Rezart Marashi v. Aviva Insurance Company of Canada, 2024 CanLII 43452

23-011798/AABS-PI

Licence Appeal Tribunal File Number: 23-011798/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:

Rezart Marashi

Applicant

and

Aviva Insurance Company of Canada

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Larry Levine, Counsel

For the Respondent:

Kevin Griffiths, Counsel

Heard:

By Way of Written Submissions

OVERVIEW

1Rezart Marashi (“the applicant”) was involved in an incident on April 8, 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 Aviva Insurance Company of Canada (“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 his application because he failed to dispute their denial within the 2-year limitation period?

RESULT

3The applicant is statute barred from proceeding with his application pursuant to section 56 of the Schedule.

ANALYSIS

Background

4The applicant was involved in an accident on April 8, 2019. On October 2, 2023 he filed an application to the Tribunal disputing the denial of the income replacement benefits and three treatment plans.

5The respondent submits that there was a clear and unequivocal denial of all the of the benefits in dispute in 2019 and 2020, triggering the limitation period, and the applicant did not appeal the denial within two years.

6The 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. Despite this order, and multiple attempts by the Tribunal to follow up on the applicant’s submissions, none were filed.

Law

7The 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.

8In 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: see paragraph 14.

9Further, 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. As stated by Executive Chair Lamoureux in T.F., at paragraph 19:

an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires.

10If an insurer’s notice of a refusal to pay a benefit does not satisfy these requirements, it may be determined to be invalid, and fail to trigger the two-year limitation period under s.56 of the Schedule.

The respondent’s denial notices are compliant with the Schedule

The denial of the income replacement benefits is valid

11I find that the explanation of benefits (“EOB”) dated November 23, 2020 is a valid denial, triggering the limitation period. The letter identifies the applicant’s medical conditions based on the conclusions from the insurer’s examinations (“IE”), that he did not suffer a substantial inability to perform the essential tasks of his employment, therefore he is not entitled to receive income replacement benefits.

12The language explained his impairments and why they did not justify entitlement to the disputed benefits. It was sufficiently clear, provided valid reasons for the denial, outlined the dispute resolution process, and the two-year time limit to dispute the decision.

13Following this denial, the respondent received additional medical information and continued to adjust the accident benefits claim. An insurer has a continued obligation to adjust an accident benefits claim, even after a denial of a benefit, but that obligation does not mean that a refusal can only take place once that process is complete, nor does it give rise to a new limitation period.

14The limitation period for the income replacement benefits was triggered on November 23, 2020 by a valid denial.

The denial of the plan for chiropractic services is valid

15I find that the EOB dated October 25, 2019 was a valid denial notice. It identifies the disputed plan, that the IE assessor had determined that he sustained whiplash and strain injuries, that he had sufficient facility-based rehabilitation, and further facility-based rehabilitation was unlikely to add any long-term benefit. The treatment plan was not reasonable or necessary.

16This is a valid notice because it explained the applicant’s medical conditions, and why those conditions did not justify entitlement to the benefit claimed. It is sufficiently clear, provides valid reasons for the denial, outlines the dispute resolution process, and the relevant time limits that govern the process.

17The respondent obtained addendum reports following receipt of additional medical information and a further EOB was provided indicating that its opinion was unchanged. The subsequent denial letter does not restart the limitation period.

18The limitation period for the plan for chiropractic services was triggered on October 25, 2019 by a valid denial.

The denial of the plans for a pain management assessment and chronic pain assessment is valid

19By EOB dated January 29, 2020 the respondent denied both plans and advised that an insurer’s examination was being scheduled. The reasons provided included that diagnostic studies appear to be ordered or repeated without objective clinical documentation for their necessity, and multiple specialists’ consultations or referrals occur without documented explanation in the clinical records.

20I find that the January 29, 2020 EOB is a valid denial. It explained the medical and other reasons why the plans were denied. It provides clear, valid reasons for the denial, outlines the dispute resolution process, and indicates the two-year limitation to dispute the denial.

21By EOB dated March 23, 2020 the respondent enclosed copies of the IE reports, provided a summary of the doctor’s diagnosis, and indicates that the respondent maintained its denial. As above, the subsequent EOB upon receipt of the addendum report does not reset the triggering of the limitation period. It was triggered by the first valid denial.

22The limitation period for the plans for the pain management assessment and the chronic pain assessment were triggered on January 29, 2020 by a valid denial.

The application was not filed within the limitation period

23On March 20, 2020, Ontario enacted Regulation 73/20, which suspended limitation periods retroactively from March 16, 2020 and was repealed on September 14, 2020. This legislation was in force for 183 days. As such, a limitation period that began running before March 16, 2020 can be extended by 183 days. This was affirmed in McAuley v. Canada Post Corporation, 2021 ONSC 4528, where the Ontario Superior Court of Justice found that Regulation 73/20 extended all running limitation periods by 183 days.

24I have found a valid denial of the treatment plans in dispute and the income replacement benefits, triggering the limitation period. The limitation period for the treatment plans were triggered before March 16, 2020 (on October 15, 2019 and January 29, 2020) and can therefore be extended by 183 days. The limitation period to file his appeal of the denial of the treatment plan for chiropractic services expired on April 26, 2022. He had until July 31, 2022 to file his appeal of the denial of the plans for a pain management assessment and the chronic pain assessment. There is no extension of the deadline to file the appeal of the income replacement benefit because the denial was in November 2020, and is therefore not subject to Regulation 73/20. The limitation period to file the appeal of the income replacement benefits expired on November 23, 2022.

25The application to the Tribunal was filed on October 2, 2023. Therefore, the applicant did not file his application for any of the benefits in dispute within the limitation period.

26Pursuant 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 his 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 his favour in order to extend the limitation period. Therefore, I decline to do so.

ORDER

27The applicant is statute barred from proceeding with his application pursuant to section 56 as it was commenced more than two years after valid denials from the respondent.

28The application is dismissed.

29The Tribunal shall vacate any date that has been scheduled for a substantive issue hearing. The Tribunal file will be closed.