Licence Appeal Tribunal File Number: 23-004884/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:
Stalin Thiruchelvam
Applicant
and
Aviva Insurance Company of Canada
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
David S. Wilson, Counsel
For the Respondent:
Cezary Paluch, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Stalin Thiruchelvam, the applicant, was involved in a motor vehicle accident on September 4, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied certain benefits by the respondent, Aviva Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is:
i. Is the applicant barred from proceeding to a hearing for attendant care benefits because the applicant failed to dispute their denial within the 2- year limitation period?
RESULT
3The applicant is barred from proceeding with his claim for pre-104 week attendant care benefits.
4The applicant may proceed to the substantive hearing with his claim for post-104 week attendant care benefits.
PROCEDURAL ISSUE
The applicant’s submissions beyond the 10-page double-spaced limit have been assigned less weight
5The Case Conference Report and Order (“CCRO”) dated December 28, 2023 stipulated a 10-page limit for submissions. The CCRO further stated that submissions were to be double-spaced, in 12-point font. The applicant submitted nine-pages of submissions, single-spaced. The respondent requests that I exercise my authority to disregard pages in excess of the limit. It argues that it has been prejudiced by the applicant’s disregard of the Tribunal order and that it had tailored its preliminary issue hearing submissions in a more limited manner, in order to comply with the page limits.
6The applicant subsequently brought a Notice of Motion, to be heard at this hearing, requesting that the CCRO be amended to permit the applicant to deliver single-spaced submissions and permitting the respondent to deliver a lengthier reply. The applicant submitted that he had inadvertently overlooked paragraph 21 of the CCRO which stipulated that submissions must be double-spaced, and that the counsel that prepared the submissions was not the same counsel that had attended the case conference. The applicant further argued that as paragraph 21 was separated from the section of the CCRO which discussed the preliminary issue hearing, it was reasonable to interpret paragraph 21 as not being applicable to the preliminary issue submissions. Finally, the applicant submits that the first two pages of his submissions were not “submissions” as they were simply a timeline and as such, could have been included as a separate tab.
7I am not persuaded by the applicant’s argument that the CCRO was unclear. Paragraph 21 is contained at the end of the CCRO, under the section “Other Procedural Matters”. From my review of the CCRO, it is clear that paragraph 21 applies to the entire CCRO and covers all submissions to the Tribunal.
8However, in accordance with Rule 3.1(a) of the Licence Appeal Tribunal Rules, 2023 (“the Rules”), I must ensure that the Rules are liberally interpreted to ensure procedural fairness to both parties, and the efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal. While I note the respondent’s argument as to the prejudice it has suffered, there is also prejudice to the applicant if his submissions past page five were excluded.
9When weighing procedural fairness and any potential prejudice brought, I find that the applicant would be severely prejudiced if portions of his submissions were otherwise excluded in this matter. However, I agree with the respondent that Tribunal orders must be followed. While I am prepared to admit the applicant’s full submissions in this instance, I will assign the non-compliant portions whatever weight I deem appropriate. However, this should not be viewed as tacit acceptance of a blatant breach of the Tribunal’s Order.
ANALYSIS
Law
10Section 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.
11Section 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 set out in Manuel v. Registrar, 2012 ONSC 1492, 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.
Background
12The applicant was involved in an accident on September 4, 2013. After a four-day hearing, by way of a Financial Services Commission of Ontario (“FSCO”) Order dated April 26, 2018, the applicant was found to be catastrophically impaired (“CAT”) and entitled to certain treatment plans in dispute. Attendant Care Benefits (“ACBs”) were not an issue in dispute at the FSCO hearing.
13The respondent appealed the FSCO Order on May 24, 2018, and on July 5, 2018, Director’s Delegate David Evans granted a stay of the FSCO Order pending the respondent’s appeal. Around this period, the applicant submitted an Assessment of Attendant Care Needs (“Form 1”) to the respondent, for the first time. The applicant had not applied for ACBs previously. By way of letter dated July 24, 2018, the respondent denied the applicant’s ACB claim. It confirmed receipt of the applicant’s Form 1 on July 10, 2018 and stated that ACBs are not payable prior to the submission of a Form 1, and that pursuant to s. 20 of the Schedule, ACBs are not payable for more than 104 weeks post-accident, unless the applicant was found to be CAT.
