Licence Appeal Tribunal File Number: 23-006906/AABS-PI
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:
Dale Isaac
Applicant
and
Aviva Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR: Tanjoyt Deol
APPEARANCES:
For the Applicant: Doina Marinescu, Paralegal
For the Respondent: Jonathan Charland, Counsel
HEARD: By way of written submissions
OVERVIEW
1Dale Isaac, the applicant, was involved in a motor vehicle accident on September 25, 2020, 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 (“Aviva”) 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 all of the benefits claimed in his application because the applicant failed to dispute their denial within the two-year limitation period?
RESULT
3The applicant may proceed to the substantive hearing with the remaining medical benefits in dispute as outlined in the Case Conference Report and Order (“CCRO”), released on January 31, 2024.
4The applicant is barred from proceeding with his claim for Non-Earner Benefits (“NEB”) for the time period of October 22, 2020, to September 24, 2022.
ANALYSIS
Background
5On June 13, 2023, the applicant filed his Application with the Tribunal, claiming entitlement to NEB and various medical benefits.
6There is a dispute between the parties over whether the applicant disputed the following denials within the two-year limitation period:
i. NEB in the amount of $185.00 per week from October 22, 2020, to September 24, 2022;
ii. A Treatment Plan/OCF-18 (“OCF-18”) in the amount of $2,486.00 for an attendant care assessment;
iii. An OCF-18 in the amount of $2,034.00 for a social work assessment;
iv. An OCF-18 in the amount of $2,486.00 for a cognitive assessment;
v. An OCF-18 in the amount of $2,486.00 for a chronic pain assessment;
vi. An OCF-18 in the amount of $850.00 for a nutritional assessment;
vii. An OCF-18 in the amount of $1,300.00 for yoga services;
viii. An OCF-18 in the amount of $4,089.95 for psychological services;
ix. An OCF-18 in the amount of $1,300.00 for yoga services; and
x. An OCF-18 in the amount of $1,237.28 for chiropractic services.
Parties’ position
7The respondent submits that the applicant is time barred pursuant to s. 56 of the Schedule as he failed to dispute any of the denials within the two-year limitation period, as each denial was before June 13, 2021. Furthermore, the respondent argues that the fact that it obtained an addendum report and again advised the applicant that it refused to pay NEB does not equate to restarting the limitation period.
8The applicant submits that none of the denial letters were provided to him with respect to the benefits in dispute. As a result, his position is that the denial for his medical benefits was June 12, 2023, the date which he submitted his application to the Tribunal. With respect to the NEB denial, the applicant argues that the respondent’s letter dated April 22, 2022, which enclosed addendum reports and a s. 44 in person report, is new evidence. However, the applicant provides no clarification of what relief he is seeking with respect to the new evidence.
9As an aside, the applicant included evidence of settlement discussions in their document brief, which upon my recognition of their nature, I did not review further nor did such evidence have any impact on this decision. This Tribunal is statutorily prohibited under s. 15(2)(a) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, from admitting any evidence that is protected by privilege. Evidence of settlement discussions is presumptively privileged, which may be overridden in certain circumstance such as (but not limited to) waiver of privilege by all parties to the settlement discussions. There was no indication that such waiver existed, and therefore I declined to admit the privileged documents.
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.
11The onus is on the respondent to show on a balance of probabilities that the applicant missed the limitation period. This includes proving that the two-year limitation period started.
12Further, in order for the provision under section 56 to be triggered, I must determine whether the respondent’s notice of denial was proper in accordance with the principles set out in Smith v. Co-operators General Insurance Co, 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.
13The Supreme Court’s direction in Smith clearly recognizes that greater accessibility of an insured person to the informational content of the denial notice is of paramount importance and must necessarily account for the variety of persons and backgrounds who may make claims for accident benefits. Accordingly, Smith requires a denial notice to be as specific and accessible as possible to ensure that there is no ambiguity in what a notice means when read by an unsophisticated person.
14If the respondent establishes that the applicant missed the limitation period, then the onus is on the applicant to establish reasonable grounds for extension under Section 7 of the Licence Appeal Tribunal Act, 1999 (“LAT Act”). Section 7 allows this 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 applicant is not barred from proceeding with the medical benefits in dispute
15The applicant is not barred by the limitation period under s. 56 of the Schedule, with respect to proceeding with the medical benefits in dispute as outlined in the CCRO.
16Pursuant to s. 56 of the Schedule, an application to the Tribunal is required to be commenced within two years after the insurer’s refusal to pay the amount claimed. When an insurer refuses to pay a benefit, it is required to give the insured person written notice under s. 54 of the Schedule of his right to dispute the refusal.
17Section 64 of the Schedule lists the methods that an insurer may use to deliver the notice and when the notice is deemed to have been delivered. This means that the refusal referred to in s. 56 of the Schedule that starts the limitation period must be in writing and, for the insured to be notified, the insured must have received the notice or be deemed to have received it under any one of the methods for delivering a notice listed under s. 64 of the Schedule.
