Licence Appeal Tribunal File Number: 22-013363/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:
Ashley Rogal
Applicant
and
TD General Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Ian Drong, Counsel
For the Respondent:
Michael Rattray, Counsel
Heard by way of written submissions
OVERVIEW
1Ashley Rogal, the applicant, was involved in an accident on February 10, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). The applicant was denied benefits by the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is whether the applicant is barred from a hearing for the income replacement benefits ("IRB") because the applicant failed to apply for the benefits within the limitation period as set out in section 56 of the Schedule?
RESULT
3The applicant is barred from proceeding with her claim for the IRB.
ANALYSIS
Background
4The applicant was involved in an accident on February 10, 2016. She did not immediately return to work and received the IRB. Insurer examinations ("IEs") were scheduled to address the applicant's entitlement to the IRB. On June 23, 2016, the respondent denied the IRB. The applicant's ongoing entitlement was terminated. The applicant returned to work. She worked at various places. On September 6, 2022, the applicant went on a medical leave. An updated disability certificate ("OCF-3") was submitted to the respondent on November 3, 2022. On December 24, 2022, the respondent denied her claim for the IRB based on the previous denial from June 23, 2016.
The law
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.
6Section 7 of the Licence Appeal Tribunal Act, 1999 ("LAT Act") allows the Tribunal to extend a limitation period. In considering whether to exercise its discretion to extend the limitation period, the Tribunal must consider the following four factors to determine if the justice of the case requires the extension:
a. A bona fide intention to appeal within the limitation period;
b. The length of delay;
c. Prejudice to the other party; and
d. Merits of the appeal.
7The onus is on the applicant to establish reasonable grounds for an extension under section 7 of the LAT Act.
Parties' positions
8The respondent submits that the limitation period starts when there is a refusal to pay the benefit. Therefore, it commenced on June 23, 2016. However, even if it is accepted that the limitation period did not commence until the applicant received the correspondence, a document delivered by ordinary mail is deemed to have been received on the fifth business day after the document was mailed, which would be June 28, 2016. The applicant disputed her entitlement to IRB well outside of the two-year limitation period. The respondent relies on P.W. v Certas Home and Auto Insurance Company, 2020 CanLII 42813, R.S. v Pafco Insurance Company, 2020 CanLII 27384
9The applicant submits that the principle of discoverability recognized in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 ("Tomec") ought to be applied to her claim for the IRB. She was advised by her insurer that she was deemed medically capable of returning to work, and she attempted to return to work at four different places of employment. She declined in her functionality and well-being. She is unable to work any further due to her accident-related injuries, and accordingly seeks entitlement to ongoing IRBs. The applicant relies on Pena v. Allstate Insurance Company of Canada, 2021 CanLII 117443 (ON LAT) ("Pena"), where the Tribunal extended the limitation period to dispute the IRB beyond the two-year mark.
Letter dated June 23, 2016
10In 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. If 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.
11I have reviewed the letter dated June 23,2016 and find that the respondent provided a clear and unequivocal denial. The letter provides the applicant with information regarding the termination of the IRB, how she could appeal the denial and references to the two-year limitation period.
12In my view, the principle of discoverability is not applicable in this case because the applicant was well-aware of the fact that she sustained an injury, claimed the IRB and received it for a period of time. Pena is distinguishable from this case because the Tribunal found that there was no valid denial because the applicable benefit had never actually been claimed until after the applicant stopped working.
13Moreover, in Landa v The Dominion of Canada General Insurance Company, 2022 CanLII 49956 (ON LAT), the Tribunal clarified the finding in Pena. The Tribunal stated that if the limitation period was appropriately triggered, the Tribunal should exercise its discretion to extend the limitation period because the applicant diligently pursued an IRB disputing the insurer's decision within a year. In the facts before me, the applicant did not pursue her right to challenge the respondent's decision within the limitation period. Therefore, I find that the applicant did not dispute the denial within the two-year limitation period.
Applying the analysis for Section 7 of the LAT Act
14The four factors described earlier are referred to as the "Manuel factors" and 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.
Bona fide intention
15The applicant did not provide submissions regarding her bona fide intention to appeal within the appeal period. The respondent submits that the applicant did not demonstrate any intention to dispute the denial within the limitation period. The respondent only became aware of the applicant's intention to dispute the denial of the IRB when it received the OCF-3 dated November 23, 2022 on November 28, 2022. This is more than four years after the limitation period expired.
16I find that the applicant has not satisfied the Tribunal that she had a bona fide intention to appeal within the appeal period. She did not dispute the denial until approximately four years after the denial. She has not provided any submissions or evidence that supports her bona fide intention to appeal within the appeal period.
Length of the delay
17The applicant did not provide submissions regarding the length of the delay. The respondent submits that the length of the delay is substantial and indicates a blatant disregard by the applicant for the limitation period. The limitation period was missed for four years. Given the lack of any reasonable explanation for the length of the delay, the respondent submits that the factor favours enforcing the limitation period. I find that there is a significant delay, and the applicant has not provided any submissions or evidence to explain the reason for this delay.
Prejudice to the other party
18The applicant submits that there is no prejudice to the respondent in terms of assessing the applicant because she is not seeking to have the IRB reinstated retroactive to the June 2016 denial, but rather to the submission of the updated OCF-3 in November 2022. Furthermore, extensive medical records are available and have been provided to the respondent over the course of this claim, and the applicant has recently attended a multidisciplinary insurer's examination.
19The respondent submits that they are prejudiced by the delay imposed by the applicant's failure to comply with the limitation period. The applicant has not been assessed since May 2016 with respect to her entitlement for IRB. Accordingly, the prejudice should favour not granting an extension.
20I find that the respondent is prejudiced by this delay. When the applicant's conditions started to deteriorate, the respondent was not provided with an opportunity to assess her because they were unaware. Although the applicant is seeking the IRB from November 23, 2022 to date and ongoing, the respondent has been deprived the ability to assess whether her current state is caused by the accident. In my view, this places the respondent at a disadvantage.
Merits of the appeal
21The applicant submits that there is ample evidence to support her entitlement to IRB. Additional medical reports and records have been provided to the respondent.
22The respondent submits that the evidence does not support that the applicant has a complete inability to carry on a normal life as a result of the subject accident. The Insurer Examination reports support that she does not meet the test for the benefit, and the Applicant has failed to provide any documentation from the time period in which she would be entitled to the benefit, to support entitlement. The only documentation which supports her entitlement within the two-year entitlement period is an OCF-3, dated March 3, 2016, which indicated a disability duration in the range of 9 to 12 weeks. Accordingly, this factor also supports an extension being denied.
23The applicant has not established that her appeal has merit. She has not directed the Tribunal to pinpoint references that supports her position. In my view, the fact it was determined that she did not suffer a substantial inability to perform the essential tasks of her pre-accident employment and she continued to work, then it follows that she would not likely satisfy the post 104-week complete inability test.
24As such, I find that the applicant did not satisfy me that the justice of the case favours an extension of the time to appeal. I decline to exercise my discretion.
ORDER
25For the reasons above, I find that the applicant is statute-barred from proceeding with the IRB. The remainder of the substantive issues will proceed to the hearing.
Released: September 15, 2023
___________________________
Tavlin Kaur
Adjudicator