Gordon v. Aviva General Insurance, 2023 CanLII 40078

Citation: Gordon v. Aviva General Insurance, 2023 ONLAT 21-004283/AABS

Licence Appeal Tribunal File Number: 21-004283/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:

Chleo Gordon

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Glen Cox, Paralegal

For the Respondent: Justine Young, Counsel

HEARD: By way of written submissions

OVERVIEW

1Chleo Gordon (“C.G.”), the applicant, was involved in an automobile accident on December 22, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2At the case conference, Aviva raised a preliminary issue regarding C.G.’s claim for non-earner benefits (“NEBs”). It submits that pursuant to s. 56 of the Schedule, C.G. is statute barred from proceeding with her claim for NEBs because she failed to apply within the limitation period of two years after Aviva’s refusal to pay NEBs.

PRELIMINARY ISSUE

3The preliminary issue to be determined is as follows:

i. Is the application statute barred from proceeding pursuant to s. 56 of the Schedule because C.G. failed to dispute the denial of the benefit within the two-year time limitation?

SUBSTANTIVE ISSUE

4The substantive issue in dispute is:

i. Is C.G. entitled to receive a NEB in the amount of $185.00 per week for the period of January 22, 2017 to January 22, 2019, submitted January 11, 2017, and denied April 26, 2017?

RESULT

5C.G.’s claim for a NEB is statute barred due to her failure to dispute the benefit within the prescribed two-year limitation period, under s. 56.

ANALYSIS

Is C.G. statute-barred from pursuing her NEB claim?

6Section 12(1) of the Schedule provides that an insurer shall pay for a NEB to an insured person who sustains an impairment as a result of an accident and suffers a complete inability to carry on a normal life as a result of that accident within 104 weeks.

7Section 56 of the Schedule sets out that an application under subsection 280(2) of the Insurance Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.

8For the reasons that follow, I find that C.G. did not submit her claim for NEBs within the two-year limitation period after Aviva denied payment of the specified benefit. Accordingly, C.G. is statute barred from pursuing her claim for NEBs in accordance with s. 56 of the Schedule.

9Aviva submits that C.G. failed to establish she was eligible for the NEB as a result of and within 104 weeks after the accident as she failed to complete the mandatory requirement of submitting a completed application indicating her eligibility for the NEB within the 104-week period.

10In order to understand what lead to Aviva raising a preliminary issue, the following is a timeline of events:

i. January 11, 2017 – C.G. files her application for accident benefits, including the Disability Certificate (OCF-3);

ii. February 1, 2017 – Aviva provides an Explanation of Benefits (EOB) informing C.G. that she may be entitled to an NEB, and that it required her attendance at an Examination Under Oath (“EUO”) to determine her eligibility for the NEB;

iii. April 13, 2017 – C.G. attended an EUO with her representative;

iv. April 16, 2017 – Aviva advised C.G. that as per the EUO, where she indicated she was not suffering a complete inability to carry on a normal life, she did not qualify for an NEB. The EOB also advised of the right to dispute the determination, the two-year time limit and the required steps to file an application to dispute the determination; and

v. October 4, 2021 – C.G. first introduces her intention to dispute the NEB denial at the case conference.

11C.G. submits that Aviva’s reliance on her statement at the EUO that she does not suffer a complete inability to carry on a normal life does not constitute a proper denial. Her position is that Aviva’s denial failed to provide the medical and other reasons as required under s. 38 of the Schedule.

12I disagree.

13C.G. has failed to consider her obligations as it pertains to the requirements under the Schedule. Section 56 provides that an application in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed. In C.G.’s case, she did not raise any intention to dispute Aviva’s denial until the case conference on October 4, 2021.

14It is not disputed that C.G. did not notify Aviva within the timeline set out in s. 56 of the Schedule. The denial occurred on April 26, 2017 and she notified Aviva on October 4, 2021. This is a delay of over four years. I find that C.G. has provided no reasonable explanation for the delay.

Section 7 of the Licence Appeals Tribunal Act (“LAT Act”)

15C.G. seeks relief from the s. 56 limitation provision for her dispute resolution over her NEB entitlement under s. 7 of the LAT Act, which states:

Extension of time

7 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.

16For a late application to the Tribunal, I must consider the Manual v. Registrar analysis, that being: 1. Intention to appeal within the appeal period, 2. Length of delay, 3. Prejudice to Aviva, and 4. Merits. I find that all of these factors militate against granting an extension in this case. There is no evidence of C.G.’s intention to appeal. There is an extremely lengthy delay causing prejudice to Aviva because it is now exposed to a liability where it cannot properly assess the extent of C.G.’s immediate post-accident impairments. Further, the claim is completely without merit as C.G. is not entitled to the benefit after 104 weeks. Her claim was made well after 104 weeks.

17I find that the over four-year delay in disputing the benefit is unreasonable and far beyond the prescribed two-year limitation period. C.G. cannot rely on the s. 7 extension provision. Accordingly, C.G. is statute barred under s. 56 of the Schedule from pursuing her claim for a NEB.

ORDER

18C.G.’s claim for a NEB is dismissed as it is statute barred due to her failure to dispute the benefit within the prescribed two-year limitation period, under s. 56.