Licence Appeal Tribunal File Number: 20-010532/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:
Ly Mai
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Avril A. Farlam
APPEARANCES:
For the Applicant: Georgiana Masgras, counsel
For the Respondent: Michael J.L. White and Riley Gorskopf, counsel
HEARD: By way of written submissions
BACKGROUND
1Ly Mai (“applicant”) was involved in an automobile accident on February 21, 2015 (“accident”), and sought benefits pursuant to the Statutory Accident Benefits Schedule1 - Effective September 1, 2010 (the ''Schedule'').
2Aviva Insurance Company of Canada (“respondent”) paid income replacement benefits (“IRB”) claimed by the applicant. By letter dated March 9, 2018 the respondent informed the applicant its assessors had found her ineligible and it would not consider further IRB past March 23, 2018.
3The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) on September 11, 2020.
4The respondent brought a motion March 22, 2021 seeking an Order of the Tribunal dismissing this application as statute barred by s. 56 of the Schedule.
ISSUE
5The issue before me is whether the applicant’s application should be dismissed as statute barred by s. 56 of the Schedule because she failed to bring her application within the two year time limit.
RESULT
6The applicant’s application is statute-barred. As a result, the applicant has no claim to post-104 week IRB. This application is dismissed.
LAW
7An 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.
8Section 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.
9Section 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.
10The onus is on the applicant to establish reasonable grounds for an extension under s. 7 of LAT Act.
Respondent’s position
11The respondent submits in its 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 dated March 9, 2018 and she should be held to the limitation period. The respondent also 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 in the alternative submits that the applicant has not satisfied the factors for doing so.4
Applicant’s position
12The applicant submits that the respondent has failed to adduce evidence that the denial letter was sent to the applicant, that the applicant did not discover the denial until she read correspondence from her lawyer dated August 24, 2020, that the COVID regulation extended the time limit for her application and therefore her application was in time. Alternatively, the applicant alternatively seeks an extension of time under s. 7 of the LAT Act and submits that she meets the grounds for an extension of time.
ANALYSIS
Is the Applicant’s Tribunal Application Statute-Barred?
13After 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.
14I find that the respondent denied IRB to the applicant in its letter dated March 9, 2018 and that the respondent’s written denial was clear, unequivocal, not confusing or ambiguous. The respondent’s denial and the reasons for it in the letter are clear, including the fact that five of the respondent’s assessors had concluded the applicant does not meet the eligibility criteria for post 104 week IRB, enclosed the s. 44 reports referred to, and included a warning that the applicant had two years from the date of the respondent’s denial to dispute the decision by filing an application with the Tribunal.
15Although the applicant submits that the respondent has failed to adduce evidence that the denial letter was sent to the applicant, on cross-examination on her affidavits submitted in response to this motion, the applicant admitted that her lawyer received the denial letter on March 9, 2018. The applicant testified that she had absented herself from Ontario at the time the denial was delivered, was living in Vietnam, and had not asked anyone to collect her mail. The applicant also testified that she relied on her lawyer, Mr. Benjamin, to keep track of limitation periods.
16On the evidence before me, I find that the applicant’s lawyer who represented her with respect to this IRB claim with the respondent was her agent with respect to receiving communications from the respondent and her lawyer received the denial letter on its date. In her submissions, the applicant concedes that productions continued to be exchanged by the applicant’s lawyer and subsequent to the post-104 denial. As a result, I find that the applicant received the denial on its date because her lawyer received the denial as her agent. The COVID 19 regulation does not assist the applicant on these particular facts as it came into effect after the date of the March 9, 2018 denial letter.
17I find unpersuasive the applicant’s submission that the applicant did not discover the denial until she read correspondence from her lawyer dated August 24, 2020. The principle of discoverability requires that the material facts on which the cause of action is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence.5 Here, the applicant left the jurisdiction, did not ask any person to collect her mail for her while she was in Vietnam, and did not tell her landlord she may be expecting mail. Given that the applicant was receiving accident benefits prior to the denial and admitted in her cross-examination that she was aware of the existence of a two year limitation period, she did not exercise reasonable diligence in making arrangements to receive communications from the respondent funding her IRB except through her accident benefits lawyer.
