PRELIMINARY ISSUE DECISION [ORDER]
Licence Appeal Tribunal File Number: 21-004454/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:
Senqi Zhang
Applicant
and
Aviva Insurance Company of Canada
Respondent
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Senqi Zhang, Applicant
Maka Metreveli, Paralegal
For the Respondent:
Stanford Cummings, Counsel
Peter Mandayam, Senior Litigation Specialist
Written Hearing:
Heard by way of written submissions
REASONS FOR DECISION [AND ORDER]
BACKGROUND
1This proceeding concerns a dispute between an insured person (the applicant) and an insurer (the respondent) about automobile insurance benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) arising out of a motor vehicle accident on December 2, 2017.
2The respondent raised two preliminary issues at the case conference and as a result, this written preliminary issue hearing was scheduled.
ISSUES IN DISPUTE
3Preliminary Issues: The preliminary issues to be decided are:
Is the applicant barred from proceeding with his claim for accident benefits as he failed to commence his application within two years after the respondent’s refusal to pay the amount claimed?
Is the applicant barred from a hearing for the following benefit(s): psychological and physical treatment because the applicant failed to attend an insurer’s examination?
RESULT
4I find that the applicant is statute-barred from proceeding before the Tribunal.
ANALYSIS
5Section 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.
6On or about April 9, 2021, the applicant submitted his application to the Tribunal. The application was in relation to treatment plans for a psychological assessment and physical treatment plans. The respondent asserts that the applicant was submitted the application beyond the two-year limitation period.
7The Respondent relies on S.S. v Certas Home and Auto Insurance, 2016 CanLII 153125 (ON LAT) which holds that the two-year limitation period is fixed under the Schedule and that the LAT does not have the discretion to extend the limitation period in section 56 of the Schedule. It holds that there was a clear legislative intent that section 56 of the Schedule imposes a hard 2-year limitation period. It is the respondent’s position that the applicant is barred from applying to the Tribunal pursuant to section 55(1)(2) of the Schedule.
8The applicant did not provide any submissions and evidence in support of his case.
9The Tribunal can take notice of the contents of its adjudicative file. This includes, among other things, an application by which a proceeding before the Tribunal is commenced. My review of the Tribunal’s adjudicative file leads me to conclude that the applicant filed his application for dispute resolution on or about April 12, 2021.
10I find that the respondent’s calculation of the limitation period in the submissions does not account for O.Reg 73/20. On March 20, 2020, O. Reg. 73/20 was enacted. 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.
11This 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. The limitation period for this application started running before March 16, 2020, did not expire before March 16, 2020, and can therefore be extended by 183 days.
12In this particular case, the treatment plans were denied on May 28, 2018. In normal circumstances, the limitation period would have expired on May 28, 2020. With the extension of the limitation period, the applicant had until November 28, 2020 to appeal the denial of the treatment plans associated with this accident to the Tribunal. The applicant did not appeal these denials within the two-year timeframe. Based on the evidence before me, I find that the applicant’s application was filed beyond the presumptive two-year limitation period to appeal the denials.
Section 7 of the Licence Appeal Tribunal Act (‘LAT Act’)
13Section 7 of the LAT Act affords the Tribunal statutory discretion to extend the time for commencing a proceeding in certain circumstances if it is satisfied that there are reasonable grounds for applying for the extension and for granting relief. There are four factors that the Tribunal weighs in determining whether the justice of the case requires that an extension be granted:
i) the existence of a bona fide intention to appeal within the appeal period;
ii) the length of the delay;
iii) prejudice to the other party; and
iv) the merits of the appeal.
14These 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.
15The applicant did not request an extension of the limitation period and as a result has not met his onus to establish reasonable grounds for an extension under s. 7 of the LAT Act. I decline to exercise my discretion to extend the deadline for the applicant’s application.
