20-010495/AABS

Licence Appeal Tribunal File Number: 20-010495/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:

Manjit Banga

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Sunish Rai Uppal, Counsel

Dr. Jordan B. R. Palmer, Counsel

For the Respondent:

Michael W. Chadwick, Counsel

HEARD: By way of written submissions

OVERVIEW

1Manjit Banga (“the Applicant”) was involved in an automobile accident on June 22, 2016 and sought benefits from Certas Home and Auto Insurance Company (“the Respondent”). The Applicant had a motor vehicle liability policy in place at the time of the accident, effective May 18, 2016.

2Initially, the Applicant’s policy was governed by the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“the 2010 Schedule”). However, a new version of the Statutory Accident Benefits Schedule came into effect on June 1, 2016, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “2016 Schedule”). The 2016 Schedule came into force after the Applicant’s policy came into place, but before the subject accident.

3One key change from the 2010 Schedule to the 2016 Schedule is that it raised the threshold for determining a catastrophic impairment. Under the 2010 Schedule and pursuant to criterion “f”, the Applicant was required to demonstrate that she sustained a marked impairment in one of the four domains of functioning. However, the mirroring section in the 2016 Schedule, criterion 8, requires that the Applicant demonstrate a marked impairment in 3 of the 4 domains of functioning.

4The Applicant argues that the threshold for determining a catastrophic impairment in the 2010 Schedule applies to her case. Whereas the Respondent submits that the threshold outlined in the 2016 Schedule applies.

5The Applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

6In response to the application, the Respondent raised two preliminary issues, which are at issue for this hearing.

PRELIMINARY ISSUES

7The two preliminary issues for this hearing are:

i. Is the Applicant subject to the catastrophic impairment definitions as outlined in the 2010 Schedule or the 2016 Schedule? and

ii. Is the Applicant statute-barred from proceeding with her claims related to substantive issues numbered 1, 2, 3, 4, and 5, because of section 56 of the Schedule?

ISSUES

8The substantive issues in dispute, but not before me, are:

1. Is the applicant entitled to income replacement benefits (“IRBs”) in the amount of $400.00 per week from May 20, 2017, to date and ongoing?

2. Is the applicant entitled to $2,399.49 for chiropractic services, proposed by Complete Rehab Centre in a treatment plan/OCF-18 (“plan”) dated February 7, 2017?

3. Is the applicant entitled to $115.00 for other goods and services in a plan dated October 28, 2016?

4. Is the applicant entitled to $2,108.11 for chiropractic services, proposed by Complete Rehab Centre in a plan dated May 29, 2017?

5. Is the applicant entitled to $1,816.74 for chiropractic services, proposed by Complete Rehab Centre in a plan dated December 14, 2017?

6. Is the applicant entitled to $ 1,591.12 for chiropractic services, proposed by Complete Rehab Centre in a plan dated May 9, 2018?

7. Is the applicant entitled to $1,997.40 for psychological services, proposed by Alliance Diagnostics in a plan dated July 5, 2018?

8. Is the applicant entitled to $1,999.99 for other goods and services, proposed by Alliance Diagnostics in a plan dated July 5, 2018?

9. Is the applicant entitled to $1,998.80 for other goods and services, proposed by Alliance Diagnostics in a plan dated July 5, 2018?

10. Is the applicant entitled to $1,299.74 for chiropractic services, proposed by Complete Rehab Centre in a plan dated August 10, 2018?

11. Is the applicant entitled to $1,995.55 for other goods and services, proposed by Alliance Diagnostics in a plan dated July 5, 2018?

12. Is the applicant entitled to $1,497.99 for chiropractic services, proposed by Alliance Diagnostics in a plan dated July 5, 2018?

13. Is the applicant entitled to $1,299.74 for chiropractic services, proposed by Complete Rehab Centre in a treatment plan/OCF-18 (“plan”) dated October 18, 2018?

14. Is the applicant entitled to $1,299.74 for chiropractic services, proposed by Complete Rehab Centre in a plan dated February 28, 2019?

15. Is the applicant entitled to $1,252.49 for chiropractic services, proposed by Complete Rehab Centre in a plan dated September 27, 2019?

16. Is the applicant entitled to $169.50 for other goods and services, proposed by Injury Management & Medical Assessments in a plan dated November 14, 2019?

17. Is the applicant entitled to $2,260.00 for other goods and services, proposed by Injury Management & Medical Assessments in a plan dated November 14, 2019?

18. Is the applicant entitled to $2,429.50 for other goods and services, proposed by Injury Management & Medical Assessments in a plan dated November 14, 2019?

