced in bad faith under s. 3.4(a) of the Rules because it is res judicata and there are outstanding costs awarded against the applicant in favour of the respondent?
Should the Application for a Catastrophic Determination be Dismissed Because of the Applicant’s Non-Attendance at IEs?
34I have already found that the applicant’s claims for caregiver benefits and NEB arising from the accident were denied by FSCO’s Decision and Order dated August 29, 2013 and are now res judicata before the Tribunal.
35Having found that the applicant’s application is also statute-barred and having dismissed it, it is unnecessary for me to consider the alternative grounds for dismissal advanced by the respondent.
Applicant’s Request for Orders at this Hearing
36Having dismissed the applicant’s application, it is unnecessary for me to further consider the applicant request for an Order that she attend the CAT IEs with audio and video recording under s. 42 of the Schedule, an Order that the respondent pay all interim overdue benefits and ongoing until a final LAT decision is rendered, and her claims for interest and an award.
ORDER
37For the reasons above, the applicant’s claims for caregiver benefits and NEB arising from the accident are res judicata before the Tribunal. The applicant’s Tribunal application is also statute-barred. The application is dismissed. As a result, it is unnecessary for me to consider the alternative grounds for dismissal advanced by the respondent.
Released: October 7, 2021
Avril A. Farlam, Vice-Chair
Footnotes
- An appeal to the Director’s Delegate of FSCO’s August 28, 2013 decision was denied in a Decision released October 2, 2013.
- Tribunal’s case conference report and Order November 27, 2020, para 9.
- Horvath v. Allstate Insurance Co. of Canada, 2003 OFSCID No. 29, affirmed in State Farm Mutual Automobile Insurance Company v. S.R., ONSC 2086 (Div. Ct.).
- S.O. 1999, c. 12, Sched. G.
- Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (Div. Ct.).
- Written Submissions of the Applicant Binh Nguyen, dated January 27, 2021, paras 7 and 9.
- Written Submissions of the Applicant Binh Nguyen, dated January 27, 2021, paras 40 and 41.
- See Tribunal’s November 27, 2020 case conference report and Order, para 10.