Sylvest v. Certas Home and Auto Insurance Co, 2023 CanLII 40094

Citation: Sylvest v. Certas Home and Auto Insurance Co, 2023 ONLAT 22-002619/AABS-PI

Licence Appeal Tribunal File Number: 22-002619/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:

Kaylah Sylvest

Applicant

and

Certas Home and Auto Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Kaylah Sylvest, Applicant

Meghan Hull Jacquin, Counsel

Sandi Smith, Counsel

For the Respondent:

Michael Chadwick, Counsel

Heard by way of written submissions

OVERVIEW

1Kaylah Sylvest, the applicant, was involved in an automobile accident on March 10, 2007, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (“Schedule”). The applicant received housekeeping and attendant care assistance as her injuries were determined to be catastrophic. The respondent, Certas Home and Auto Insurance Company (“Certas”), assessed her in September 2018 and determined that she no longer required these benefits. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The respondent raised a preliminary issue at the case conference and as a result, this written preliminary issue hearing was scheduled.

PRELIMINARY ISSUE

3The preliminary issue to be decided is whether the applicant is statute-barred from proceeding to a hearing on attendant care and housekeeping benefits because the applicant failed to apply to the Tribunal within the two-year limitation period?

RESULT

4I find that the applicant is not statute-barred from proceeding before the Tribunal.

STRIKING PARTS OF THE RESPONDENT’S REPLY SUBMISSIONS

5On March 20, 2023, the applicant sent an email to the Tribunal requesting that I order that the reply submissions of the respondent from paragraph 7 and onwards be removed because it does not constitute a proper reply.

6On March 21, 2023, the respondent sent an email to the Tribunal addressing the applicant’s email. It is the respondent’s position that the reply is responsive to the case law that was raised by the applicant for the first time in her submissions. It submits that it was permitted the right to reply.

7In my view, the respondent’s reply submissions address the arguments and case law that were raised by the applicant. It is a proper reply. Therefore, I decline to grant the relief that the applicant is seeking.

ANALYSIS

Background

8The applicant submitted an Occupational Therapy Report and Form 1 dated March 6, 2018 in the amount of $2,072.79 per month from Kimberley Merkur, occupational therapist, in support of her claim for attendant care benefits.

9The respondent sent an Explanation of Benefits (“EOB”) dated April 17, 2018 to the applicant, which is in evidence. The respondent’s EOB letter stated that it did not agree with the amount of attendant care sought and the letter further stated that notices of assessments would be sent separately to the applicant to assess her attendant care needs under section 44. In addition, the letter indicated that the applicant was notified that the amount of attendant care expenses payable would be $2,072.79 while the assessments were being arranged.

10The respondent conducted the section 44 insurer examinations (“IEs”). On September 29, 2018, the respondent sent another EOB to the applicant. By way of an EOB dated September 29, 2018, the applicant was advised that she did not qualify for attendant care benefits and that the benefit would be terminated on October 31, 2018.

11On behalf of the applicant, Paula Warkentin, case manager, sent a letter dated January 26, 2019 to the respondent and asked that it reconsider the housekeeping and home maintenance and attendant care benefits decision. By way of an EOB dated April 16, 2019, the respondent advised the applicant that the decision would be maintained as outlined in the previous correspondence dated September 29, 2018.

12On July 13, 2021, the applicant submitted a second Form 1 for attendant care benefits in the amount of $2,565.10 per month and an Occupational Therapy Attendant Care Re-Assessment and Functional Assessment Report completed by Laya Polowin. On July 23, 2021, the respondent informed the applicant that that the amount would not be approved and referenced the previous assessments of September 26, 2018 where it was determined that ongoing attendant care benefits were not required. On September 23, 2021, the respondent sent the applicant a Benefit Determination letter which denied the applicant entitlement to attendant care benefits.

