Melissa Greason v. The Co-Operators General Insurance Company, 2024 CanLII 33190

23-009400/AABS-PI

Licence Appeal Tribunal File Number: 23-009400/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:

Melissa Greason

Applicant

and

The Co-Operators General Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Dina D’Andrea, Counsel

For the Respondent:

Julianne Brimfield, Counsel

Ethan Edwards, Counsel

Heard:

By Way of Written Submissions

OVERVIEW

1Melissa Greason (“the applicant”) was involved in an incident on April 11, 2019 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 The Co-Operators General 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 with her claim for income replacement benefits because she failed to dispute their denial within the 2-year limitation period?

RESULT

3The applicant is statute barred from proceeding with her claim for income replacement benefits pursuant to section 56 of the Schedule.

ANALYSIS

4The 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.

5The respondent submits that there was a clear and unequivocal denial of the non-earner benefits on June 11, 2021, triggering the limitation period, and the applicant did not appeal the denial within two years. The application was filed 59 days late, on August 9, 2023.

6The applicant appears to concede that the denial letter was compliant with the Schedule, and that she did not file her application to the Tribunal within the limitation period. The applicant submits that the Tribunal should use its discretion to extend the time for filing the appeal pursuant to section 7 of the Licence Appeal Tribunal Act (“LAT Act”) which states:

Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of the Tribunal under section 11 or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,

(a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and

(b) give the directions that it considers proper as a result of extending the time.

7The Divisional Court set out the factors to consider in making this determination in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (“Manuel”):

1. The existence of a bona fide intention to appeal within the appeal period;
2. The length of the delay;
3. Prejudice to the other party; and
4. The merits of the appeal.

8The four Manuel factors are not strict elements of a test that must each be met in order to grant an extension of time, but rather they act as a guide to determining the just decision in each case. Statutory limitation periods are to be given effect except in circumstances where a strict application of the time limit would work an injustice. The onus is on the applicant to satisfy me that the justice of the case favours an extension of time to file the application.

Background

9Following the accident, the applicant was unable to return to work, and was paid income replacement benefits (“IRBs”) for the period from April 11, 2019 to April 7, 2021, totalling $45,056.00.

10Following multidisciplinary assessments in the spring of 2021, the respondent determined that the applicant was not entitled to IRBs more than 104-weeks post accident. By letter dated June 11, 2021, the applicant was provided copies of the assessment reports, and was notified that she did not qualify for post-104 IRBs based on the opinion of the assessors. The denial letter is clear and unequivocal and contained information regarding the applicant’s right to dispute the denial, as required under section 54 of the Schedule.

11The denial letter was emailed to both the applicant and her legal representative’s office. The representative specifically acknowledged receipt of the denial letter through a subsequent email exchange with the respondent.

12The applicant subsequently submitted an updated disability certificate and a letter from her family doctor. By letter dated November 16, 2021, the respondent acknowledged receipt of the documents submitted. The insurer referenced the denial letter of June 11, 2021 and confirmed that the updated documentation did not alter the respondent’s prior determination that the applicant did not meet the post-104 week test for IRBs.

13In March 2023, the respondent arranged for a further assessment with Dr. Bartol, orthopedic surgeon, who completed the original assessment, following receipt of the letter from the family doctor and other updated medical information. Dr. Bartol reviewed the updated documentation and concluded that his opinion was unchanged.

14By letter dated April 13, 2023 the respondent confirmed that the prior decision to deny post-104 IRBs remained unchanged, and referenced the prior denial letter of June 11, 2021.

15On June 22, 2023 the applicant sent an email to the insurer with a copy of a functional ability evaluation report, dated June 21, 2023 and requested a reconsideration of the denial of post-104 IRBs. The respondent replied by email on June 26, 2023, indicating that the report had been reviewed, but the respondent’s position remained unchanged.

16The application to the Tribunal was filed on August 9, 2023, which was two years, one month and 29 days after the June 11, 2021 denial letter, or 59 days past the expiration of the two-year limitation date.

1. Bona fide intention to appeal within the appeal period

17The applicant submits that she was under the honest but mistaken belief that the limitation period did not begin to run until the insurer’s correspondence on April 13, 2023, delivered after the insurer had reviewed new evidence. In that letter, the respondent indicated that its opinion was unchanged. After she provided a further report on June 22, 2023, the applicant requested that the respondent reconsider its denial. Following the insurer’s response on June 26, 2023, she filed her application to the Tribunal.