18The applicant has failed to put forward any evidence that she notified the respondent that she would be out of the country between January, 2018 and April 4, 2018, despite the respondent’s request at her cross-examination on her affidavits to provide proof that she notified the respondent that she would be out of the country. The applicant has not put forward any satisfactory explanation as to why she was not in contact with her lawyer after the IRB payments stopped in March 2018. I find that the denial was discoverable upon the delivery of the denial, and that had the applicant exercised reasonable diligence, which I find she did not do in these particular circumstances, she would have discovered her claim in time.
19Although the applicant submits that the limitation should commence on the date the payment of IRB stopped, which the applicant says is March 24, 2018, this submission is contrary to the clear wording of s. 56 which 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”. On a plain reading of s. 56, it is the date of denial and not the date that payment ceases that starts the two year limitation period as the Tribunal has said before and I agree with that principle.6
20I find that the limitation period for filing her claim for post-104 week IRB expired March 9, 2020.
21Here, 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 until the respondent determined her ineligible. The applicant chose not to pursue her right to challenge the respondent’s denial of IRB within two years after March 9, 2018.
Applicant’s Request for Extension of the Limitation Period
22Although 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, this is incorrect and has now been settled by the court.7 As a result, I have considered the applicant’s request for a s. 7 extension of the limitation period.
23I 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.
24The applicant’s evidence fails to show a bona fide or good faith intention to appeal within the appeal period. I have found that the appeal period ended on March 9, 2020, two years after the respondent communicated to the applicant’s agent, her lawyer, its denial of IRB. Payments stopped shortly after. There is no documentation establishing a bona fide intention to appeal between the date of denial and March 9, 2020. Undated correspondence contained in the file regarding settlement discussions is not enough to establish a good faith intention to appeal the IRB denial within the appeal period.
25The applicant did not file her IRB claim with the Tribunal until September 11, 2020. This was an excessive delay of more than five months after the limitation period expired.
26I accept the respondent’s submission that, given this length of time, there is incurable prejudice to the respondent and uncertainty would result to insurers if the statutory limitation period was disregarded. I also note that the respondent has been denied the opportunity to obtain evidence as to the applicant’s ongoing medical and vocational state during the last several years.
27The applicant has failed to establish that her application has merit. Although the applicant submits that the applicant was paid IRB for two years and catastrophic impairment assessments were approved by the respondent which has assigned this claim to its major claims unit, it is the merits of the post 104 week IRB that is at issue here. The post 104 week IRB entitlement test is different from, and more stringent than, the first 104 week IRB test. Based on the record before me, I find that the applicant is unlikely to be able to satisfy her burden of meeting the post-104 eligibility test of complete inability to engage in any employment. The applicant has been employed as a bilingual service representative speaking both English and Vietnamese and was able to travel internationally at the time of the denial.
28I find that the justice of the case does not require the granting of an extension to the applicant in these particular circumstances.
ORDER
29For the reasons above, the applicant’s Tribunal application is statute-barred. As a result, the applicant has no claim to post-104 week IRB. The application is dismissed.
Released: January 19, 2022
_______________________
Avril A. Farlam, Vice Chair
Footnotes
- O.Reg. 34/10
- S.O. 1999, c. 12, Sched. G.
- Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (Div. Ct.)
- Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (Div. Ct.)
- Pioneer Corp. v. Godfrey, 2019 SCC 42 at para. 31 (S.C.C.)
- See for example: G.P. and Aviva Insurance Company of Canada, 2017, para 28 (Exec.Chair)
- In June 2021, the Divisional Court confirmed in Fratarcangeli v. North Blenheim, 2021 ONSC 3997 at para 30 onwards (especially para 61) that LAT has jurisdiction per s. 7 of LAT Act