Citation: Robinson v. Aviva Insurance Company of Canada, 2023 ONLAT 22-006390/AABS - PI

Licence Appeal Tribunal File Number: 22-006390/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:

Nadine Robinson

Applicant

and

Aviva Insurance Company of Canada

Respondent

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Nadine Robinson, Applicant

Anna Korolkova, Paralegal

Moninder Khattra, Counsel

For the Respondent:

Samuel Davies, Counsel

Heard by way of written submissions

OVERVIEW

1Nadine Robinson, the applicant, was involved in an automobile accident on January 15, 2019 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, Aviva Insurance Company of Canada (“Aviva”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2The preliminary issue to be decided is whether the applicant is barred from proceeding to a hearing for the substantive issues listed below, pursuant to s. 56 of the Schedule?

RESULT

3I find that the applicant is not statute-barred from proceeding before the Tribunal

ANALYSIS

4The respondent submits that the application was filed beyond the expiry of the two-year limitation period, including the extension provided due to the pandemic by O. Reg. 73/20. The respondent further submits that there was a clear and unequivocal denial of the treatment plans which triggered the limitation period, regardless of a later denial where it relied on an Insurer’s Examination report. The respondent maintains that the denials were in accordance with the principles set out in Smith v. Co-operators General Insurance Company, 2002 SCC 30 (“Smith”). As such, the application should be dismissed.

5The applicant submits that the application was brought within the limitation period. The initial denials by the respondent were not in accordance with the principles outlined in Smith and nor were they detailed in terms of the medical reasoning. The applicant relies on the analysis provided in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) (“T.F.”) with respect to the meaning of “medical and any other reasons” in support of her case.

The treatment plans

6Section 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.

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. [my emphasis added].

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.

9Accordingly, Smith requires a denial notice to be as specific and accessible as possible to ensure that there is no ambiguity in what they mean when read by an unsophisticated person. This means the notice at the very least should explain what the insured person’s medical conditions are and why those conditions do not justify removal from the MIG. An individual might not understand why their medical conditions are considered to be minor if they are not provided with more context. 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.

10Further, the notice must provide a valid medical and any other reason for the denial. I take notice 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.

11The 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.

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 to decide whether or not to challenge the insurer’s determination.

13If an insurer’s notice of denial to an insured does not satisfy these requirements, the denial may be determined to be invalid and fail to trigger the two-year limitation period.

14In the recent decision of the Court of Appeal for Ontario, Varriano v. Allstate Ins. Company of Canada, 2023 ONCA 78, a medical reason for a denial does not have to be provided if there was no medical basis for the denial at issue. However, where there is a medical basis for a denial, then in my view, medical reasons should be provided.

The treatment plan dated March 26, 2019 in the amount of $4,668.86 proposed by Polyclinic Rehab was filed within the limitation period

15The explanation of benefits (“EOB”) dated June 6, 2019 states that, “further to your claim for Accident Benefits, we have determined that this treatment plan indicates that you are outside of the minor injury guideline. Your treatment plan has been denied. If you believe your injuries to be non-minor, we require more information.” There is a list of documents that the respondent provided. The EOB then states that, “as per section 25(2) of the Statutory Accident Benefits Schedule, we believe your injuries to be minor in nature. If you believe your injuries to be non-minor, you must provide compelling medical evidence.” The EOB notes that the treatment plan has been denied and informs the applicant about her right to dispute the decision and that she must file her application with the Tribunal within two years after the denial.

16In my view, the EOB dated June 6, 2019 does not comply with the requirements under s. 38(8) as it failed to provide adequate medical reasons to deny the disputed OCF-18. The notice fails to provide information about the applicant’s medical condition, the details of the treatment plan or clear and sufficient reasons for its denial that would allow the applicant to make an informed decision as to whether or not to dispute the respondent’s decision. The reasons in the EOB are vague and poorly worded. In my view, the respondent has used boilerplate wording and therefore, these reasons constitute as no reasons at all in accordance with Hedley. I find that the EOB dated June 6, 2019 is not in compliance with s. 38(8) of the Schedule.

17On October 1, 2020, the respondent sent an EOB which addressed the treatment plan in dispute. In my view, the respondent cured the notice because it included detailed reasons for the denial. Excerpts from Dr. Howard Platnick’s IE report are included in the EOB. There are references to her soft-tissue injuries and Dr. Platnick’s findings that there was no accident-related injury or impairment. I find that it complies with T.F. as it provides medical and other reasons for the denial. The correspondence complies with Smith, as it makes direct reference to the two-year limitation period and in straightforward, clear language informs the applicant of the dispute resolution process. This includes steps required to file an application and the address of the Tribunal for service. Therefore, I find that the limitation period started from October 1, 2020.