19. Is the applicant entitled to $2,486.00 for other goods and services, proposed by Injury Management & Medical Assessments in a plan dated November 14, 2019?

20. Has the applicant sustained a catastrophic impairment as defined by the Schedule?

21. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

22. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

9The Applicant is subject to the catastrophic impairment definitions as outlined in the 2016 Schedule.

10The Applicant is barred from proceeding with her claim related to her entitlement to IRBs as she failed to submit an application to dispute the Respondent’s denial within 104 weeks, as outlined in section 56 of the Schedule.

11The Applicant’s application to dispute her entitlement to the medical and rehabilitation benefits is untimely. However, I have elected to exercise my discretion and permit the Applicant to proceed with these claims pursuant to section 7 of the Licence Appeal Tribunal Act (the “LAT Act”).

12A case conference shall be scheduled within 60 days following the release of this decision to address the remaining issues in dispute.

BACKGROUND

13The Applicant was the rear-seat passenger of a vehicle which was struck on the driver’s side by an oncoming vehicle making a left turn in a controlled intersection. She was taken to the hospital by ambulance where she was x-rayed and discharged the same day. The Applicant developed mental and behavioural impairments following the accident and has since applied for a determination that she sustained a catastrophic impairment as a result of the accident.

Analysis

Preliminary issue 1: What definition of Catastrophic Impairment applies to the Claim?

17-007264 v. Allstate Insurance, 2018 CanLII 132563 (ON LAT) (“HS”)

14The interplay between the catastrophic impairment criteria outlined in the 2010 Schedule and the 2016 Schedule was addressed in HS. In that case, the Tribunal reasoned that the catastrophic impairment definition in the 2016 Schedule applies to all accidents which occur on or after June 1, 2016. HS found that section 68 of the 2016 Schedule regarding transitional provisions is not applicable because that section applies to claims under policies that were in force on September 1, 2010. HS also found that the insurer in that case never waived its rights to rely on the catastrophic impairment definition in the 2016 Schedule when it paid benefits pursuant to the 2010 Schedule. Lastly, HS found no vested right to the definition of catastrophic impairment pursuant to the 2010 Schedule.

15The Applicant acknowledges the similarities with her case and HS but submits that HS is not binding on the preliminary issue hearing, and it does not address the issues raised in her submissions. According to the Applicant, section 2(1.2) of the 2016 Schedule legacies in section 18(3)(b) of the 2010 Schedule. Further, the Applicant submits that reference to “catastrophic impairment” in section 18(3)(b) naturally means the definition of catastrophic impairment as outlined in the 2010 Schedule. She submits that it would be inconsistent to have a hybrid clause which simultaneously refers to sections of the 2010 Schedule and the 2016 Schedule. She submits that by referring to the 2010 Schedule immediately prior to its revocation, the drafters of the legislation intended to signal the survival of all of section 18(3) from the 2010 Schedule, including the definition of catastrophic impairment.

16Lastly, the Applicant submits that the 2016 Schedule is “benefits conferring” legislation which should be interpreted in a broad and generous manner and any difficulties should be remedied in favour of the Applicant, thus finding her to have sustained a catastrophic impairment.

The monetary limits provided in section 18(3) is legacied in

17Section 2(1) of the 2016 Schedule states that, “(e)xcept as otherwise provided, the benefits set out in this Regulation shall be provided under ever contract evidenced by a motor vehicle liability policy in respect of accidents occurring on or after September 1, 2010.”

18Section 1(1.2) of the 2016 Schedule legacies in the monetary limits for catastrophic impairment claims for transitional policies like the Applicant’s. Section 1(1.2) provides that sections 18(3) to 18(5) apply in respect of contracts entered into or renewed on or after September 1, 2010 and before June 1, 2016. Which is where the Applicant’s policy falls.

Does reference to “catastrophic impairment” in section 18(3) mean that the definition from the 2010 Schedule applies?

19I find that reference to “catastrophic impairment” in sections 18(3)-(5) and section 19(3) of the 2010 Schedule in the transitional provisions in the 2016 Schedule does not mean the “catastrophic impairment” definition in the 2010 Schedule applies to the 2016 Schedule.

20Sections 18(3)-(5) and 19(3) of the 2010 Schedule address monetary limits for transitional policies only. For example, section 18(3)b stipulates that the monetary limits for medical and rehabilitation benefits shall not exceed $1,000.000.00 if the insured person sustained a catastrophic impairment as a result of the accident. Section 19(3)(2)(i) of the 2010 Schedule provides an additional $1,000,000.00 coverage for attendant care benefits. These transitional provisions provide an additional $1,000,000.00 of coverage to the Applicant, relative to the limits in the 2016 Schedule. Section 18(3)(b) of the 2016 Schedule lumps medical, rehabilitation, and attendant care benefits together under a $1,000,000.00 cap.