18The applicant has not pointed to any evidence to support the assertion that she had a reasonable belief that the limitation period did not begin to run until April 13, 2023. The applicant had been receiving regular IRB payments until they were suspended due to outstanding documentation in early 2021. The denial letter dated June 11, 2021 was clear and unequivocal in denying entitlement to IRBs and noted the two year limitation to dispute the denial. She did not receive any further regular IRB payments after the June 2021 denial. It is difficult to accept the submission that she did not know that IRB had been denied or that the limitation period had begun to run following that denial. The applicant was represented by experienced counsel at the time, and the representative acknowledged receipt of the June 2021 denial letter.

19The subsequent November 2021 letter specifically refers to the June 2021 denial letter, and to see the attached document “for important information regarding your right to dispute our determinations”. That documentation again outlined the two year limitation in bold text, and that if she failed to apply to the Tribunal within the two year limitation she would lose the right to dispute the determination.

20I am unconvinced that the applicant had an honest but mistaken belief that the limitation period had not yet begun to run when benefits were terminated in June 2021.

21The applicant has not pointed to any steps taken to commence this dispute within the limitation period. The two-year limitation period begins to run following an insurer’s clear and straightforward denial of a benefit, which contains the required medical and other reasons, and which informs the applicant of the dispute resolution process under the Insurance Act. The Tribunal has repeatedly affirmed that subsequent correspondence affirming the denial of a benefit does not restart a limitation period. Subsequent requests for more information or notices of IEs do not detract form a valid denial or re-start the limitation period. The respondent considered the updated documentation that was provided after its denial of the benefits, but it maintained its prior denial and repeatedly referenced the initial denial in its subsequent correspondence.

2. The length of the delay

22The applicant indicates in her submissions that the length of the delay was 59 calendar days but provides no further submissions. The applicant references case law where the delay in commencing the dispute was a few days. There is no explanation for the length of the delay in this case.

23The Tribunal has refused requests to extend a limitation period by even short periods. For example, in S.S. v. Allstate Canada, 2019 CanLII 76842 (ON LAT), Adjudicator Norris refused the applicant’s request to extend a limitation period by five days. The applicant argued that the delay was short, but Adjudicator Norris found that the applicant had not provided a reasonable explanation for the delay. He noted that there were no submissions or evidence suggesting the denial was improper, not received by the applicant, or any other reason as to why the applicant was not aware of the denial.

24In this case, while 59 days is not excessive, it is significant, and there is no explanation for the delay. There is no evidence (nor does the applicant suggest) that the denial was improper, not received, unclear, or any other reason for her delay in applying to the Tribunal.

3. Prejudice to the other party

25The applicant submits that there is no evidence that the respondent would suffer any prejudice by allowing the applicant’s claim to proceed. The applicant submits that the respondent already had its IE reports prior to the commencement of the application and the delay was unlikely to have any bearing on the evidence at a hearing – such as an effect on the memories of any witnesses. The applicant submits that she would be severely prejudiced by a bar on her claim for past IRBs and indefinitely into the future.

26Restricting access to dispute resolution on the merits will almost always have a greater impact on an individual than it will on an insurance company. However, the Divisional Court indicated in Manuel that the decision maker is to focus on the prejudice to the other party, in this case, the respondent insurance company.

27There is also the potential for systemic prejudice to insurers if the Tribunal were to consistently take a broad interpretation of that rule making the limitation period outlined in section. 56 essentially meaningless. I agree with the respondent that there is inherent prejudice to a party when they are unable to rely on the Schedule or the limitation period. There is a public interest in the finality of proceedings captured by the limitation period. Section 7 of the LAT Act allows the possibility that in special circumstances, the Tribunal may extend the limitation period. The extension is not granted automatically because it might deny an applicant the right to a hearing.

4. The merits of the appeal

28The applicant submits that there is considerable merit to her appeal. She has not been able to return to work since the accident. She included a functional ability evaluation and an expert report from an orthopaedic surgeon in support of her claim and submits that she has a reasonable chance of success. I am prepared to find that there is some evidence, which if it were accepted, could lead to a finding that she suffers from a complete inability to perform any employment for which she is reasonably suited by education, experience, or training.

29Public interest and legislative intent weigh in favour of giving effect to limitation periods. The applicant has the burden to establish the factors favouring an extension, but she has not directed me to any evidence of special circumstances that would tip the balance of justice in favour of granting the extension. Having considered the evidence before me, I find that the applicant has not met her onus to establish that the justice of the case favours an extension of time to file the application. Accordingly, I decline to use the Tribunal’s discretion to extend the limitation period under section 7 of the LAT Act.

ORDER

30The applicant is statute barred from proceeding with her application for income replacement benefits pursuant to section 56 as it was commenced more than two years after a valid denial from the respondent.

31The application is dismissed.