Robart Francis v. Aviva General Insurance Company of Canada, 2024 CanLII 67352

23-014927/AABS-PI

Licence Appeal Tribunal File Number: 23-014927/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:

Robart Francis

Applicant

and

Aviva General Insurance Company of Canada

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Tal Eshel, Counsel

For the Respondent:

Tefiney Scarlett, Counsel

Heard:

By Way of Written Submissions

OVERVIEW

1Robart Francis (“the applicant”) was involved in an accident on January 2, 2019, 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 benefits by Aviva General 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.

PROCEDURAL ISSUE

4The 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 no submissions were filed on behalf of the applicant.

ANALYSIS

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

Law

6The 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.

7In 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.

8Further, 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.

The respondent’s denial notices are compliant with the Schedule

The denial of the treatment plan dated July 16, 2019 is valid

9The treatment plan dated July 16, 2019 for psychological services was denied by the respondent by way of correspondence dated August 15, 2019.

10I find that the letter dated August 15, 2019 is a valid denial, triggering the limitation period. It identifies the disputed plan, that the plan was denied because he sustained a minor injury that was subject to the MIG. It indicates that there was insufficient medical evidence to support that he suffered from a psychological impairment as a result of the accident and requested additional medical documentation.

11The denial was sufficiently clear, provided valid reasons for the denial, outlined the dispute resolution process, and the two-year time limit to dispute the decision. I find that the limitation period for the treatment plan dated July 16, 2019 was triggered on August 15, 2019 by a valid denial.

The denial of the treatment plan dated September 14, 2019 is valid

12The treatment plan dated September 14, 2019 for chiropractic services was denied by the respondent by way of correspondence dated October 8, 2019.

13I find that the letter dated October 8, 2019, was a valid denial notice. It identifies the disputed plan, that it had determined that he sustained predominantly soft tissue injuries, that it had approved to the maximum of $3,500.00 available under the policy for minor injuries. It is sufficiently clear, provides valid reasons for the denial, outlines the dispute resolution process, and the relevant time limits that govern the process.

14The limitation period for the plan for chiropractic services was triggered on October 8, 2019 by a valid denial.

The application was not filed within the limitation period

15On 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 regulation was in force for 183 days. As such, a limitation period that runs during the effective period of the regulation is 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.

16I have found valid denials of the treatment plans in dispute triggering the limitation period. The limitation periods for the treatment plans were triggered before March 16, 2020, would have continued to run during the effective period of Regulation 73/20, and can therefore be extended by 183 days. The limitation period to file his appeal of the denial of the treatment plan for psychological services expired on February 14, 2022. He had until April 9, 2022, to file his appeal of the denial of the plan for chiropractic services.

17The application to the Tribunal was filed on December 7, 2023. Therefore, the applicant did not file his application for any of the benefits in dispute within the limitation period.

18Pursuant 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

19The 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.

20The application is dismissed.

21The Tribunal shall vacate any date that has been scheduled for a substantive issue hearing. The Tribunal file will be closed.