14On April 12, 2019, Director’s Delegate Evans permitted the respondent’s appeal and dismissed the applicant’s accident benefits claim and the CAT determination. The applicant applied for a judicial review of the April 12, 2019 decision. On January 28, 2022 the Ontario Divisional Court granted the applicant’s application and quashed the Director’s Delegate’s decision dated April 12, 2019. The original FSCO Order dated April 26, 2018, was restored, except for a reduction of costs.
15On April 25, 2023, the applicant filed an application with the Tribunal claiming ACBs in the amount of $1,497.51/month from September 11, 2014, to date and ongoing. The respondent wrote to the applicant on April 27, 2023, advising the applicant that as he met the criteria for CAT impairment, he was entitled to increased benefits, including up to $6,000/month in ACBs. In a follow-up letter dated May 3, 2023, the respondent referenced its July 24, 2018 denial, and advised that it was now agreeable to pay ACBs in the amount of $1,497.51/month effective July 10, 2018 (the date of receipt of the Form 1).
16The respondent continued to pay ACBs while conducting insurer’s examinations to assess the applicant’s entitlement to the benefit. From the parties’ submissions, it is unclear whether all of the scheduled IEs have been completed, or if the respondent is currently paying ACBs to the applicant.
Parties’ positions on s. 56 limitation period
17The respondent’s position is that the applicant failed to submit his application to the Tribunal within the two-year limitation period specified in s. 56 of the Schedule. It submits that the July 24, 2018 correspondence was a clear and unequivocal denial of the ACB claim, which triggered the limitation period. However, the applicant did not dispute the denial until almost five-years later, on April 25, 2023. The respondent argues that the limitation period continued to run despite any appeal of the CAT designation and cites s. 20(3) of the Insurance Act, which states that:
(3) An application for judicial review and any appeal from an order of the court on the application does not stay the decision made under this Act. R.S.O. 1990, c. I.8, s. 20(3).
18The respondent submits that there is nothing in the Schedule, Insurance Act, or Limitations Act that allows for a suspension of a limitation period pending an appeal determination. It contends that the July 5, 2018 stay letter from the Director’s Delegate similarly did not say anything about an extension to the limitation period. Given the unequivocal denial of the ACB claim the onus was on the applicant to take steps to preserve the limitation period during the stay and appeal period. The respondent argues that no such steps, such as a tolling agreement, were taken by the applicant.
19The respondent further argues that the discoverability principle as set out in the Ontario Court of Appeal decision Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882, is not applicable in the present circumstances. The respondent submits that the applicant’s entitlement to pre-104 week ACBs was not dependant on a CAT designation and as such, the doctrine of discoverability would clearly not apply to this period.
20With respect to the post-104 week ACBs, the respondent submits that unlike in Tomec, the applicant was found to be CAT prior to the July 24, 2018 denial letter. On April 28, 2018, the applicant was found to be CAT and as such, the applicant was eligible for and aware of his claim to post-104 week ACBs prior to any denial of the benefit. Once the respondent provided its unequivocal denial on July 24, 2018, the limitation period began. The respondent submits that there is nothing in Tomec that suggests that a stay or an appeal would extend a limitation period.
21The applicant disputes that the respondent’s July 24, 2018 correspondence was a clear and unequivocal denial and submits that the respondent waived or amended its denial with respect to post-July 10, 2018 ACBs. He argues that the respondent’s recent correspondence, beginning April 27, 2023, and the fact that the respondent began paying ACBs, are evidence that the respondent was not disputing entitlement. The applicant argues that it is incomprehensible that the respondent recently agreed that the ACBs are payable, while advancing a position that the same claim should be dismissed.
22The applicant further submits that the two-year limitation period did not accrue during the period of the stay and appeal. He argues that s. 20(3) of the Insurance Act, as cited by the respondent, is not applicable to the present case since it refers to an “appeal from an order of the Court”. Rather, the applicant submits that s. 21 and s. 283 of the Insurance Act in effect at the time are applicable, and state that an appeal “does not stay the order of the arbitrator unless the Director decides otherwise”. The applicant argues that this is exactly what the Director’s Delegate did on July 5, 2018, when he stated, “I am granting a stay of the entire order.” As such, the applicant submits that he was unable to rely on the CAT designation to support his ACB claim, during the period of the stay.
