Tamayo v. Travelers Insurance, 2022 CanLII 70282

Citation: Tamayo v. Travelers Insurance, 2022 ONLAT 20-014625/AABS -M

Licence Appeal Tribunal File Number: 20-014625/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Inima Tamayo

Applicant

and

Travelers Insurance

Respondent

MOTION DECISION

ADJUDICATOR:

Craig Mazerolle

Written Submissions from:

Representative for the Applicant:

Sam Elbassiouni, Paralegal

Representatives for the Respondent:

Linda Matthews, Counsel

Saro Setrakian, Counsel

Order Dated:

August 2, 2022

BACKGROUND

1The applicant was injured in a motor vehicle accident on March 24, 2017. To assist in her recovery, she sought benefits from the respondent, pursuant to the Statutory Accident Benefits Schedule (the “Schedule”)¹. When the respondent refused some of these requests, the applicant applied to the Tribunal to dispute these denials on December 9, 2020.

2The issues in this application included requests for an income replacement benefit (“IRB”) and ten treatment plans. A hearing is set for November 21 – 25, 2022.

3By way of a Notice of Motion (submitted February 28, 2022), the respondent raised a limitation defence, pursuant to s. 56 of the Schedule. Briefly, it alleged that the applicant failed to challenge the denial of the IRB within the two-year limitation period. The applicant accepted that her application to contest the IRB denial was filed after the limitation period, but she asked the Tribunal to use its discretion to extend this limitation period, pursuant to s. 7 of the Licence Appeal Tribunal Act, 1999 (the “LAT Act”)².

4For the reasons to follow, I will use s. 7 to allow the applicant to proceed with her application for an IRB.

ANALYSIS

5Section 56 of the Schedule requires an applicant to commence a proceeding “in respect of a benefit… within two years after the insurer’s refusal to pay the amount claimed.”

6Section 7 of the LAT Act provides the following discretion to the Tribunal to extend this and other limitation periods:

Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of the Tribunal under section 11 or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,

(a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and

(b) give the directions that it considers proper as a result of extending the time.

Calculating the Length of Delay

7Before turning to my analysis of s. 7, I must first address the length of the delay between the end of the limitation period and the filing of the application.

8The parties agree that the IRB was denied in a letter dated May 25, 2018, however, in accordance with s. 64(18) of the Schedule, the applicant contended that the deemed arrival of this letter did not take place until June 1, 2018. There was no objection to this argument in the respondent’s reply.

9I accept the application of s. 64(18) applies to the denial letter, such that the deemed receipt of this correspondence took place on June 1, 2018. As such, the two year mark after receipt of the denial letter took place on June 1, 2020.

10I then accept that s. 2 of Limitation Periods³ applies to the calculation of this limitation period. As both parties noted in their submissions, this regulation meant the limitation periods for all claims during the early months of the COVID-19 pandemic were extended by several months. Specifically, limitation periods were suspended between March 16 and September 14, 2020, i.e., 183 days. As such, I find the application for contesting the denial of the IRB was due to be filed on December 1, 2020.

11Taken together, I am satisfied that the delay between the end of the limitation period and the filing of the application on December 9, 2020 is eight days.

Parties’ Positions

12In line with Manuel v. Registrar, Motor Vehicle Dealers Act⁴; Fratarcangeli v. North Blenheim Mutual Insurance Company⁵; and Sharma v. Allstate Insurance⁶, both parties accepted that there are four factors the Tribunal will consider when deciding whether to engage s. 7 of the LAT Act:

(1) Bona fide intention to appeal within the time limit;

(2) Length of delay;

(3) Prejudice to the other party; and,

(4) Merits of the appeal.

13The respondent argued that these four factors all lean against granting the applicant’s request. First, there is no compelling evidence that she intended to apply within the time limit, e.g., no affidavit. What is more, the applicant was represented in the lead up to the two-year mark, and the limitation period freeze provided her several additional months to file an application. Second, any delay—no matter the length—is inefficient. For the third factor, the respondent similarly noted that there is prejudice arising from this missed limitation period, because it now has to respond to the application (all without a reasonable excuse from the applicant). Finally, though it noted that there is no need for a full appraisal of the merits at this stage, the respondent challenged the applicant’s IRB claim. Briefly, the accident was minor; the applicant returned to work shortly thereafter; and she likely stopped working for reasons unrelated to the accident.

14In response, the applicant argued that a delay of eight days should not stop her from pursuing this much-needed benefit. To start, the applicant highlighted a fax that a former legal representative sent to one of her treating specialists (dated November 12, 2020). This fax was sent before the limitation period ended, and it asked for her medical file to assist in preparing her Tribunal application. The applicant also highlighted the medical disclosure she provided to the respondent following the denial. The applicant then challenged the respondent’s position that the limitation period freeze should be counted as part of the time she had to file an application. Finally, she disputed the respondent’s position on the merits of her IRB claim, e.g., she has been approved for CPP-D benefits.

15In reply, the respondent disputed the applicant’s reliance on the November 12, 2020 fax. Not only was this fax sent by her legal representative (not the applicant herself), but it was a boilerplate letter that did not indicate any intention to dispute the IRB denial. In fact, the letter anticipated using this file to try and “mediate” the claim. The respondent also asked the Tribunal to disregard the personal hardship noted by the applicant, as these arguments are irrelevant to the test for s. 7.

