Alam v. TD General Insurance Company, 2022 CanLII 114471

Alam v TD General Insurance Company

Citation: Alam v TD General Insurance Company, 2022 ONLAT 21-013221/AABS and 21-014607/AABS - PI

Licence Appeal Tribunal File Number: 21-013221/AABS, 21-014607/AABS

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:

Saadat Alam

Applicant

and

TD General Insurance Company

Respondent

PRELIMINARY ISSUE DECISION [ORDER]

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Saadat Alam, Applicant

Camille Narine-Ramrattan, Paralegal

For the Respondent:

Tania Shah, Adjuster

Olga Elmanova, Counsel

Written Hearing:

Heard by way of written submissions

REASONS FOR DECISION [AND ORDER]

OVERVIEW

1The applicant was injured on May 31, 2017 and September 16, 2018 in two separate motor vehicle accidents. He sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”).

2The respondent raised a preliminary issue at the case conference and as a result, this written preliminary issue hearing was scheduled.

PRELIMINARY ISSUES

3Is the applicant barred from proceeding with a hearing because the applicant did not dispute the denial of the following benefits within the 2-year time limitation?

i. May 31, 2017 date of loss: $2,125.00 for psychological services, proposed by Alexmuir Wellness Centre in a treatment plan submitted December 9, 2017 and denied December 21, 2017;

ii. May 31, 2017 date of loss: $3,426.16 for physiotherapy services, proposed by Alexmuir Wellness Centre in a treatment plan submitted December 6, 2017 and denied December 20, 2017; and

iii. September 16, 2018 date of loss: $2,190.00 for a chronic pain assessment, proposed by Alexmuir Wellness Centre in a treatment plan submitted November 5, 2019 and Denied November 8, 2019?

RESULT

4I find that the applicant is statute-barred from proceeding before the Tribunal with issues i and ii in relation to file number 21-013221/AABS for the May 31, 2017 accident.

5I find that the applicant is not barred from proceeding before the Tribunal with issue iii in relation to file number 21-014607/AABS for the September 16, 2018 accident.

ANALYSIS

6Section 56 of the Schedule provides that an application to dispute a denial of a benefit shall be commenced within two years of the insurer’s refusal to pay.

7On or about October 9, 2021, the applicant submitted his application via mail for the 2017 accident to the Tribunal. The application was in relation to treatment plans that were denied December 20, 2017, and December 21, 2017. The respondent asserts that the applicant missed the limitation period by approximately 22 months.

8On or about November 22, 2021, the applicant submitted his application via mail for the 2018 accident to the Tribunal. The application was in relation to a treatment plan that was denied on November 8, 2019. The respondent asserts that the applicant missed the limitation period by 15 days.

9The respondent submitted that the applicant's applications should be struck as they were brought past the limitation period and breached s. 56 of the Schedule. The applicant had ample time to submit his application to the Tribunal. Moreover, he received clear and unequivocal denial letters.

10Specifically, the letters (1) confirmed the reason why the applicant was not eligible, (2) confirmed that he did not qualify for the benefits, (3) contained "applicant's right to dispute" which provided guidance as to how the applicant could dispute the refusal and (4) provided a clear warning of the two-year limitation period. At all material times, the applicant had counsel who assisted him with respect to his accident benefits claim.

11The respondent argued that to allow the applicant to proceed with a hearing on the issues at this stage is severely prejudicial, is wholly inappropriate and defeats the purpose of the limitation period legislation that was specifically added into the Schedule.

12The applicant did not provide any submissions.

13The Tribunal can take notice of the contents of its adjudicative file. This includes, among other things, an application by which a proceeding before a Tribunal is commenced. My review of the Tribunal’s adjudicative file leads me to conclude that the applicant filed his application for dispute resolution on or about October 27, 2021.

14Based on the evidence before me, I find that the applicant’s application (21-013221/AABS) for the May 31, 2017 accident was filed beyond the presumptive two-year limitation period to appeal the denials. The applicant had until December 20, 2019 and December 21, 2019 respectively to appeal the denial of the treatment plans associated with this accident (issues i and ii) to the Tribunal. The applicant did not appeal these denials within the two-year timeframe.

15With respect to the application (21-014607/AABS) for the September 16, 2018 accident, I find that it was filed within the timeframe. The treatment plan related to this accident (issue iii) was denied by the respondent on November 8, 2019. In normal circumstances, the applicant would have had until November 8, 2021 to dispute the denial. However, the respondent has failed to consider the fact that the limitation period was extended due to the pandemic.

16On March 20, 2020, Ontario enacted O. Reg. 73/20. This regulation suspended limitation periods retroactively from March 16, 2020 and was repealed on September 14, 2020. This legislation was in force for 183 days. As such, a limitation period that began running before March 16, 2020 can be extended by 183 days. This was affirmed in McAuley v Canada Post Corporation, 2012 ONSC 4528, where the Ontario Superior Court of Justice found that O. Reg. 73/20 extended all running limitation periods by 183 days.

17The limitation period for this application started running before March 16, 2020 and can be extended by 183 days. Therefore, I find that the applicant was within the limitation period and is not barred from proceeding with this application.

Section 7 of the Licence Appeal Tribunal Act (‘LAT Act’)

18Section 7 of the LAT Act affords the Tribunal statutory discretion to extend the time for commencing a proceeding in certain circumstances if it is satisfied that there are reasonable grounds for applying for the extension and for granting relief. There are four factors that the Tribunal weighs in determining whether the justice of the case requires that an extension be granted:

i) the existence of a bona fide intention to appeal within the appeal period;

ii) the length of the delay;

iii) prejudice to the other party; and

iv) the merits of the appeal.

19These four factors, which are referred to as the “Manuel factors”, are not strict elements that must each be met in order to grant an extension of time. Rather, they are a guide to assist in determining the justice of the case. The onus is on the applicant to satisfy me that the justice of the case favours an extension of the time to appeal.

20The applicant did not request an extension of the limitation period and as a result has not met his onus to establish reasonable grounds for an extension under s. 7 of the LAT Act. I decline to exercise my discretion to extend the deadline for the applicant’s application (21-013221/AABS) in relation to the May 31, 2017 accident.

ORDER

21For the reasons above, I find that the applicant is statute-barred from proceeding before the Tribunal with issues i and ii in relation to file number 21-013221/AABS for the May 31, 2017. The application is dismissed.

22I order that the applicant may proceed before the Tribunal with issue iii in relation to file number 21-014607/AABS for the September 16, 2018 accident.