Gefon v. Aviva General Insurance Company, 2022 CanLII 16931
Licence Appeal Tribunal File Number: 20-010471/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8, in relation to statutory accident benefits.
Between:
Anna Gefon
Applicant
and
Aviva General Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR: Lindsay Lake, Vice Chair
APPEARANCES:
For the Applicant: Michael Krylov, Counsel
For the Respondent: Jonathan Wiesenthal, Counsel
HEARD: By Way of Written Submissions
BACKGROUND
1The applicant, Anna Gefon, was injured in an automobile accident on December 8, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)1 from Aviva General Insurance Company, the respondent.
2The respondent denied the applicant’s various claims for chiropractic treatment because it had determined that all of the applicant’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (MIG).2 As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) on September 10, 2020.
3At the case conference held on June 30, 2021, the respondent raised a preliminary issue regarding the June 6, 2017 treatment plan for chiropractic treatment. The respondent’s position was that the applicant was statute-barred from proceeding with her claim because she failed to apply to the Tribunal within the limitation period of two years after the respondent’s refusal to pay. As a result, a written preliminary issue hearing was scheduled.
PRELIMINARY ISSUE
4The following preliminary issue is to be decided:
i. Is the applicant statute-barred from pursuing her claim to the Tribunal for a treatment plan dated June 6, 2017 for chiropractic treatment in the amount of $2,738.00 due to the limitation period in s. 56 of the Schedule?
RESULT OF PRELIMINARY ISSUE
5I find that the applicant is statute-barred from pursuing her claim for the June 6, 2017 treatment plan for chiropractic treatment to the Tribunal as she applied to the Tribunal outside of the two-year limitation period as prescribed by the Schedule.
ANALYSIS
6Under s. 56 of the Schedule, an applicant has two years after the insurer’s refusal to pay the amount claimed to dispute the denial.
7The respondent submitted that it denied the June 6, 2017 treatment plan by way of July 24, 2017 correspondence which stated:
We maintain out denial of the Treatment and Assessment Plan (OCF-18) dated June 6, 2017 from Health-Pro Wellness. Please accept this letter as our formal response and denial of this Treatment and Assessment Plan and any associated invoices.3
8The July 24, 2017 letter also included information on the applicant’s right to dispute the denial. Specifically, the letter stated:
WARNING: TWO YEAR TIME LIMIT
You have TWO YEARS from the state of your insurance company’s refusal to pay, or reduction of a benefit, to file an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service. If you do not apply within two years, you will lose the right to dispute the determination [emphasis in original].
9The respondent submitted that its denial of the treatment plan met the requirement of being “clear and unequivocal” as required by the Supreme Court of Canada decision of Smith v. Co-operators General Insurance Co. (Smith)4 as it used straightforward and clear language directed to an unsophisticated person. The respondent also submitted that its July 24, 2017 correspondence included the required information on the dispute resolution process.
10The applicant, however, submitted that there was no clear and unequivocal denial of the June 6, 2017 treatment plan. To support its position, the applicant relied upon a March 26, 2018 letter from the respondent. In this letter, the respondent advised the applicant of her required attendance at an Insurer’s Examination (IE) on July 5, 2017, some eight months prior to the March 26, 2018 letter, in relation to the disputed June 6, 2017 treatment plan. This letter also stated:
We’re unable to determine whether the recommendations on your OCF 18 are reasonable and necessary for the injuries you sustained and we’re not able to pay your benefits at this time.
In the meantime,