21I find that the “catastrophic impairment” definition in the 2016 Schedule applies because that is the version of the schedule which I find, and all parties agree, is the applicable regulation governing the Applicant’s policy. The 2016 Schedule provides its own definition of catastrophic impairment. Appling the definition as outlined in the governing legislation at the time of the accident is the most harmonious interpretation of the legislation.

22In addition, if the 2016 Schedule planned on including the catastrophic impairment definition in the 2010 Schedule it would explicitly say so. Section 1(1.2) of the 2016 Schedule states that the “provision” in 18(3) of the 2010 Schedule applies. It would say that the provision and all related or connected provisions apply. Alternatively, it would include specific reference to the criterion listed in the 2010 Schedule. Yet, it does not.

23Contrary to the Applicant’s submissions, it is not inconsistent to have a hybrid clause which simultaneously refers to sections of the 2010 Schedule and the 2016 Schedule and I am not compelled to find in favour of the Applicant on this ground. As I have explained, I find it possible, and reasonable, for the 2010 Schedule to refer to the catastrophic impairment definition in the 2016 Schedule. That is because the Applicant seeks benefits pursuant to the 2016 Schedule and, as outlined earlier, it already includes a definition of catastrophic impairment which ought to be applied to all accidents which occur after June 1, 2016. Otherwise, the 2016 Schedule would include or make specific reference to the catastrophic impairment definition in the 2010 Schedule. Alternatively, this interpretation could’ve also been included in the transitional provisions had that been the intention of the legislature. Yet, there is no specific reference to catastrophic impairment in the transitional provisions in section 2 of the 2016 Schedule.

24The inclusion of section 20 of the 2010 Schedule for transitional policies under the 2016 Schedule does not compel me to interpret the legislation more broadly or more generously. Rather, it does the opposite. Reference to section 20 of the 2010 Schedule in the transitional provisions indicates that the 2016 Schedule sought to include some provisions of the 2010 Schedule and exclude others. Here, it included the duration for claiming benefits in the 2010 Schedule, which is more generous than the duration for claiming benefits under the 2016 Schedule.

25Section 2(1.1)2 of the 2016 Schedule includes reference to the catastrophic impairment definition outlined in sections 3(2) to 3(6) of the 2010 Schedule. It states that the catastrophic impairment definition outlined in the 2010 Schedule applies to accidents which occur on or after September 1, 2010 and before June 1, 2016. Thus, I interpret this to mean that the catastrophic impairment requirements in the 2010 Schedule do not apply to the Applicant’s accident because it occurred after June 1, 2016.

26Whereas section 2(1.2) refers to policies renewed on or after September 1, 2010 and before June 1, 2016, and applies to the Applicant. This section fails to make reference to the catastrophic impairment definition. To me, referring to the catastrophic impairment definition in one subsection regarding accidents and omitting reference to it in the following subsection in the 2016 Schedule indicates an intention to omit the definition in the 2010 Schedule from all policies in force on or after June 1, 2016, including transitional policies.

27Lastly, the use of the term “as they read immediately before O. Reg. 251/15 came into force” simply directs the reader to the correct historical version of the legislation. There have been several changes or amendments to the Statutory Accident Benefits Schedule and the term was used to specifically identify the transitional provisions in the 2010 Schedule which temporarily prevail over certain sections of the 2016 Schedule.

28While the Applicant was, at one time, subject to the catastrophic impairment definition outlined in the 2010 Schedule, she is nevertheless subject to the catastrophic impairment definition outlined in the 2016 Schedule.

Preliminary issue 2: Is the applicant barred from proceeding with her claims?

29There is no dispute that the Applicant failed to commence an application within two years after the Respondent’s refusal to pay certain claims, as required by section 56 of the Schedule. As a result, I must consider whether the limitation period to dispute an insurer’s denial should be extended regarding the following claims;

i. IRBs for the period from May 20, 2017, to-date and ongoing; and

ii. Medical and rehabilitation benefits submitted as follows;

i. Treatment and assessment plan in the amount of $2,399.49, dated February 7, 2017;

ii. Treatment and assessment plan in the amount of $2,108.11, dated May 29, 2017;

iii. Treatment and assessment plan in the amount of $1,816.74, dated December 14, 2017; and

iv. The unapproved balance relating to a disability certificate, dated October 28, 2016.