18While the respondent submits that all the denials for the medical benefits were clearly and unequivocally denied by various denial letters, there is no reference to how these letters were sent to the applicant or his legal representative. The respondent also takes the position that these medical benefits were denied on January 6, 2021, February 19, 2021, March 8, 2021, March 23, 2021, April 7, 2021, April 14, 2021, and April 20, 2021.
19The applicant submits that none of the denial letters as indicated in the respondent’s submissions were provided to him. Furthermore, the applicant’s position is that the onus is on the respondent to show that the limitation period has expired.
20In response, the respondent argues that it properly delivered each of the denial letters at issue, and that there is no evidence to suggest otherwise. Moreover, the respondent submits that the applicant has raised a “bald allegation” that the denial letters were not provided to him, and this is the first time he has alleged this.
21I find that the limitation period starts when the applicant received or is deemed to have received the insurer’s refusal to pay the benefits, which is the denial letter. In this case there was no evidence of how the denials were sent, when the applicant received any of the denials or any evidence to support a determination that any of them were actually or deemed to have been received by the applicant on a particular date. The only evidence before me is that the denial letters are addressed to the applicant’s address as listed on his application and was carbon copied to GSK Personal Injury Law, his legal representative. I would have expected a registered letter receipt, email confirmation, fax confirmation, or even an adjuster’s note indicating how the letters were sent to the applicant or his legal representative, which was not done here. The denial letters before me do not indicate which method of service they were sent.
22I am alive to the respondent’s position that the applicant never raised this issue prior to his submissions, and that there is no evidence that he moved or was not receiving mail at the address noted in the letters. However, the respondent still has not provided evidence or clarification of how the denial letters were sent. Nor has the respondent provided clarification of whether the letters were mailed via regular or registered mail, which it had an opportunity to do so in its reply submissions. Moreover, I agree with the applicant that the onus is on the respondent to show that the applicant missed the limitation period, which in my interpretation, also means that the respondent should provide evidence of how the denial letters were sent, especially when the applicant raises concerns that he did not receive them. This was not done here.
23Against the respondent’s submission, I find that this is also not the first time the applicant raised this issue. Upon review of the application filed with this Tribunal, I note that the applicant also checked off the “no” box to indicate that no denials were provided in writing for each of the medical benefits in dispute. I also note that at the CCRO, the respondent was ordered to produce either confirmation of faxes or emails for all the denial documents for the issues in dispute. Thus, I am not persuaded that the respondent was not aware that the applicant would raise this issue until his submissions, as this was clearly his position from the onset of the application to the Tribunal.
24The respondent has also not produced evidence of how the denial letters were sent to the applicant’s legal representative. While the respondent argued that it sent the letters to the applicant’s legal representative, and therefore the applicant received them, the respondent has not produced evidence of how the letters were sent. As noted above, the respondent has not produced evidence of which method of service the denial letters were sent.
25I also take note that the applicant produced an email from the respondent’s representative dated January 29, 2024. This email from the respondent’s representative indicates that in accordance with the CCRO, he enclosed two email correspondences that were sent to the applicant’s legal representative’s office. Both emails pertain to the NEB denial. For the remaining medical benefits in dispute, it appears that the respondent did not provide emails/fax confirmations as per the CCRO, nor did it at the bare minimum clarify in its submissions on how these denials were sent to the legal representative for the applicant.
26In my view, even if the applicant had raised this issue for the first time in his submissions, the respondent still did not provide clarification and evidence of how these denial letters were sent to the applicant or his legal representative. I cannot infer that the letters were delivered by either regular or registered mail, simply because the respondent submitted that there was no evidence that the applicant had moved or was not receiving mail. The respondent had an opportunity in its reply submissions to provide clarification and evidence of how the denial letters were sent but did not do so.
27To sum up, I am unable to find that the limitation period started on the date the denial letters are dated, as I have not been provided with evidence of how the letters were delivered. Accordingly, the respondent has not satisfied its onus to prove that the limitation period started from January to April 2021 for the various medical benefits. This means that the applicant is not barred by the limitation period under s. 56 of the Schedule from proceeding with his claim for these medical benefits.
The respondent’s NEB denial notice was valid
28I find that the denial was sent to the applicant via his legal representative and the notice was valid.
29First, the respondent submits that it sent a copy of the denial letter and insurer’s examination (“IE”) report via email both to the applicant and his representative on February 18, 2021. Second, the respondent submits that it provided a clear and unequivocal denial of the applicant’s NEB claim on February 18, 2021. Finally, the respondent submits that as the applicant disputed the denial on June 13, 2023, which is beyond the two-year limitation period pursuant to s. 56, he is statute barred from pursuing his NEB claim.