16As an aside about jurisdiction, I should mention Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997 (Div. Ct.), where the Divisional Court unanimously confirmed this Tribunal’s jurisdiction under s. 7 of the LAT Act to grant an extension of a limitation period prescribed by s. 56 of the Schedule. The Tribunal case on which the respondent relies, S.S. v. Certas, was one of three cases heard together by the Divisional Court in the Fratarcangeli appeal. As such, the Tribunal’s decision in S.S. v. Certas was reversed and should not be relied upon regarding this jurisdictional question.
Non-attendance at the insurer examinations
17The respondent submits that the application should be dismissed because the applicant failed to attend the IEs that were scheduled to assess the treatment plans in dispute.
18On August 17, 2018, a notice of examination was sent to the applicant for an IE on September 5, 2018 with Dr. Cohen, psychologist, in relation to the treatment plan for a psychological assessment. The applicant did not attend. On February 15, 2019, the respondent wrote to the applicant and informed him that he failed to attend four times for the IEs. The IE was rescheduled for February 3, 2021 with Dr. Mandel. The applicant did not attend.
19With respect to the treatment plan for physical therapy in the amount of $2,921.29, the respondent sent a notice of examination on September 19, 2018 regarding an IE with Dr. Belfon, general practitioner. The applicant did not attend. The IE was rescheduled for January 18, 2021 with Dr. Nesterenko, general practitioner. The applicant did not attend.
20The respondent wrote to the applicant on February 19, 2021 advising him that he had failed to attend the section 44 assessments that had been scheduled to assess his claims. He was advised that he was in non-compliance with section 55(1) of the Schedule and that he was not eligible for the proposed benefit because of his non-compliance with section 44(9) of the Schedule.
21The applicant did not provide any submissions or evidence to refute the respondent’s position.
22Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.
23The requirements for a notice of examination set out in s. 44(5) of the Schedule are:
If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,
(a) the medical and any other reasons for the examination;
(b) whether the attendance of the insured person is required at the examination;
(c) the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and
(d) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.
24Section 44(9)2. sets out the rules for an in-person IE:
The following rules apply in respect of the examination: …
- If the attendance of the insured person is required,
i. the insurer shall make reasonable efforts to schedule the examination for a day, time and location that are convenient for the insured person,
ii. the insured person and the insurer shall, not later than five business days before the day scheduled for the examination, provide to the person or persons conducting the examination such information and documents as are relevant or necessary for the review of the insured person’s medical condition, and
iii. the insured person shall attend the examination and submit to all reasonable physical, psychological, mental and functional examinations requested by the person or persons conducting the examination.
25Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied.
26Taking all of the above provisions, the Schedule is clear that the applicant has a duty to participate in each in-person IE that is reasonably necessary and for which there is a Schedule-compliant notice. If the applicant fails to comply, there must be a reasonable explanation provided for the non-compliance. To be clear, the respondent must first prove that a Notice of Examination complies with s. 44(5) of the Schedule in order for it to rely on it as a basis to seek a statute bar under s. 55.
27I have reviewed the notices of examination and find that they were compliant with section 44(5) of the Schedule as they were clear and sufficient enough to allow an unsophisticated person to make an informed decision to attend the insurer examination or dispute it. As a result, I agree with the respondent that the circumstances in s. 55(1)2. of the Schedule exist. I now turn to whether I should grant relief to the applicant under ss. 55(2) and (3) of the Schedule.
Does s. 55(2) apply to the applicant?
28Section 55(2) of the Schedule permits the Tribunal to allow an insured to apply for dispute resolution despite being non-compliant with s. 44. Section 55(3) of the Schedule provides that the Tribunal may impose terms and conditions on any permission granted.
29I decline to exercise my discretion under these sections because the applicant has not put forward a reasonable explanation for his non-attendance at the IEs. I find this to be unreasonable. Just as much as the insurer has a duty of good faith to adjust the claim and provide the applicant with medical and any other reasons why the IE is required, I find that the applicant has a duty to cooperate with the respondent where the IE notice is compliant. Refusing to attend the rescheduled IEs frustrated the respondent’s ability to assess the applicant.
ORDER
30For the reasons above, I find that the applicant is statute-barred from proceeding before the Tribunal with his application. The application is dismissed.
Released: January 10, 2023
Tavlin Kaur
Adjudicator