23This continued after April 12, 2019 when the respondent’s appeal was permitted and the applicant’s CAT designation was dismissed. The applicant submits that it was only after January 28, 2022 when the Divisional Court quashed the April 12, 2019 decision and restored his CAT designation, that he could again rely on his CAT designation to support his claim for post-104 week ACBs. As such, the applicant submits that his April 25, 2023 application to the Tribunal was well within the two year limitation period stipulated in s. 56.
Pre-104 week ACBs
24I agree with the respondent that the applicant’s claim for pre-104 week ACBs was not filed within the two-year limitation period specified in s. 56 of the Schedule. The respondent’s July 24, 2018 correspondence was a clear and unequivocal denial of the claim, stating that no ABCs were payable prior to the submission of a Form 1.
25I find that the limitation period began running from the time of the valid denial, and was unaffected by the subsequent stay of the CAT designation. The applicant’s April 25, 2023 filing of the Tribunal application was well-outside the two-year period. The applicant has not provided any specific submissions on s. 7 of the LAT Act with respect to pre-104 week ACBs. Rather, his s. 7 submissions relate to his ACB claim after July 24, 2018. As such, I find that the applicant has not met his onus to establish reasonable grounds for an extension under section 7 of the LAT Act with respect to pre-104 week ACBs. I decline to exercise my discretion to extend the limitation period.
Post-104 week ACBs
26I find that the applicant is not statute-barred from proceeding with his claim for post-104-week ACBs. I agree with the applicant that the two-year limitation period stipulated in s. 56 of the Schedule did not expire.
27I am not persuaded by the respondent’s argument that the doctrine of discoverability is not applicable in the present case. The respondent submits that since the applicant was found to be CAT on April 28, 2018, the applicant was eligible for and aware of his claim to post-104 week ACBs as of April 28, 2018. The respondent further submits that once it provided an unequivocal denial on July 24, 2018, the limitation period began, without interruption. The respondent argues that there is nothing in Tomec that states that a stay or an appeal would extend a limitation period.
28While I agree with the respondent that the Court of Appeal in Tomec does not address the issue of a stay or an appeal, the Court did find that an applicant first had to be eligible for the benefit in question in order for a denial to be of any effect. As stated in Tomec, a hard limitation period “puts the appellant in an impossible situation, where the time for claiming a benefit commences when she is ineligible to make such a claim.” The Court further held that
The limitation period contained in those sections is subject to the rule of discoverability because it is directly tied to the cause of action that an insured can assert when denied benefits.
29In the present matter, the applicant was not eligible to make a claim for post-104 week ACBs and was unable to assert a cause of action for the specified benefit, during the period of the stay and dismissal of his CAT designation. I agree with the applicant that the Director’s Delegate’s letter of July 5, 2018, expressly stated that he was “granting a stay of the entire order.” In my view, this would include the portion of the order which related to the CAT designation. As such, the applicant was ineligible to make a claim for post-104 week ACBs, which were dependent on his CAT designation, during the period of the stay.
30This period of ineligibility continued on April 12, 2019, when the respondent’s appeal was permitted and the Director’s Delegate dismissed the applicant’s accident benefits claim and the CAT designation. It was only on January 28, 2022 when the Ontario Divisional Court quashed the April 12, 2019 decision, that the applicant’s CAT designation was restored. As such, I agree with the applicant that he was ineligible to assert his claim to post-104 week ACBs from July 5, 2018 to January 28, 2022. Given this ineligibility, I find that the rule of discoverability as delineated in Tomec is directly applicable, as it is linked to the applicant’s inability to assert his cause of action.
31For these reasons I follow the binding direction provided by the Court of Appeal in Tomec that the rule of discoverability applies. The applicant is not outside of the two-year limitation period and is not statute-barred under s. 56.
32As I have determined that the application was filed within the limitation period, I find it unnecessary to conduct an analysis in relation to s. 7 of the LAT Act.
CONCLUSION AND ORDER
33I find that:
i. The applicant is statute-barred from proceeding with his claim for pre-104 week attendant care benefits pursuant to s. 56 of the Schedule.
ii. The applicant may proceed to the substantive hearing with his claim for post-104 week attendant care benefits
Released: February 5, 2024
Ulana Pahuta
Adjudicator