13The applicant then applied to the Tribunal on March 3, 2022. It is the respondent’s position that the applicant is statute-barred from proceeding with all issues in dispute because she failed to submit the application to the Tribunal within the appropriate two-year limitation period under section 56 of the Schedule. The respondent submits that a valid denial of the applicant’s claim for both attendant care benefits along with housekeeping and home maintenance benefits was provided to her on September 29, 2018. The two-year limitation period set out in section 56 of the Schedule was extended by 182 days pursuant to O. Reg. 73/20 of the Emergency Management and Civil Protection Act. The respondent argues that the limitation period therefore expired on March 30, 2021. The applicant’s application was not submitted until March 3, 2022, just over 11 months after the expiry of the limitation period. As such, the respondent submits that the application is statute-barred as a result and that there are no grounds to extend the limitation period pursuant to section 7 of the Licence Appeal Tribunal Act, 1999 (“LAT Act”).

14The applicant submits that the denial dated September 29, 2018 is not a clear and unequivocal denial. Furthermore, the respondent’s request to conduct the medical assessments rendered the September 2018 denial unclear and equivocal. The applicant asserts that the effect of the respondent’s denial in September 2021 after the medical re-assessments is the new date from which the limitation period began to run. The applicant submits that if the respondent intended to rely on its earlier denial and conduct further assessments, it was required to advise the applicant of this position. Accordingly, the applicant argues that the respondent’s failure to advise the applicant of this position and asking her to attend assessments that address entitlement rendered its September 29, 2018 denial invalid.

The EOB dated September 29, 2018 is valid

15Section 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.

16In order for the provision under section 56 to be triggered, the notice of denial must be proper in accordance with the principles set out in Smith v. Co-operators General Insurance Co, 2002 SCC 30 (“Smith”). It is well-established that a notice of refusal to pay benefits must contain clear and straightforward language, must be directed towards an unsophisticated person, must clearly set out the dispute resolution process and the time limit to dispute the denial.

17Further, the notice must provide a valid medical and any other reason for the denial. The Divisional Court in Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 considered the Tribunal’s reconsideration decision of B.H. v. Aviva Insurance Company, 2018 CanLII 84051 (ON LAT), which in turn applied 16-003316/AABS 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.

18The 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.

19If 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.

20In my view, the EOB dated September 29, 2018 is quite detailed. Reasons for the denial are provided. References have been made to medical evidence which the respondent relied on to come to this determination. The benefits in dispute have been properly identified. In my view, the reasons were clear and sufficient to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. As such, I find that this was a clear and unequivocal denial.

The application was not filed within the limitation period

21On 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, 2021 ONSC 4528, where the Ontario Superior Court of Justice found that O. Reg. 73/20 extended all running limitation periods by 183 days.

22The limitation period for this application started running before March 16, 2020 and can therefore be extended by 183 days. In the facts before me, the applicant had until March 31, 2021 to file the application. The application was filed with the Tribunal on March 3, 2022. Therefore, I find that the applicant did not file her application within the limitation period.

The denial is clear and unequivocal

23The applicant submits that when the respondent conducted its assessments in 2021, there was no dispute instituted by or on behalf of the applicant for benefits. According to the applicant, “section 42 of the Schedule allows assessments by a respondent to determine if the applicant is or continues to be entitled to benefits. Section 42.1 only contemplates assessments in relation to determining an applicant’s substantive entitlement to a benefit. Section 42.1 only allows assessments after the denial of benefits where the assessment is taking place in the context of a commenced dispute with the respondent.”

24She states that:

In this matter, when the insurer conducted its assessments in 2021, there was no dispute instituted by or on behalf of the Claimant for Benefits. The Insurer’s Assessments were, therefore, necessarily to address her entitlement to the Benefit as claimed. As the Schedule only allows insurers to conduct s. 42 assessments to determine entitlement to benefits, the applicant submits that the insurer’s request to conduct the medical assessments rendered the September 2018 denial unclear and unequivocal.

