Singh v. TD General Insurance Company, 2023 CanLII 9245

Citation: Singh v. TD General Insurance Company, 2023 ONLAT 20-015124/AABS-PI

Licence Appeal Tribunal File Number: 20-015124/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:

Mahadai Singh

Applicant

and

TD General Insurance Company

Respondent

PRELIMINARY ISSUE DECISION

VICE-CHAIR: E. Louise Logan

APPEARANCES:

For the Applicant: Peter Cho, Counsel

For the Respondent: Andrez Belloso, Counsel

HEARD: By way of written submissions

REASONS FOR DECISION

BACKGROUND

1The applicant, Mahadai Singh, was involved in an automobile accident on January 3, 2018 and sought benefits from the respondent, TD General Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).¹

2The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). The parties participated in a case conference where a preliminary issue was identified, which proceeded to a written hearing before the substantive issues are heard.

PRELIMINARY ISSUE

3The following preliminary issue is to be decided:

a. Is the applicant barred from proceeding with her claim for non-earner benefits (“NEBs”) as she failed to commence her application within two years after the respondent’s refusal to pay the amount claimed?

RESULT

4I find that the applicant’s NEB claim was filed beyond the two-year limitation period. I exercise the Tribunal’s discretion under section 7 of the Licence Appeal Tribunal Act to extend the limitation period and allow the applicant to proceed with her claim for NEBs.

ANALYSIS

5The applicant applied for accident benefits arising out of a January 15, 2018 accident through Aviva and attended Insurer Examinations (IEs) with respect to her entitlement to NEBs. Aviva denied her claim on April 9, 2018.² The respondent accepted priority from Aviva in May 2018 and began adjusting the applicant’s claim. The applicant filed an application with the Tribunal on December 7, 2020 with respect to denial of NEBs.

Section 56 of the Schedule

6Pursuant to section 56 of the Schedule, the applicant has two years to commence an application with the Tribunal from the date an insurer refuses to pay the amount claimed. While the reason for denial does not have to be legally correct, it must be clear and unequivocal, and the notice of refusal must contain straightforward language so that the insured person can determine whether to appeal within the two-year limitation period.

7The respondent submits that Aviva’s April 9, 2018 letter was a clear and unequivocal denial of non-earner benefits. It enclosed insurer examination reports related to the denial, advised the applicant of the two-year limitation period to dispute the denial, and outlined the Tribunal application process. The applicant does not dispute that denial notice provided by Aviva, or that her application with the Tribunal was filed on December 7, 2020, after the two-year limitation period lapsed.

Section 7 of the Licence Appeal Tribunal Act

8Pursuant to section 7 the Licence Appeal Tribunal Act,³ the Tribunal has statutory discretion to extend the two-year limitation period in section 56 if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting the relief. The applicant argues that the Tribunal should extend the limitation period pursuant to section 7. The respondent argues that it should not.

9When considering whether to exercise discretion under section 7, the Tribunal considers the following four factors: i) the existence of a bona fide intention to appeal within the appeal period; ii) the length of delay; iii) prejudice to the other party; and iv) the merits of the appeal.⁴ These factors are not strict elements that must each be met in order to grant an extension of time, rather a holistic approach must be taken to the analysis.⁵ Whether or not to grant an extension of time depends on the specific facts of the case.⁶

10I will now consider each of the four factors.

The existence of a bona fide intention to appeal

11With respect to a bona fide intention to appeal the denial of NEBs, the respondent argues that the applicant had no bona fide intention to appeal before the expiry of the limitation deadline. The respondent submits that the applicant would have had semi-monthly reminders that the NEBs had been denied because she did not receive payments. The respondent further submits there is no evidence of extenuating circumstances preventing the applicant from filing an application, or from instructing her counsel to do so. The respondent also submits the absence of reports responding to the IE assessment is evidence that the applicant did not have a bona fide intention to appeal.

12The applicant submits she had a bona fide intention to appeal. She submits that her counsel made multiple unsuccessful attempts to obtain her accident benefits file, specifically on October 1, 2018, March 21, 2019 and November 25, 2020, which demonstrate her bona fide intention to appeal. In the absence of the file, the applicant submits her counsel located a copy of the denial letter in the clinical notes and records of her treating physiotherapist in November 2020, and she filed an application with the Tribunal on December 7, 2020. The applicant points to the decision in Amani v. Certas Home and Auto Ins (“Amani”)⁷ in support of her position. In that decision, new counsel made multiple attempts to obtain the insurance file during the appeal period, which the Tribunal found showed a bona fide intention to appeal. On reply, the respondent argues that the log notes⁸ show it called the applicant’s representative numerous times, but the calls were not returned. The respondent argues that these unreturned calls are evidence of a lack of intention to make a timely appeal of the denial of NEBs.