18Although Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111 (CanLll)(“Sietzema”) stands for the proposition that a legally incorrect denial still triggers the limitation period, I find it to be distinguishable because the reasons are not incorrect; boilerplate statements constitute as no reasons at all. There is a difference between the two. In my view, it would be contrary to the spirit of the consumer protection legislation to trigger a limitation period when no reasons are provided. I note that Sietzema was also decided based on an earlier version of the Schedule that did not require medical and all of the other reasons to be included in the notice.

19Moreover, 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. If the respondent’s notice to the applicant does not meet these basic requirements, the denial is invalid and the two-year limitation period in the Schedule is not triggered.

20The application was filed on May 27, 2022 and is therefore within the limitation period.

The treatment plans in the amount of $600.00 and $3,299.24 proposed by Polyclinic Rehab were filed within the limitation period

21The EOB dated February 22, 2019 states that, “further to your claim for Accident Benefits, we have determined that this treatment plan indicates that you are outside of the minor injury guideline. Your treatment plan has been denied. If you believe your injuries to be non-minor, we require more information.” There is a list of documents that the respondent provided. The EOB then states that, “as per section 25(2) of the Statutory Accident Benefits Schedule, we believe your injuries to be minor in nature. If you believe your injuries to be non-minor, you must provide compelling medical evidence.” The EOB notes that the treatment plan has been denied and informs the applicant about her right to dispute the decision and that she must file her application with the Tribunal within two years after the denial.

22In my view, the EOB dated February 22, 2019 does not comply with the requirements under s. 38(8) as it failed to provide adequate medical reasons to deny the disputed OCF-18. The notice fails to provide information about the applicant’s medical conditions, the details of the treatment plan or clear and sufficient reasons for its denial that would allow the applicant to make an informed decision as to whether or not to dispute the respondent’s decision. The reasons are vague and poorly worded. In my view, the respondent has used boilerplate wording and therefore, these reasons constitute as no reasons at all. I have found that the respondent’s notice dated February 22, 2019 is not in compliance with s. 38(8) of the Schedule.

23On October 1, 2020, the respondent sent an EOB which addressed the treatment plan in dispute. In my view, the respondent cured the notice because it included detailed reasons for the denial. Excerpts from Dr. Howard Platnick’s IE report are included in the EOB. There are references to her soft-tissue injuries and Dr. Platnick’s findings that there was no accident-related injury or impairment. I find that it complies with T.F. as it provides medical and other reasons for the denial. The correspondence complies with Smith, as it makes direct reference to the two-year limitation period and in straightforward, clear language informs the applicant of the dispute resolution process. This includes steps required to file an application and the address of the Tribunal for service.

24For the reasons set out earlier in this decision in relation to Sietzema, Smith and Hedley, I find that the limitation period started from October 1, 2020. The application was filed on May 27, 2022 and is therefore within the limitation period.

The treatment plan in the amount of $900.00 for transportation proposed by Polyclinic Rehab was filed within the limitation period

25The EOB dated June 18, 2019 states that, “as per section 25(2) of the Statutory Accident Benefits Schedule, we believe your injuries to be minor in nature. If you believe your injuries to be non-minor, you must provide compelling medical evidence.” The EOB states that the treatment plan has been denied and informs the applicant about her right to dispute the decision and that she must file her application with the Tribunal within two years after the denial.

26In my view, the EOB dated June 18, 2019 does not comply with the requirements under s. 38(8) as it failed to provide adequate medical reasons to deny the disputed OCF-18. The notice fails to provide information about the applicant’s medical conditions, the details of the treatment plan or clear and sufficient reasons for its denial that would allow the applicant to make an informed decision as to whether or not to dispute the respondent’s decision. In my view, the respondent has used boilerplate wording and therefore, these reasons constitute as no reasons at all. I have found that the respondent’s notice dated June 18, 2019 is not in compliance with s. 38(8) of the Schedule.

27On October 1, 2020, the respondent sent an EOB which addressed the treatment plan in dispute. In my view, the respondent cured the notice because it included detailed reasons for the denial. Excerpts from Dr. Howard Platnick’s IE report are included in the EOB. There are references to her soft-tissue injuries and Dr. Platnick’s findings that there was no accident-related injury or impairment. I find that it complies with T.F. as it provides medical and other reasons for the denial. The correspondence complies with Smith, as it makes direct reference to the two-year limitation period and in straightforward, clear language informs the applicant of the dispute resolution process. This includes steps required to file an application and the address of the Tribunal for service.

28For the reasons set out earlier in this decision in relation to Sietzema, Smith and Hedley, I find that the limitation period started from October 1, 2020. The application was filed on May 27, 2022 and is therefore within the limitation period.

29As I have determined that the application was filed within the limitation period, I find it unnecessary to conduct an analysis in relation to section 7 of the Licence Appeal Tribunal Act 1999, SO 1999, c 12, Sch G.

ORDER

30It is ordered that the applicant may proceed with her application before the Tribunal.

Released: May 2, 2023