25The respondent submits that it has a continuing duty to evaluate entitlement to benefits and this does not reset the limitation period. Moreover, it is the respondent’s position that the applicant is relying on s.42.1(10), which is no longer in force and effect. According to the respondent, the current Schedule does not contain this provision. The respondent states that “the transition rules at section 2 are clear insofar as Part VIII of the current regulation applies to accidents occurring on or after November 1, 1996, and before September 1, 2010.

26I agree with the respondent. The current Schedule applies to this accident. The transitional provisions in section 68 continue to make benefits available under the older version of the Schedule should the applicant meet the required test. However, the procedure for claiming benefits is governed by the new Schedule in Part VIII as per the transitional rules in section 2 of the Schedule. Therefore, insurer examinations are addressed by section 44 of the 2010 Schedule, not section 42.1 of 1996 Schedule.

27The applicant is trying to argue the reassessment of her claim made the previous denial unclear. I do not agree. The respondent has an ongoing duty to adjust the file and was within its right to assess the applicant’s attendant care needs as that is in dispute.

28The applicant relies on Garminder v. Co-Operators, 2013 ONFSCDRS 135(finding that the insurer’s correspondence advising the claimant that it would review his entitlement to benefits rendered the earlier denial invalid), J.Q. v. Co-Operators, 2021 CanLII 97041 (ON LAT)(finding that the letter does not clearly reiterate or refer to the denial or warn the applicant that his appeal ran from that date) and A.A. v. Unifund, 2019 CanLII 51323 (ON LAT)(finding that there was no reference to any earlier denial).

29I am not persuaded by the case law submitted by the applicant. It is not binding, and I find it to be distinguishable because the respondent did not state in any of the correspondences that it was reconsidering the applicant’s entitlement to benefits. In fact, the EOB dated April 16, 2019 references the September 26, 2018 denial and states that the denial is being maintained. The letter dated July 23, 2021 refers to the September 26, 2018 denial.

30In my view, there is nothing in the correspondence that would lead a reasonable person to believe that the respondent was reconsidering its position and no longer relying on the September 26, 2018 denial. I am not persuaded by the applicant’s position that the EOB dated April 16, 2019 suggests that the respondent would continue to consider a future need for attendant care and housekeeping.

31I am bound by the Court of Appeal’s decisions in Smith and Blake v. Dominion of Canada General Insurance Company, 2015 ONCA 165. As noted in Smith, once a clear and unequivocal denial letter is sent, the limitation period begins to run. The submission of a new application for benefits following a clear refusal by the respondent to pay benefits does not restart the limitation clock. Where a respondent has denied statutory accident benefits, the applicant’s remedy is to seek recourse for the termination of benefits within the limitation period, not to submit further applications for benefits. There is no provision in the Insurance Act or Schedule which allows an applicant person to reapply for further benefits after the benefits have been terminated by the respondent. The only remedy for the applicant is to appeal the termination of benefits within the two-year period.

32As such, the September 26, 2018 denial is a valid denial. I find that the application was not filed within the limitation period. The next stage of my analysis will consider whether the Tribunal should invoke its discretion under section 7 of the LAT Act.

Section 7 of the LAT Act

33Section 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.

34These 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 but rather may push or pull differently when analysing whether to extend the limitation period. These factors are a guide to assist in determining whether the justice of the case warrants granting an extension. The onus is on the applicant to satisfy me that the justice of the case favours an extension of the time to file the application.

Bona fide intention

35The applicant submits that there is evidence that she attempted to dispute the respondent’s refusal to pay benefits although it was not through the Tribunal. The first attempt was made by Paula Warkentin, occupational therapist, on January 26, 2019 with a request for reinstatement. On July 13, 2021, she also submitted the Occupational Therapy Assessment of Laya Polowin to support her ongoing entitlement to benefits.