13I find the applicant has established she had a bona fide intention to appeal. In doing so, I note that the log notes submitted by the respondent on reply do show a number of messages were left for the applicant’s representative between October 22, 2018 and November 18, 2020. However, these log notes either simply state “no answer left message”, or where there is additional information provided it relates to the ongoing adjustment of the applicant’s file, not to her entitlement to NEBs or her request for a copy of her file. I do not agree with the respondent’s submission that these unanswered messages are evidence of a lack of intention to appeal.

14While not binding on me, I find the reasoning in Amani to be helpful to my analysis. As in Amani, there is evidence that the applicant’s new counsel made attempts to obtain the accident benefits file during the appeal period, specifically on October 1, 2018 and March 21, 2019. I agree with the analysis in Amani that these efforts to obtain a copy of the accident benefits file suggest a bona fide intention to appeal.

Length of Delay

15The applicant and respondent have differing perspectives on the length of the delay. The applicant argues the length of the delay should be viewed in light of the six-month suspension of limitation periods due to the COVID-19 pandemic, while the respondent submits that the impact of the suspension is unclear given the subsequent repeal of the Emergency Management and Civil Protection Act.⁹ In their submissions, both parties agree that the December 7, 2020 application is beyond the limitation period, even factoring in the six-month suspension.

16As both parties noted in their submissions, the limitation periods for all claims during the early months of the COVID-19 pandemic were extended by several months. Specifically, limitation periods were suspended between March 16 and September 14, 2020. As such, I agree with the applicant that the limitation period for filing her application with the Tribunal expired on October 9, 2020.

17The respondent argues there is no documented medical or personal crisis to explain the extensive delay on the part of the applicant, and cites social activities and travel undertaken by the applicant during the application period as relevant factors. The respondent submits that the applicant has not provided a reasonable explanation for the delay. The respondent also argues that the applicant would have had a constant reminder that the benefit was denied because she was not receiving semi-monthly payments.

18The applicant’s counsel notes that with the COVID suspension period taken into account, the delay in this case is only 59 calendar days. The applicant cites Bhavsar v. Aviva Insurance Company of Canada (“Bhavsar”)¹⁰ in which the Tribunal found that a delay of 64 calendar days is not considered to be a lengthy delay. On reply, the respondent submits a comparison with Bhavsar is not appropriate, as Bhavsar did not consider a situation similar to a COVID-19 suspension of limitation periods, and the applicant has failed to explain why no measures were taken to advance the appeal despite the fact the Tribunal and the law firms were still operating during the suspension period.

19I find this is not a factor in support of either party’s position. As noted above, having found the suspension period applies, the delay is 59 days. I do not consider this to be a very short, or a significant delay. I find that the respondent’s failure to provide a copy of her insurance file to counsel contributed to the delay. I do not find it relevant that the applicant undertook social activities or travel during the limitation period, or that she did not connect the absence of a benefit, which she had never received, to the expiration of a statutory limitation period.

Prejudice to the Respondent

20The respondent argues that it would suffer prejudice if the limitation period is extended. The respondent argues it is highly prejudiced because it has been denied the opportunity to arrange additional medical examinations, reports, addendum reports and surveillance contemporaneously with the benefits sought. It further argues it would be prejudiced because evidence may not be presented fairly and accurately due to the time delay, witnesses may not be available, and numerous intervening events, including a subsequent accident, have impacted the current claim for benefits.

21The applicant again cites Bhavsar in support of its position that the respondent would not suffer much, if any prejudice, and also cites S. W. v Aviva General Insurance,¹¹ where the Tribunal stated that barring an application will always prejudice the applicant in greater proportion to the insurer. The applicant further argues there is no prejudice to the respondent as it already has its expert medical opinions.