30I decline to exercise my discretion to extend the limitation period as it relates to IRBs. The Applicant is barred from disputing her entitlement to the IRBs as a result of my decision. However, I chose to exercise my discretion to extend the limitation period with respect to the medical and rehabilitation benefits and allow the Applicant to proceed with her application to dispute her entitlement to those benefits.

31Pursuant to section 56 of the 2016 Schedule, the Applicant has two years from the date of the denial to apply to the Tribunal to dispute the Respondent’s refusal to pay a benefit. However, the two-year limitation period may be extended by operation of section 7 of the LAT Act.

32Section 7 of the LAT Act provides the Tribunal with the jurisdiction to extend a limitation period. Any extension granted pursuant to section 7 must consider the following factors; length of delay, whether the Applicant had a bona fide intention to appeal within the appeal period, the prejudice to the other side, and the merits of the appeal.

33The parties agree that the Respondent’s respective denials of benefits are compliant with the notice requirements set out in section 38 of the 2016 Schedule. The parties further agree that application was submitted after the two-year limitation period expired for some of the denials. Thus, this preliminary issue turns on whether I find that the application should be permitted to proceed by operation of section 7 of the LAT Act.

34The Respondent submits that this is not the appropriate case to extend the limitation period. It submits that the two-year limitation provided in section 56 of the 2016 Schedule suggests that it was the intention of the legislature to address these disputes in a timely manner and it would be contrary to permit an insured person to advance this application without any consequences regarding the expiration of the limitation period.

35The Respondent further submits that the Applicant withdrew a prior application with some of these same issues in dispute, and that such action indicates an intention not to proceed. It characterizes the length of delay as extraordinary and submits that it suffers incurable prejudice if the application is permitted because it has been denied the opportunity to obtain evidence as to the Applicant’s ongoing medical and vocational state. To the Respondent, the Applicant’s application for a determination of catastrophic impairment alone, should not outweigh the other factors when considering an extension of the limitation period.

36The Applicant submits that she intended to appeal the denials within the two-year limitation period, that the Respondent fails to appreciate that the limitation period was temporarily paused during the COVID-19 pandemic, that there is no prejudice to the Respondent if the limitation period is extended, and that her claim has merit as she has demonstrated to have sustained at least one marked impairment in the mental and behavioural domains and she is pursuing a claim for a determination of catastrophic impairment.

37I find that the four factors to consider when determining whether to extend the limitation period pursuant to section 7 of the LAT Act weigh in favour of the Respondent with respect to IRBs only. Otherwise, I find that the factors weigh in favour of the Applicant being permitted to pursue her claim for the following reasons.

Bona Fide Intention to Appeal

38I find that this factor weighs in favour of the Respondent because the Applicant’s withdrawal of her prior application signalled an end to her intention to appeal the denial.

39It is undisputed that all but one (the unapproved balance of a disability certificate) of the claims were before the Tribunal in a separate application, submitted April 9, 2018. The Respondent issued a response to the application and a case conference was scheduled. The application was withdrawn on July 4, 2018, two days prior to the scheduled case conference.

40While the application submitted April 9, 2018, indicates and bona fide intention to appeal, I find that the Applicant’s subsequent withdrawal of the Application signified an end to her intention to appeal. The Applicant’s submissions provide no other evidence or reason showing an intention to further appeal these claims. The Applicant continued to pursue accident benefits, including a catastrophic impairment determination but, I am unable to make any connection between this behaviour and an intention to appeal previously denied benefits.

41While I acknowledge that the withdrawal of applications at the Tribunal are on a without prejudice basis, I consider this factor and the Applicant’s actions to be meaningful. It is undisputed that the Applicant had an opportunity to engage in the process at a time contemporaneous with her claims but chose to withdraw from the process.

Length of Delay

42I find that the length of delay with respect to all of the Applicant’s claim favours the Respondent.

43It is undisputed that this application was submitted no earlier than September 10, 2022. The denial, limitation period, and length of delay relating to the benefits are as follows;

Benefit

Date of denial

Limitation Period

Length of delay

IRBs

May 20, 2017

May 20, 2019

1 yr 3 mo

Feb 7, 2017 Treatment Plan

April 9, 2017

April 9, 2019

1 yr 3 mo

Disability Certificate

May 30, 2017

May 30, 2019

1 yr 3 mo

May 29, 2017 Treatment plan

June 13, 2017

June 13, 2019

1 yr 2 mo

December 14, 2017 Treatment plan

Dec 30, 2017

Dec 30, 2019

8 mo

44With the exception of the December 14, 2017 treatment plan, the application to dispute these denials was received by the Tribunal more than one year following the expiration of the two-year limitation period (and more than three years following the denial). While the Applicant notes in her submissions that the limitation period was paused during the COVID-19 pandemic, she fails to appreciate that her limitation period expired prior to the onset on the pandemic. Thus, the suspension of the limitation period during the COVID-19 pandemic had no impact on the Applicant’s ability to file an appeal within the limitation period.