30In reply, the applicant submits that the respondent did not provide him with the denial letter. Next, the applicant appears to be suggesting that the denial letters were not properly submitted, because the respondent sent them by email to two former law clerks, instead of the official law firm email address, by mail or fax. Lastly, the applicant takes the position that a subsequent letter, dated April 22, 2022, which enclosed a copy of a s. 44 in person report and addendum reports is to be considered as new evidence.
31First, I find that the respondent sent the denial letter, dated February 18, 2021, by email to the applicant’s legal representative’s office, and there is no evidence before me to dispute that the legal representative did not receive this denial letter. I disagree with the respondent that the denial letter was sent by email to the applicant, as the email asked the applicant’s legal representative’s office to forward the email to the applicant’s attention. However, I am persuaded by the authority of 18-001145 v. Economical Insurance Company, 2018 CanLII 142935 (ON LAT) as cited by the respondent. I agree with the Tribunal’s approach in that authority, that the courts have held that once a legal representative of the applicant has knowledge of the denial letter, then that knowledge is imputed to the applicant see: Parmar v. Teachers Life 2017 ONSC 2329, para. 39 and 42.
32Here, the applicant has not produced evidence that the applicant’s legal representative did not receive the emails, simply because they were sent to former law clerks. My finding is further supported by the fact that in the application to this Tribunal, the applicant indicated that the denial date for NEB started on April 22, 2022, which as he argues was sent to a former law clerk. If the applicant’s legal representative did not receive the emails because they were sent to former clerks, it raises the question of how the application which was completed by the legal representative indicated that a denial was provided in writing, and the benefit was denied on April 22, 2022. This contrasts with the denial letters with respect to the medical benefits, as the respondent has advised that the denial for NEB was sent by email and enclosed evidence of same.
33Accordingly, I am not persuaded by the applicant’s position, and find that the denial letter was sent and received on February 18, 2021.
34Now turning to whether the denial, dated February 18, 2021, was proper and in accordance with the principles set out in Smith, I find that it was. I note that the applicant did not raise any issues with respect to the validity of the denial letter. In any event, I find that the denial letter, dated February 18, 2021, is quite detailed. Reasons for the denial are provided. References have been made to the applicant’s conditions. The benefit in dispute has been properly identified. I find that the reasons were clear and sufficient to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. As such, I find that this was a clear and unequivocal denial.
35The denial letter, dated February 18, 2021, also advised the applicant that he had two years to dispute the denial, and the process for dispute resolution, which was in accordance with Smith.
36Therefore, the February 18, 2021, denial was a valid denial, however, since the applicant argues that the subsequent letter, dated April 22, 2022, is new evidence, I will now turn to this point. I am not persuaded by the applicant’s position. The respondent has an ongoing duty to adjust the file, which includes conducting further s. 44 in person report and addendum reports. Moreover, the April 22, 2022, denial letter referenced the February 18, 2021, denial, and states that the denial is being maintained.
37I further acknowledge the applicant’s position that the letter, dated April 22, 2022, also referred to the two-year limitation period to dispute a denial. In my view, there is nothing in the correspondence that would lead a reasonable person to believe that the respondent was reconsidering its position and no longer relying on the February 18, 2021, denial, as the letter clearly stated this.
38I am bound by Smith, where it was noted that, once a clear and unequivocal denial letter is sent, the limitation period begins to run.
39As such, the February 18, 2021, denial is a valid denial. I find that the application was not filed within the limitation period, as it was filed on June 13, 2023. The next stage of my analysis will consider whether the Tribunal should invoke its discretion under section 7 of the LAT Act.
Section 7 of the LAT Act
40The applicant has not met his onus to establish reasonable grounds for an extension under section 7 of the LAT Act. As such, I decline to exercise my discretion to extend the limitation period with respect to his NEB claim.
41Instead of providing submissions on why there are reasonable grounds for an extension, the applicant cited s. 7, and referred to the authority of Mohamud v. Certas Home and Auto Insurance Company (“Mohamud”), 2020 CanLII 101752 (ON LAT).
42The respondent submits that the applicant failed to make any substantive arguments or provide any evidence whatsoever with respect to s. 7 of the LAT Act. As such, its position, is that the applicant has not demonstrated an extension of the limitation period is justified.
43As the applicant made no specific submissions or provided evidence regarding why the Tribunal should exercise its discretion pursuant to s. 7 of the LAT Act, he has not met his onus. Moreover, the authority of Mohamud, does not assist the applicant, as the Tribunal determined that it did not have jurisdiction to extend the limitation period under s. 56.
44In conclusion, the applicant has not met his onus, and therefore I decline to exercise my discretion pursuant to s. 7 of the LAT Act.
CONCLUSION AND ORDER
45I find that:
i. The applicant may proceed to the substantive hearing with his claim for all the medical benefits in dispute as outlined in the CCRO;
ii. The applicant is statute barred from proceeding with his NEB claim for the time period of October 22, 2020, to September 24, 2022.
Released: March 12, 2024
Tanjoyt Deol
Adjudicator