Ahmed v. Economical Insurance Company, 2023 CanLII 122886

Ahmed v. Economical Insurance Company, 2023 ONLAT 22-009078/AABS-PI

Licence Appeal Tribunal File Number: 22-009078/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:

Hodhan Ahmed

Applicant

and

Economical Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Rajiv Kapoor, Paralegal

For the Respondent:

Nivedita Misra, Counsel

Heard by way of written submissions:

OVERVIEW

1Hodhan Ahmed, the applicant, was involved in an automobile accident on October 2, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied certain benefits by the respondent, Economical Insurance Company (“Economical”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES IN DISPUTE

2The preliminary issues to be decided are:

1. Is the applicant barred from proceeding to a hearing for the non-earner benefit in dispute because the applicant failed to file an OCF-10 to confirm an election of benefits (non-earner benefit versus income replacement benefit) and has now failed to file their dispute within the two-year limitation period?

2. Is the applicant barred from proceeding to a hearing for the psychological assessment ($2,200.00) in dispute because the applicant failed to dispute their denial within the two-year limitation period?

RESULT

3The applicant may proceed with her application.

ANALYSIS

Background

4The applicant was involved in an automobile accident on October 3, 2019. The respondent provided the applicant with an Application for Accident Benefits (“OCF-1”) on October 21, 2019. The applicant submitted her OCF-1. In a letter dated November 1, 2019, she was advised that she was not eligible for the income replacement benefit (“IRB”) based on the information that was provided. She was informed that she needs to submit a disability certificate (“OCF-3”) for the respondent to determine whether she would be eligible for the non-earner benefit (“NEB”).

5On November 14, 2019, the respondent acknowledged receipt of the disability certificate (“OCF-3") and advised that she would need to attend an insurer’s examination to determine her entitlement to the NEB. The IEs were completed, and it was determined that she did not meet the test for the NEB. Her claim was denied on February 14, 2020.The applicant filed an application with the Tribunal on August 18, 2023. The applicant is seeking entitlement to both the IRB and NEB.

Parties’ positions

6The respondent submits that the applicant has not submitted an OCF-10 election form and she cannot claim both the IRB and NEB. Furthermore, the applicant did not dispute its denial of the NEB and the treatment plan in the amount of $2,200.00 for the psychological assessment within the limitation period of two-years pursuant to section 56.

7The applicant submits that she withdrew the IRB as an issue in dispute and is proceeding with the NEB. Furthermore, it is her position that the respondent never requested an OCF-10 and has not provided any evidence that it provided notice to the applicant that it required an OCF-10. The applicant concedes that there is a delay in submitting her application disputing the respondent’s denial of the NEB and the treatment plan, but it is minor delay and should not stop her from pursuing benefits.

OCF-10

8Section 35(1) of the Schedule states that:

If an application indicates that the applicant may qualify for two or more of the income replacement benefit, the non-earner benefit and the caregiver benefit under Part II, the insurer shall, within 10 business days after receiving the application, give a notice to the applicant advising the applicant that he or she must elect, 30 days after receiving the notice, the benefit he or she wishes to receive.

9The respondent requests that the Tribunal statute-bar the applicant from proceeding with her NEB claim due to her alleged failure to submit an OCF-10. Upon reviewing the documents from both parties, I find that there is no evidence that the respondent provided the applicant with notice as per the requirements of section 35(1). Nor is there any evidence that shows that the respondent requested the OCF-10 from her. There is no mention of the OCF-10 in the adjuster’s log notes.

10The respondent has made submissions regarding the OCF-10 but has failed to direct the Tribunal to evidence that demonstrates that the applicant was provided with the OCF-10 or that the respondent requested that she make an election within 30 days after receiving it. I accept the applicant’s position and find that she was not given the notice that is required under section 35(1) of the Schedule. I decline to bar the applicant’s claim for an NEB on this basis. The applicant may proceed with her application for the NEB because the respondent did not furnish her with the proper OCF-10 election form and did not provide notice of the requirement for election under section 35(1).

11The next part of my analysis will address whether the NEB, along with the treatment plan, should be statute-barred due to the applicant’s failure to dispute the benefits within two years.

[Emergency Management and Civil Protection Act,](https://www.canlii.org/en/on/laws/stat/rso-1990-c-e9/latest/rso-1990-c-e9.html) [R.S.O. 1990, c. E.9](https://www.canlii.org/en/on/laws/stat/rso-1990-c-e9/latest/rso-1990-c-e9.html)

12On 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.

13The NEB was denied on February 14, 2020. The limitation period for the NEB expired on August 16, 2022. The treatment plan for a psychological assessment was denied on January 24, 2020. The limitation period expired on July 26, 2022.

14The applicant filed her application with the Tribunal on August 18, 2022. Therefore, the NEB was filed two days late and the treatment plan was filed 23 days late.

The extension of the limitation period is granted

15Section 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.

16Section 7 of the Licence Appeal Tribunal Act, 1999, SO 1999, c 12, Sch G (“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 factors:

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.

17These 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.

Bona fide intention

18The applicant submits that she intended to dispute the denied benefits. She points to the fact that she requested the complete copy of the accident benefits file and wrote to multiple facilities requesting information because she was in the process of disputing the denials. The respondent submits that the applicant did not prove a bona fide intention to appeal prior to the limitation date. I find that the applicant had a bona fide intention to appeal prior to the limitation date as the evidence shows that she requested documents from the respondent and facilities for the purpose of disputing the denials at the Tribunal within the limitation period.

The length of the delay

19The applicant submits that the delay is minor. The respondent concedes that there is no delay on their end in terms of the adjustment of the file. I agree. The delay is not excessive. Moreover, the applicant’s counsel requested a copy of the file and the adjuster’s log notes confirm that there was a delay in responding. In my view, this contributed to the delay. Given the circumstances, I find the delay to be minor.

Prejudice to the party

20The applicant submits that there is no prejudice to the respondent if the matter were to proceed. However, it would be extremely prejudicial if she would be barred from proceeding. The respondent submits that it would face prejudice because they would need to obtain updated reports as the previous IE reports are outdated. In my view, there is some degree of prejudice to both parties.

Merits of the appeal

21The respondent submits that there is no merit to this appeal but does not further articulate why. Similarly, the applicant’s submissions do not articulate whether there is merit to this appeal.

Discretion

22I find that the applicant met her onus to demonstrate that the limitation period for commencing her application should be extended because the delay is so minor that there is no prejudice. As such, I am exercising my discretion under section 7 of the LAT Act to extend the limitation period and allow her to proceed with her application before the Tribunal.

ORDER

23It is ordered that the matter will proceed to the substantive issues hearing on all of the substantive issues listed in paragraph 3 of the case conference report and order dated May 25, 2023.

Released: November 10, 2023

___________________________

Tavlin Kaur

Adjudicator