45Though it is not a requirement in the analysis to extend the limitation period, I note that the Applicant has provided no explanation as to why her application is untimely. The Applicant provided no submissions on why she withdrew her initial application and never addressed why it took her more than two years to file a new application. I further note that, while the limitation period may have been suspended, the Tribunal continued to accept and process applications.

Prejudice to the Other Party

46I find that the prejudice to the Respondent as a result of the delay, particularly with respect to the Applicant’s claim for IRBs, cannot be mitigated by the insurer’s examination reports it obtained. I acknowledge that the Respondent obtained and made its determination on the Applicant’s entitlement to certain benefits based on insurer’s examinations and that those reports are often used to make determination on other benefits. This cannot be the case for the Respondent in this matter because the insurer’s examination reports are not contemporaneous with the Applicant’s ongoing claim for IRBs. The multidisciplinary insurer’s examination reports are dated May 2017 and the application to dispute ongoing entitlement to IRBs was made in September 2020, more than three years after the reports were issued. As a result, the Respondent’s reports were over three years old at the time the application was filed and provide no insight on the Applicant’s ongoing entitlement, which is at issue in her application regarding her claim for IRBs.

47The Respondent’s catastrophic impairment assessment reports mitigate the issue partly, but not entirely. The Respondent conducted assessments in late 2020 and early 2021 regarding the Applicant’s claim for a determination of catastrophic impairment and it might rely on the corresponding reports when considering the Applicants ongoing entitlement to IRBs. However, this does not resolve the fact that the Respondent was not given the opportunity to assess the Applicant for ongoing entitlement to IRBs at a time contemporaneous with the claim. Considering the expiration of the two-year limitation period, it would be unreasonable for the Respondent to contemplate that the Applicant would dispute the denial of IRBs at this time and to assess the Applicant’s ongoing entitlement to the benefit.

48On the other hand, there is virtually no prejudice to the Respondent in defending its denial of the medical and rehabilitation benefits listed above. Those claims are related to a period in which the Respondent obtained clear medical opinions regarding the Applicant’s health status and there is no need for the Respondent to seek a second opinion or an opinion on ongoing entitlement.

49Lastly, several other medical and rehabilitation benefits remain in dispute and there is virtually no prejudice to the Respondent in defending its refusal to pay for the untimely claims in addition to the claims that are not subject to the limitation period. I consider this factor to hold the most weight when contemplating whether to exercise my discretion to extend the limitation period on the medical and rehabilitation benefits.

Merits of the Appeal

50The merits of the Applicant’s appeal appear to weigh in her favour for the medical and rehabilitation benefits claimed but not with respect to her claim for IRBs.

51The Applicant sustained a mental and behavioural impairment as a result of the accident. While the Respondent downplays the Applicant’s accident-related injuries, a physician completed an OCF-19 to support her claim that she sustained a catastrophic mental and behaviour impairment as a result of the accident. I find that this issue ought to be further considered at a hearing on the merits.

52With respect to IRBs, the merit of the Applicant’s claim does not outweigh the other factors. The prejudice to the Respondent in its inability to assess the Applicant’s ongoing entitlement to the benefit is incurable. The Applicant’s inaction has effectively removed the Respondent’s ability to obtain timely and relevant opinions on the Applicant’s ongoing entitlement to the benefit. Permitting the Applicant to address entitlement to IRBs could be interpreted as condoning behaviour that is detrimental to the fair and efficient adjudication of the issues.

53Considering the four factors and weighing those factors according to the importance of the case, I chose to exercise my discretion and permit the Applicant to proceed with her claims for medical and rehabilitation benefits. Regarding the Applicant’s claim for IRBs, I find that the prejudice to the Respondent far too great to remedy in any meaningful way. Thus, I choose not to exercise my discretion pursuant to section 7 of the LAT Act and will not permit the Applicant’s claim for IRBs to proceed to a substantive hearing.

ORDER

54The Applicant is subject to the catastrophic impairment definitions as outlined in the 2016 Schedule.

55While her application was filed after the limitation period prescribed by section 56 of the Schedule, I choose to exercise my discretion pursuant to section 7 of the LAT Act and to permit the portion of the application disputing entitlement to the treatment and assessment plans and the cost of a disability certificate to proceed. However, the Applicant is barred from proceeding with her application disputing her entitlement to IRBs.

56A case conference shall be scheduled within 60 days following the release of this decision to address the remaining issues in dispute.