36The respondent submits that there is no evidence that the applicant had a bona fide or good faith intention to appeal within the limitation period. There is no documentation establishing a bona fide intention to appeal during the limitation period.

37I am not persuaded by the applicant’s position. The denial letter dated September 29, 2018 provided the applicant with information regarding the process to dispute the decision at the Tribunal. She did not provide any evidence that supports the fact that she intended to dispute this decision at the Tribunal. In my view, submitting reports from the occupational therapist is not akin to disputing the decision at the Tribunal.

Length of delay

38The applicant submits that:

The length of the delay should be considered in the context of the file. The accident occurred in 2007 and the respondent accepted that she was catastrophically impaired and paid her attendant care benefits for 11 years prior to the denial letter of September 29, 2018. The applicant is 37 years old and, according to the mortality tables, has close to 50 more years to live with her injuries and impairments.

39Moreover, she argues that when the length of the delay is considered in relation to the applicant’s age and ongoing age of the file, 11 months is not a significant amount of time. Furthermore, she submits that the delay should not be fatal because the respondent was able to address the applicant’s medical condition in the summer of 2021. There would not be any prejudice in the 11 months from April 2021 to March 2022 given that the IEs were conducted in this timeframe.

40However, it is the submission of the respondent that a delay of over 11 months is extraordinary and given this length of time, an extension would result in uncertainty to insurers in general and there is an incurable prejudice to the respondent. The respondent has been denied the opportunity to obtain evidence as to the applicant’s ongoing impairments with respect to the housekeeping and home maintenance benefit that is in issue.

41Based on my review of the evidence, I find that there is a lengthy delay with no explanation. However, I find that the length of the delay is partly mitigated because the respondent conducted assessments throughout the period of the delay.

Prejudice to the other party

42The applicant submits that the respondent did not submit any evidence or submissions in relation to the prejudice that it faces. It is the applicant’s position that there is obvious and significant prejudice to her if she cannot proceed to a hearing to determine entitlement to benefits that flow from her catastrophic designation.

43The respondent did briefly touch on the issue of prejudice in the submissions in relation to the issue of the delay. The prejudice that the respondent faces is that it has been unable to obtain evidence regarding the applicant’s ongoing impairments with respect to the issues in dispute. Based on my review of the file, the respondent was actively involved in adjusting the file. Therefore, I find that the respondent was not prejudiced because IEs were conducted during this timeframe.

Merits of the appeal

44The applicant submits that she has been deemed to have a catastrophic impairment and that there is evidence available that could support her ongoing entitlement to the benefits in dispute. She is not required to prove entitlement at the preliminary stage.

45The respondent submits that there is a substantial body of evidence that suggests the applicant does not meet the test for entitlement. The respondent is relying on the reports of the In-Home Occupational Therapy Assessment of Susan Szainwald, the Psychiatric Assessment prepared by Dr. Velan Sivasubramanian dated September 21, 2021 and the section 44 IE reports of Susan Szainwald, OT, Dr. Jillian Rowe, neurologist, Dr. Ikejiani, orthopaedic surgeon, Dr. Palak, physiatrist and Dennis Polygenis, Physical Therapist, all dated September 28, 2018.

46The onus is on the applicant to establish that the justice of the case favours an extension of the time to appeal. Her submissions do not provide reasons that demonstrate that the appeal is with merit. However, I do note the applicant’s impairments have been deemed to be catastrophic and there is a Form 1 that supports the need for attendant care assistance. Based on the evidence before me, I find that the appeal does have some merit.

Weighing the factors

47In weighing the factors to determine if the justice of the case warrants an extension of time under section 7 in favour of the applicant, I find that there is some merit to the appeal and that the respondent did not suffer prejudice due to the lengthy delay because it conducted assessments during that period. As such, I find that the applicant has met her onus in demonstrating that the limitation period for commencing her application should be extended. 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

48For the reasons above, the applicant may proceed with her application before the Tribunal.