24-006903/AABS-PI
Licence Appeal Tribunal File Number: 24-006903/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:
Scholastica Mariyanayagam
Applicant
and
Zenith Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Tal Eshel, Counsel
For the Respondent:
Nicole A. Dowling, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Scholastica Mariyanayagam (the “applicant”) was involved in an accident on November 16, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Zenith Insurance Company (the “respondent”) 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:
i. Is the applicant barred from proceeding to a hearing for all of the benefits claimed in her application because she failed to dispute their denial within the 2-year limitation period?
RESULT
3The applicant is statute barred from proceeding with her application pursuant to section 56 of the Schedule.
PROCEDURAL ISSUE
4The applicant did not file any submissions for the preliminary issue hearing. The case conference report and order identified the preliminary issue, indicates that it was to be heard prior to the substantive issues, and set out a timetable for the parties’ submissions. I am satisfied that the applicant received notice of this preliminary issue hearing, given that the representative was present at the case conference, and the CCRO was sent to her representative at the address on file. Despite this order no submissions were filed on behalf of the applicant.
ANALYSIS
5The benefits in dispute include income replacement benefits, and two treatment plans. The respondent submits that there was a clear and unequivocal denial of the benefits in dispute on April 20, 2021 (at the latest), triggering the limitation period, and the applicant did not appeal the denial within two years.
Law
6The limitation period for accident benefits claims is set out in section 56 of the Schedule. It states that applications to dispute the denial of a benefit shall be commenced within two years after the insurer’s refusal to pay the benefit.
7In order for section 56 to be triggered, the respondent must have provided a valid notice of denial in accordance with the principles set out in Smith v. Co-operators General Insurance Company, 2002 SCC 30 (“Smith”). According to Smith, the refusal to pay the benefit must contain straightforward and clear language, it must be directed towards an unsophisticated person, it must outline the dispute resolution process and the relevant time limits that govern the process, and it must provide valid or other reasons for the denial.
8Further, pursuant to T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) (“T.F.”) and Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 (“Hedley”), the notice must provide a valid medical and any other reason for the denial.
The respondent’s denial notices are compliant with the Schedule
The denial of the income replacement benefits is valid
9I find that the letter dated April 20, 2021 is a valid denial of the income replacement benefits, triggering the limitation period. It identifies the benefit in dispute, and indicates that she was not eligible for the benefit because she did not suffer from a substantial inability to perform the essential tasks of her pre-accident employment, pursuant to the findings of the insurer’s examinations.
10The denial was sufficiently clear, provided valid reasons for the denial, outlined the dispute resolution process, and the two-year time limit to dispute the decision. I find that the limitation period for the income replacement benefit was triggered on April 20, 2021 by a valid denial.
The denial of the treatment plan dated September 26, 2020 is valid
11The treatment plan dated September 26, 2020 for chiropractic services was denied initially by the respondent by way of correspondence dated November 10, 2020. Insurer’s examinations were completed, and a further denial notice was sent to the applicant dated April 20, 2021.
12I find that the letter dated April 20, 2021, was a valid denial notice. It identifies the disputed plan, provides excerpts from the insurer’s examinations, and concludes that additional facility-based therapy was not reasonable or necessary given the amount of therapy received to date and the time elapsed. It is sufficiently clear, provides valid reasons for the denial, outlines the dispute resolution process, and the relevant time limits that govern the process.
13The limitation period for the plan for chiropractic services was triggered on April 20, 2021 by a valid denial.
The denial of the treatment plan dated October 23, 2020 is valid
14The treatment plan dated October 23, 2020 for an in-home occupational therapy assessment was denied by the respondent by way of correspondence dated November 10, 2020. Following the completion of the insurer’s examinations, the treatment plan was denied by letter dated April 20, 2021.
15I find that the letter dated April 20, 2021, was a valid denial notice. It identifies the disputed plan, provides excerpts from the insurer’s examinations, and concludes that that the proposed in-home assessment is not reasonable and necessary. It is sufficiently clear, provides valid reasons for the denial, outlines the dispute resolution process, and the relevant time limits that govern the process.
16The limitation period for the plan for an in-home occupational therapy assessment was triggered on April 20, 2021 by a valid denial.
The application was not filed within the limitation period
17I have found valid denials of all of the benefits in dispute effective April 20, 2021 triggering the limitation periods. The limitation period to file her appeal of all of the benefits in dispute expired on April 20, 2023.
18The application to the Tribunal was filed on May 31, 2024. Therefore, the applicant did not file her application for any of the benefits in dispute within the limitation period.
19Pursuant to section 7 the Licence Appeal Tribunal Act, 1999 the Tribunal has statutory discretion to extend the two-year limitation period based on four factors: a bona fide intention to appeal within the limitation period; the length of the delay; prejudice to the other party; and the merits of the appeal (see: Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997; Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492. In the absence of any submissions, the applicant has not discharged her onus to establish why I should exercise my discretion to extend the limitation period. I have no basis to find that any of the factors weigh in her favour in order to extend the limitation period. Therefore, I decline to do so.
ORDER
20The applicant is statute barred from proceeding with her application pursuant to section 56 as it was commenced more than two years after valid denials from the respondent.
21The application is dismissed.
22The Tribunal shall vacate any date that has been scheduled for a substantive issue hearing. The Tribunal file will be closed.
Released: December 3, 2024
Kate Grieves
Adjudicator