Licence Appeal Tribunal File Number: 23-002528/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:
Soosaipillai St. Nicolous
Applicant
and
Intact Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Tal Eshel, Counsel
For the Respondent:
Farzana Merchant, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Soosaipillai St. Nicolous, the applicant, was involved in an automobile accident on March 25, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company (“Intact”), and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is whether the applicant is barred from proceeding with his claim for benefits noted under the substantive issues category as he failed to commence his application within two years after the respondent’s refusal to pay the amount claimed?
RESULT
3The applicant is not barred from proceeding with his claims for benefits.
ANALYSIS
Parties’ positions
4The respondent submits that the applicant is statute barred from proceeding with the application by virtue of section 56.
5The applicant did not file any submissions or evidence.
The Law
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.
7In order for the provision under section 56 to be triggered, I must determine whether the respondent’s notice of denial was proper in accordance with the principles set out in Smith v. Co-operators General Insurance Co, 2002 SCC 30 (“Smith”). According to Smith, the refusal to pay the benefit must contain straightforward and clear language, it must be directed towards an unsophisticated person, it must outline the dispute resolution process and the relevant time limits that govern the process, and it must provide valid or other reasons for the denial.
8Defining with precision an unsophisticated person is a challenging task; however, the Court’s direction in Smith clearly recognizes that greater accessibility of an insured person to the informational content of the denial notice is of paramount importance and must necessarily account for the variety of persons and backgrounds who may make claims for accident benefits. Accordingly, Smith requires a denial notice to be as specific and accessible as possible to ensure that there is no ambiguity in what a notice means when read by an unsophisticated person.
9Further, the notice must provide a valid medical and any other reason for the denial. I note that the Divisional Court in Hedley v. Aviva Insurance Company of Canada (“Hedley”), 2019 ONSC 5318 considered the reconsideration decision of B.H. v. Aviva Insurance Company, which in turn applied T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) (“T.F.”). The Court found no basis to intervene as the decision was within the reasonable range of outcomes.
10The principles were set out by the Tribunal in T.F. in which Executive Chair Lamoureux stated, at para. 19:
[…] an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.
11This means the notice at the very least should explain what the insured person’s medical conditions are and why those conditions do not justify entitlement to the benefit claimed. By providing this information, the insured person will have a better understanding of the insurer’s determination. It is then that the consumer protection mandate of the Schedule is achieved.
12Moreover, I note that the Court in Hedley found that boilerplate medical reasons for denials of treatment plans submitted under the Schedule constitute as no reasons at all. Reasons must be meaningful in order to permit the insured person to decide whether or not to challenge the insurer’s determination.
13If an insurer’s notice of denial to an insured person does not satisfy these requirements, the denial may be determined to be invalid and fail to trigger the two-year limitation period.
14However, if the notice of denial does satisfy these requirements, then the onus is on the applicant to establish reasonable grounds for an extension under Section 7 of the Licence Appeal Tribunal Act, 1999 (“LAT Act”). Section 7 allows the Tribunal to extend a limitation period for filing an appeal to it. In considering whether to exercise its discretion to extend the limitation period, the Tribunal must consider the following four factors to determine if the justice of the case requires the extension:
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.
15No one factor is determinative in this analysis.
The denial letter dated July 13, 2019 for the psychological assessment in the amount of $2,250.53 is defective.
16I have reviewed the denial letter dated July 3, 2018 and find that it does not comply with the requirements under section 38(8). The medical reason is, “There is insufficient compelling evidence such as pre-existing injuries or conditions or medical documentation to suggest that the accident injuries fall outside of the Minor Injury Guideline and if they are reasonable and necessary.”
17In my view, the reasons provided are vague. There are no references made to his medical conditions. It is unclear what his medical conditions or impairments are. Nor is there any explanation regarding how having a pre-existing injury or condition may result in the individual being removed from the MIG. This explanation is not geared towards an unsophisticated party.
18Moreover, it appears that the respondent has used boilerplate wording and therefore, these reasons constitute as no reasons at all in accordance with Hedley. I find that the letter dated July 3, 2018 is not in compliance with s. 38(8) of the Schedule. The respondent did not cure this in the subsequent denial letter. In my view, the notice of denial did not meet the basic requirements outlined in Smith and therefore the two-year limitation period was not triggered.
The denial letter dated August 9, 2018 for chiropractic services in the amount of $1,650.00 is defective.
19I have reviewed the denial letter dated August 9, 2018 and find that it does not comply with the requirements under section 38(8). The medical reason is, “Based on the medical information on file, injuries as a result of the accident fall within the Minor Injury Guideline. Treatment has previously been approved to the Minor injury guideline limits of $3500.” The denial letter also states that there is insufficient compelling evidence which indicates that the applicant has a pre-existing medical condition that would prevent him from reaching maximum medical recovery.
20In my view, the reasons provided are vague. There are no references made to his medical conditions. It is unclear what his medical conditions or impairments are. Nor is there any explanation regarding how having a pre-existing medical condition may result in the individual being removed from the MIG. This explanation is not geared towards an unsophisticated party.
21Moreover, it appears that the respondent has used boilerplate wording and therefore, these reasons constitute as no reasons at all in accordance with Hedley. I find that the letter dated August 9, 2018 is not in compliance with s. 38(8) of the Schedule. The respondent did not cure this in the subsequent denial letter. In my view, the notice of denial did not meet the basic requirements outlined in Smith and therefore the two-year limitation period was not triggered.
The denial letter dated April 22, 2019 for a chronic pain assessment in the amount $1,989.85 is defective.
22I have reviewed the denial letter dated April 22, 2019 and find that it does not comply with the requirements under section 38(8). The medical reason provided is, “Treatment plan not deemed reasonable and necessary as a result of the accident. Based on the medical information on file, injuries fall within the Minor Injury Guideline. Treatment has previously been approved to the Minor Injury Guideline limits.” The denial letter also states that there is insufficient compelling evidence which indicates that the applicant has a pre-existing medical condition that would prevent him from reaching maximum medical recovery.
23In my view, the reasons provided are vague. There are no references made to his medical conditions. It is unclear what his medical conditions or impairments are. The denial letter does not explain why the treatment plan is not reasonable and necessary. Nor is there any explanation regarding how having a pre-existing injury may result in the individual being removed from the MIG. This explanation is not geared towards an unsophisticated party.
24Moreover, it appears that the respondent has used boilerplate wording and therefore, these reasons constitute as no reasons at all in accordance with Hedley. I find that the letter dated April 22, 2019 is not in compliance with s. 38(8) of the Schedule. The respondent did not cure this in the subsequent denial letter. In my view, the notice of denial did not meet the basic requirements outlined in Smith and therefore the two-year limitation period was not triggered.
25As I have determined that the limitation period was not triggered by an invalid denial, the applicant may proceed with their application before the Tribunal.
ORDER
26It is ordered that the applicant may proceed with his application before the Tribunal.
Released: December 18, 2023
Tavlin Kaur
Adjudicator