PRELIMINARY ISSUE HEARING DECISION AND ORDER
Licence Appeal Tribunal File Number: 23-009696/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:
Stephen Gomes
Applicant
and
Allstate Insurance Company of Canada
Respondent
ADJUDICATOR:
Tanjoyt Deol
APPEARANCES:
For the Applicant:
Zeitoon Vaezzadeh, Counsel
For the Respondent:
Joseph Hogan, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Stephen Gomes, the applicant, was involved in a motor vehicle accident on September 16, 2018, 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 certain benefits by the respondent, Allstate Insurance Company of Canada (“Allstate”), 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:
a) Is the applicant barred from proceeding to a hearing for the income replacement benefit (“IRB”) claimed in this application because the applicant failed to dispute the denial within the two-year limitation period?
RESULT
3The applicant is barred from proceeding with his application.
ANALYSIS
Background
4The applicant was involved in an accident on September 16, 2018. He did not immediately return to work and received IRB. On April 23, 2019, the applicant’s legal representative advised Allstate that the applicant had returned to work. On the same day, Allstate sent an Explanation of Benefits (“EOB”), which advised the applicant that his ongoing entitlement to IRB was terminated. Subsequently, the applicant worked at various places. On October 24, 2022, the applicant took time off work until March of 2023 due to a surgery for his left shoulder.
5The applicant filed an application with the Tribunal on August 16, 2023.
Parties’ Positions
6Allstate submits that the applicant failed to bring his application within the two-year limitation period stipulated in s. 56 of the Schedule. It argues that it sent an EOB on April 23, 2019, which advised the applicant that he was no longer eligible to receive IRB. The respondent contends that s. 56 of the Schedule is clear and that as the applicant did not dispute the denial within the two-year limitation period, he is statute barred from pursuing his IRB claim. Allstate further argues that even considering the suspension of the limitation period during the COVID-19 pandemic, which extended the limitation for this denial to October 23, 2021, the applicant still did not meet this deadline.
7The applicant did not file any submissions or evidence in support of his case.
Law
8Section 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.
9However, in order for the provision under s. 56 to be triggered, the respondent must have provided a proper notice of denial, in accordance with the principles set out in Smith v. Co-operators General Insurance Co, (“Smith”) 2002 SCC 30. Pursuant 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.
10Section 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.
11The onus is on the applicant to establish reasonable grounds for an extension under section 7 of the LAT Act.
The respondent’s denial notice was valid
12Upon review of the April 23, 2019, correspondence, I find that Allstate provided a valid denial of the applicant’s IRB claim. The respondent provided a valid “other” reason for the denial pursuant to s. 37, and this was conveyed in a clear and straightforward manner. The EOB clearly advised the applicant that he was no longer eligible for IRB as his legal representative advised that he had returned to work. Moreover, the EOB provided the applicant with information on how to dispute the denial, including the relevant time limits that govern the process (i.e., that the applicant has two years to dispute the denial). 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 denial at issue. As such, I find that the EOB dated April 23, 2019, was a clear and unequivocal denial.
13Also, the law is settled that: when an insurer terminates IRB, it is not required to provide a “medical reason” under s. 37 of the Schedule; returning to work is a valid “other” reason for the stoppage of benefits (see: Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78).
14Having determined that Allstate’s denial was valid and that the applicant failed to bring his application within the two-year limitation period stipulated in s. 56, I must still consider whether an extension of the limitation period should be granted pursuant to s. 7 of the LAT Act.
Section 7 of the LAT Act
15The applicant did not request an extension of the limitation period, as he filed no submissions or evidence. As a result, the applicant has not met his onus to establish reasonable grounds for an extension under section 7 of the LAT Act. I decline to exercise my discretion to extend the limitation period.
CONCLUSION AND ORDER
16I find that the applicant is statute-barred from proceeding with his application pursuant to s. 56 of the Schedule.
17The application is dismissed, and the substantive hearing is vacated.
Released: March 18, 2024
Tanjoyt Deol
Adjudicator```