22I find this to be a factor in favour of the applicant. I am not persuaded that the respondent would suffer much, if any, prejudice by responding to an application filed 59 days beyond the statutory limitation period. I note that given the respondent’s good faith duty to the applicant, it is relevant that the respondent’s failure to provide a copy of her insurance file to counsel contributed to the delay. I also note that contemporaneous medical evidence was obtained which was sufficient to support the denial of the NEBs at the time of the applicant’s initial claim.

Merits of the Appeal

23Under this factor, the applicant bears the onus of establishing that there is some merit to her application. Analysis of this factor does not require me to make a determinative ruling on the merits, just to assess whether there is some merit to her claim based on the evidence before me.

24The applicant submits that the respondent was provided with the OCF-3 which indicates that the applicant suffered a complete inability to carry on a normal life. The applicant submits she has provided the respondent with clinical notes and records from Sunnybrook Hospital which confirm the applicant’s pre-accident injuries.¹² The applicant also cites the respondent’s Occupational Therapist’s In-Home Assessment Report of April 4, 2018 which outlines some of the applicant’s limitations in relation to homemaking, visits with her grandchildren, and driving.¹³ The applicant indicates she has not yet had the opportunity to tender her evidence, and has held off obtaining further documentation supporting her claim pending the outcome of the preliminary issue hearing.

25The respondent submits the applicant does not have a reasonable prospect of success on the merits and cites the following factors. The OCF-3 was prepared by a physiotherapist, not a physician or occupational therapist. The applicant has not provided any medical opinions contrary to the IE reports. The respondent argues that even if these opinions were obtained after the preliminary issue hearing, they would carry little value as they would not be contemporaneous. Moreover, it submits the references in the medical records to travel, holidays, social, recreational and family activities do not demonstrate she suffers a complete inability to carry on a normal life, pursuant to the test for NEBs.

26I find the applicant has shown there is some merit to her case. In doing so, I note that while the bar is low with respect to this factor, the onus remains with the applicant to show, through evidence, that there is some merit. I find that the OCF-3 indicates she has a complete inability to carry on a normal life but provides no more information about the basis for this assessment. The clinical notes and records from Sunnybrook Hospital confirm the applicant’s pre-accident injuries but do not provide medical evidence in support of her claim for NEBs. However, I find the respondent’s In-Home Assessment Report does provide relevant information, including that the applicant had not been able to return to housekeeping duties, was only able to spend a short period of time with her grandchildren due to her reduced tolerance, and avoids driving on the highway. On balance, I find the respondent’s In-Home OT Assessment Report shows there is some merit to the applicant’s case.

27All four factors do not need to be satisfied in order to grant an extension, but rather, I must undertake an analysis that views the factors holistically. From this perspective, I find that overall the applicant’s claim favours granting an extension to allow her to proceed. While I offer no substantive analysis of her claim, as noted above, I find that the limited medical evidence shows that there is some merit to the applicant’s case. I also find that the applicant has demonstrated a bona fide intention to appeal, and I am not persuaded there is prejudice to the respondent.

28On balance, I find the justice of the case supports the Tribunal exercising its discretion to extend the limitation period under section 7. The applicant is permitted to proceed with her application for NEBs.

CONCLUSION

29I exercise the Tribunal’s discretion under section 7 of the Licence Appeal Tribunal Act to extend the limitation period and allow the applicant to proceed with her claim for NEBs.

30As set out in the Case Conference Report and Order released August 4, 2021, the parties shall contact the Tribunal within 30 days of the release of this decision to schedule a case conference resumption to determine how to proceed with the substantive hearing.

Footnotes

1. 1O. Reg. 34/10
2. 2Letter and Denial from Aviva dated April 9, 2018, Tab 3 of the Applicant’s Submissions.
3. 3S.O. 1999, c. 12, Sched. G.
4. 4Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997.
5. 5Manuel v. Registrar, 2012 ONSC 1492.
6. 6R.S. v. Pafco Insurance Company, 2020 CanLII 27384.
7. 72021 CanLII 50799.
8. 8Log Notes from October 2018 to December 7, 2020, Tab A of the Respondent’s Reply Submissions.
9. 9O. Reg. 73/20.
10. 102021 CanLII 33694.
11. 112020 CanLII 12727.
12. 12Clinical Notes and Records of Sunnybrook Health Sciences Centre March 2, 2016 – May 8, 2018, Tab 14 of the Applicant’s Submissions.
13. 13Occupational Therapy In-Home Assessment Report dated April 4, 2018, Tab J of the Respondent’s Evidence Brief.