Four-Factor Test

16To start, I do not find the delay of eight days is excessive. I accept the respondent’s observation that any delay should be avoided, as there is an inherent inefficiency to any missed limitation period. However, I am still satisfied that eight days is not an excessive delay.

17The respondent cited Rathakrishnan v. Aviva Insurance Company for the proposition that a 20-day delay was found by the Tribunal to be “not an insignificant amount of time”.⁷ Yet, this observation was paired with the adjudicator’s finding that this applicant did not provide “any indication to the respondent that she intended to appeal…”⁸ As I will explain, I do not reach the same finding, because I am satisfied that the applicant has shown a bona fide intention.

18The most contested point between the parties was whether the applicant had a bona fide intention to contest the IRB denial within the time limit. The applicant relied on the November 12, 2020 fax, as well as the medical disclosure that took place following the denial. The respondent challenged her reliance on these records, and I do accept its argument about why little weight should be placed on the applicant’s medical disclosure. However, I do not accept its argument about the November 12, 2020 fax.

19The respondent is correct to note that medical disclosure between insured persons and their insurers is to be expected. The accident benefits system requires open and regular disclosure of medical information to ensure the effective adjusting of claims. Allowing this kind of routine exchange to constitute a bona fide intention to appeal would not only render this factor effectively meaningless, but it would turn any kind of disclosure into an act of anticipated litigation. The relationship between an insured person and their insurer is meant to be collaborative, so this exchange alone should not be seen as a precursor to a legal dispute.

20On the other hand, I accept that the November 12, 2020 fax is a clear indication that the applicant intended to appeal the IRB denial within the time limit. Not only was this correspondence sent several weeks before the limitation period expired, but the letter stated that the applicant’s medical file was being requested for the purpose of filing an application: “We are preparing an Application for an Injured Person to mediate our client’s medical file.” This statement demonstrates an intention to pursue a dispute with the Tribunal, and it allows me to find there was a bona fide intention on the part of the applicant to appeal within the time limit.

21In reaching this finding, I do not place much weight on the respondent’s arguments about this fax.

22First, I accept that clearer language could have been used to specify the exact benefits the applicant sought to dispute, and the word “mediate” might suggest some additional steps were going to take place before filing the application. Yet, while this more direct wording would have been helpful, I still find this fax registers a bona fide intention to use the specialist’s file to pursue litigation at the Tribunal.

23I also do not place weight on the respondent’s contention that a letter or affidavit from the applicant herself was needed to demonstrate the intention to appeal. Considering there was a signed authorization form from the applicant attached to this fax, I accept that her legal representative’s request for this medical file was done at her behest. The request letter is, therefore, indicative of her intention to appeal at that point in time.

24Turning to the merits of the disputed benefit, and with the caveat that an in-depth appraisal of the IRB claim would be inappropriate at this stage, I find that there appears to be some merit to the applicant’s case. In short, the applicant has provided reasonable and believable responses to the respondent’s concerns about her post-accident employment (e.g., her approval for CPP-D benefits in late 2020). She has also put forward an alternative explanation for how her employment history should be understood, i.e., she sought out less physical work on account of her accident-related impairments. Again, my role at this stage is not to weigh the parties’ respective positions to make a determination on entitlement. Instead, I am satisfied that there is an arguable, meritorious case that the applicant can make about her IRB claim, such that this factor leans in favour of engaging s. 7.

25Finally, in regard to prejudice, the respondent again argued that the Tribunal must be mindful of the inherent prejudice caused by any missed limitation period. It also noted that this stage of the test does not require the Tribunal to consider the relative levels of prejudice facing the parties—only the prejudice it is facing. I accept both of these observations.

26Yet, despite the prejudice that the respondent faces from this missed limitation period, I do not find the prejudice arising from an eight-day delay is significant enough to alter my overall conclusion about s. 7. Again, this delay is not excessive, and so—without raising any specific forms of prejudice that it is facing from this delay (aside from a general need to ensure timeliness)—I do not place much weigh on this factor.

27The respondent asked me to consider the limitation period freeze in determining the reasonableness of the applicant’s extension request. I do not accept this line of reasoning. Section 2 of the Limitation Periods regulation was an emergency measure meant, in part, to assist the legal profession’s handling of the COVID-19 pandemic. To ask the Tribunal to count this time in its determination of the reasonableness of a limitation period extension would amount to asking the Tribunal to disregard the freeze. In essence, this regulation removed the requirement for the applicant to take steps to pursue her application during the early months of the pandemic, and it would be unreasonable to consider this period as additional time at her disposal.

28In sum, the applicant demonstrated a bona fide intention to pursue her claim for an IRB within the prescribed time limit. She missed the deadline by eight days, but—despite the inherent prejudice arising from any missed limitation period—I find the four-factor test from s. 7 of the LAT Act leans in favour of granting this discretionary relief.

ORDER

29Pursuant to s. 7 of the LAT Act, I will extend the time for the applicant to file her application to the Tribunal.

30I find the applicant may proceed with her application to dispute the denied IRB.

Footnotes

1. 1Effective September 1, 2010, O. Reg. 34/10.
2. 2S.O. 1999, c. 12, Sch. G.
3. 3O. Reg. 73/20, a regulation enacted under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17.
4. 42012 ONSC 1492 (Div. Ct.).
5. 52021 ONSC 3997 (Div. Ct.).
6. 62022 ONSC 803 (Div. Ct.).
7. 72021 CanLII 30854 (ON LAT), at para. 30.
8. 8Ibid.