Citation: Sandhu v. Economical Insurance 2024 ONLAT 23-004654/AABS-PI

Licence Appeal Tribunal File Number: 23-004654/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:

Gurinder Sandhu

Applicant

and

Economical Insurance

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Linda Spurrell, Paralegal

For the Respondent:

Rachel L. Jadd, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Gurinder Sandhu, the applicant, was involved in a motor vehicle accident on April 24, 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, Economical Insurance, 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 all of the benefits claimed in her application because the applicant failed to dispute their denial within the 2-year limitation period?

result

3The applicant is barred from proceeding with her application.

ANALYSIS

Background

4The applicant was involved in an accident on April 24, 2018, and submitted an Application for Accident Benefits (“OCF-1”) to the respondent on May 24, 2018. In her OCF-1 the applicant indicated that she was unemployed at the time of the accident, but that she had worked 26 out of the previous 52 weeks. However, the section of the OCF-1 relating to income replacement benefits (“IRB”) was left blank. On June 7, 2018 the respondent wrote to the applicant advising her that she was not eligible for IRBs as she was unemployed at the time of the accident. The applicant subsequently submitted a Disability Certificate (“OCF-3”), specifying that she had last worked on March 30, 2018.

5The respondent sent a subsequent letter on June 13, 2018, stating that it had determined that the applicant was not eligible for IRBs, citing insufficient documentation to support the claim. It requested the applicant’s pay stubs for 52 weeks prior to the accident, her Record of Employment (“ROE”), and a statement. The respondent submits that no further documentation was provided by the applicant.

6The applicant filed her Tribunal application on April 24, 2023, almost five years after the respondent’s denial.

Law

7Section 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.

8Section 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.

9The onus is on the applicant to establish reasonable grounds for an extension under section 7 of the LAT Act.

Parties’ Positions

10The respondent submits that the applicant failed to bring her application within the two-year limitation period stipulated in s. 56 of the Schedule. It argues that it provided a clear and unequivocal denial of the IRB in its June 2018 letters, and that the Tribunal should not exercise its discretion to extend the limitation period, pursuant to s. 7 of the LAT Act.

11The applicant does not dispute that her Tribunal application was submitted on April 24, 2023. However, she requests that the Tribunal extend the limitation period pursuant to s. 7. The applicant further argues that the respondent’s denials were incorrect and insufficient.

The respondent’s denial notice was valid

12The applicant raises the issue of the sufficiency of the respondent’s denials. She argues that the first June 7, 2018 denial letter simply stated that she was “not eligible” for IRBs, but did not provide any details as to the further information it required to assess her claim. With respect to the respondent’s subsequent correspondence on June 13, 2018, the applicant concedes that the respondent requested additional information, including her ROE. However, the applicant argues that she provided this ROE in September 2019, without any response from the insurer. As she provided some of the requested documentation, the applicant argues that the respondent’s denial letters were invalid and “make the expiry of the claim the new denial date”.

13I am not persuaded by the applicant’s argument. I agree with the respondent that its correspondence is in compliance with the principles set out in Smith v. Co-operators General Insurance Co, 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.

14While I agree with the applicant that the initial correspondence dated June 7, 2018 simply stated that the applicant was not eligible for IRBs without requesting additional information, from my review, the subsequent correspondence dated June 13, 2018 was a fulsome denial.

15The June 13, 2018 letter stated that there was insufficient documentation and information to substantiate eligibility and that as such, the respondent determined that the applicant was not entitled to the IRB. The denial letter further identified the information it did not have, but required to determine eligibility, namely, the pay stubs, ROE and a statement. Finally, the June 13, 2018 letter outlined how to dispute the denial, referencing the two-year limitation. I agree with the respondent that the June 13, 2018 denial was a clear and unequivocal denial, in compliance with Smith.

16The applicant further argues that she in fact had provided sufficient evidence to the respondent to determine IRB eligibility, rendering its denial “invalid”. She submits that she provided her ROE to the respondent on September 25, 2019, showing that she had worked 26 out of the previous 52 weeks. However, the respondent disputes that it ever received the ROE and points to the fact that at the case conference held on December 13, 2023, it had specifically requested the ROE and pay stubs as production requests.

17I agree with the respondent that the applicant has not led any evidence to establish that the ROE was provided to the respondent. Although a copy of the ROE was included with the applicant’s submissions for this hearing, no fax confirmation or correspondence of any kind was provided, to show if and when this was sent to the respondent. Although in her submissions she states that she sent this ROE “on or about September 25, 2019”, it is well settled that submissions alone are not evidence. As such, I do not accept the applicant’s position that she complied with the respondent’s request, rendering the denial invalid.

18Finally, the applicant appears to be making the argument that denials prior to the receipt of requested information, are invalid. In contrast, the respondent argues that the Tribunal has determined that a premature denial of a benefit can be considered a sufficient denial to trigger a limitation period, relying on J.G v. Co-Operators General Insurance Company, 2019 CanLII 110087 (ONLAT). The applicant has not provided any Tribunal decisions in support of her position. I am persuaded by the respondent’s argument and cited caselaw and agree with the reasoning in J.G. that a pre-emptive denial of a benefit can still be considered proper and trigger the two-year limitation period.

19Having determined that respondent’s denial was valid, I must still consider whether an extension of the limitation period should be granted.

Section 7 of the LAT Act

20I find that the applicant has not provided compelling evidence that the limitation period should be extended under s. 7.

21The four factors to be considered when assessing whether an extension should be granted are: i) the existence of a bona fide intention to appeal within the appeal period; ii) the length of the delay; iii) prejudice to the other party; and iv) the merits of the appeal.

22While the applicant argues that the fact that she filed her application with the Tribunal on April 24, 2023 is evidence of her bona fide intention to appeal, I note that the Manuel factor requires that this intention be evident within the appeal period, or in this case, the limitation period. The applicant has not directed me to any evidence that she intended to appeal the denial within the two-year limitation period. I further do not find the applicant’s argument that the length of the delay is “not an issue” since the respondent closed their file in 2019, to be persuasive. A delay of almost three years from the expiration of the limitation period is a significant delay, whether or not an insurer closed the file in the interim.

23While I agree with the applicant that she would be prejudiced if she were barred from proceeding with her IRB claim, there is also prejudice to the respondent. The respondent has been deprived of the opportunity to assess the applicant during the three year delay. I further agree with the respondent that there is prejudice in undermining the certainty of limitation periods. Finally, when considering the merits of the claim, the only evidence provided by the applicant is her ROE. No additional evidence was tendered. While I accept that the ROE indicates that the applicant worked 26 out of the previous 52 weeks, no additional evidence has been provided, either in terms of medical evidence or employment information, to support her IRB claim.

24When weighing the four factors specified in Manuel, I find that the applicant has not demonstrated that an extension of the limitation period is justified.

CONCLUSION AND ORDER

25I find that the applicant is statute-barred from proceeding with her application pursuant to s. 56 of the Schedule.

26The application is dismissed and the substantive hearing is vacated.