Deeq Abdi v. Belair Direct Insurance Company, 2024 CanLII 13099

Licence Appeal Tribunal File Number: 23-005786/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:

Deeq Abdi

Applicant

and

Belair Direct Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: No submissions were filed

For the Respondent: Kyle McNerney, Counsel

HEARD: By way of written submissions

OVERVIEW

1Deeq Abdi, the applicant, was involved in a motor vehicle accident on May 11, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant received payment from the respondent, Belair Direct Insurance Company, for certain accident benefits. However, the respondent subsequently determined that the applicant was not entitled to accident benefits and requested repayment of monies paid. The applicant 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 the insurer’s request for repayment of medical benefits, as he failed to dispute the notice of repayment within the 2-year limitation period?

RESULT

3The applicant may proceed with his application.

PROCEDURAL ISSUE

The respondent’s request to dismiss the application as abandoned is denied

4The Case Conference Report and Order (“CCRO”) dated January 16, 2024 set out timelines for the parties’ submissions for this preliminary issue hearing. The respondent filed its initial submissions on January 25, 2024 and reply submissions on February 6, 2024 in accordance with the CCRO. The applicant did not file any submissions for this preliminary issue hearing.

5Rather, the applicant sent an email to the Tribunal on January 29, 2024 stating that his lawyer had resigned “at the last minute” and requesting a 30-day extension to permit him to find a new legal representative. It does not appear that the applicant received a response from the Tribunal, nor did the applicant submit a Notice of Motion to request the extension. I note that the Tribunal received a Removal of Representative form from the applicant’s counsel on January 25, 2024.

6In its reply submissions, the respondent submits that the applicant’s Tribunal application should be considered abandoned, due to his failure to file submissions in accordance with the CCRO. It cites Tribunal decision Mohamed v Aviva Insurance Company, 2022 CanLII 124612 (ONLAT), in support of its claim that where an applicant fails to file any submissions for a written hearing, it is deemed abandoned and the application should be dismissed.

7I am not persuaded by the respondent’s argument. In the decision cited by the respondent, Mohamed, the applicant failed to provide submissions for a substantive issue written hearing. In that case, the applicant had the burden of proving that his injuries were not minor, and that the benefits in dispute were reasonable and necessary. By not filing any submissions, the adjudicator held that the applicant had not met his burden of proof.

8However, as specified in the CCRO, the present hearing was not set to address any substantive issues in dispute. Rather, it is a preliminary issue hearing requested by the respondent. The substantive issue hearing is set to be heard on August 23, 2024, depending on the outcome of this preliminary hearing. As such, the burden of proof for this preliminary issue hearing rests with the respondent, not the applicant. Regardless whether the applicant filed submissions for this hearing, the respondent is still required to meet its onus to prove that the applicant’s underlying application should be barred. As such, I decline the respondent’s request to find that the application has been abandoned due to the applicant’s failure to file submissions.

9With respect to the applicant’s email request for a 30-day extension, I find that given my findings in this preliminary hearing, such an extension is no longer necessary. As detailed below, this matter will be proceeding to the substantive issue hearing on August 23, 2024. As such, the applicant has ample time to retain new legal representation.

ANALYSIS

Background

10The applicant was involved in an accident on May 11, 2017 and submitted an Application for Accident Benefits to the respondent on May 24, 2017. The respondent began to adjust the applicant’s claim, and paid $3,806.09 in medical benefits. Upon investigation, the respondent determined that the accident did not occur as alleged, but rather, it concluded that no accident had in fact occurred.

11By way of letter dated May 15, 2021, the respondent informed the applicant that it had determined that the applicant was not involved in an accident as defined in s. 3(1) of the Schedule, and that pursuant to s. 53 of the Schedule, the applicant had wilfully misrepresented material facts with respect to his application. It further informed the applicant that pursuant to s. 53(a) of the Schedule, the applicant’s claim for accident benefits was denied, and it requested re-payment of all monies paid to date ($3,806.09), pursuant to s. 52 of the Schedule.

12The applicant did not respond to the respondent’s request for repayment. But instead, on May 18, 2023, filed an application with the Tribunal. The only issue in dispute as listed in the application, was the $3,806.09 in “medical services”. It does not appear that the applicant was disputing any current denial of benefits from the respondent. Rather, it appears that he brought the application forward to dispute the respondent’s request for repayment.

Law

13Section 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.

14Section 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.

The s. 56 limitation period is not applicable in the present case

15I find that the respondent has not met its onus to prove that the applicant should be barred from proceeding with his application pursuant to s. 56 of the Schedule. The respondent submits that its May 15, 2021 correspondence was the “refusal to pay” as specified in s. 56, which triggered the two-year limitation period. Given that the applicant filed his Tribunal application on May 18, 2023, the respondent argues that the applicant falls outside of the two-year time limit, and should be barred from proceeding with his application.

16However, I am not persuaded by the respondent’s position that the May 15, 2021 correspondence was a “refusal to pay” a benefit, triggering the s. 56 limitation period. At the time of the letter, the respondent had already paid the benefit to the applicant. Rather, in its correspondence the respondent expressly referenced s. 53 and s. 52 of the Schedule, stating that it had concluded that the applicant had wilfully misrepresented material facts relating to the accident and requested repayment of the $3,806.09 already paid. As such, in my view, the correspondence was clearly a notice of repayment and not a refusal to pay or denial notice.

17In its submissions for this preliminary issue hearing, the respondent requests that I dismiss the applicant’s application and order repayment of all monies paid to the applicant. However, the issue of the s. 52 repayment request by the respondent is not the issue being heard at this preliminary issue hearing. Rather, it was set down to be heard at the August 23, 2024 substantive written hearing. The only issue before me today is whether the applicant should be barred with proceeding with his application to dispute the repayment request pursuant to s. 56 of the Schedule. I find that the respondent has not met its onus to prove that the applicant should be barred pursuant to s. 56.

18For the foregoing reasons I find that the applicant is not statute-barred from proceeding with his application. The issue of the s. 52 repayment request will be heard at the substantive hearing.

CONCLUSION AND ORDER

19I find that the applicant may proceed with his application before the Tribunal.