Licence Appeal Tribunal File Number: 23-012739/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:
Syed Gilani
Applicant
and
Security National Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Tamur Shah, Counsel
For the Respondent:
Rebecca Brown Greer, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Syed Gilani (“the applicant”) was involved in an incident on March 7, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010. The applicant was denied benefits by Security National 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 to a hearing pursuant to section 56 of the Schedule?
RESULT
3The applicant may proceed to the hearing.
ANALYSIS
4The substantive issues in dispute include whether the applicant sustained a catastrophic (“CAT”) impairment and entitlement to an award under s. 10 of Regulation 664. The respondent submits that the limitation period to dispute the denial of the CAT impairment had elapsed, and the application should therefore be barred. For the reasons that follow, I find that the limitation period was not triggered.
5The 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 must be initiated within two years after the insurer’s refusal to pay the amount claimed.
6By way of background, the applicant submitted an application for catastrophic impairment on June 9, 2018. The respondent advised by letter dated July 13, 2018 that his claim was denied, and he was required to attend insurer examinations (“IE”). Upon receipt of the CAT assessment reports, by letter dated August 12, 2019 the respondent advised the applicant that based on those reports, it had made a determination that his impairments did not meet the criteria for a CAT impairment. The letter included a warning of the two-year limitation and outlined the procedures to follow if he disagreed with the decision.
7In the spring of 2021, the applicant submitted section 25 CAT reports to the respondent. The respondent acknowledged those reports in a letter dated May 4, 2021 and advised that it would send the reports to IE assessors for review. Addendum reports of the IE assessors were provided to the applicant with a letter dated June 28, 2021 wherein the respondent advised that it maintained its determination that he did not suffer a CAT impairment.
8The respondent submits that there was a clear and unequivocal denial of the CAT impairment designation, triggering the limitation period which elapsed on February 18, 2022.1
9The applicant filed his application to the Tribunal disputing the CAT impairment designation on October 24, 2023. The respondent submits that the application was one year, eight months and six days after the expiration of the limitation period. The respondent submits that the applicant’s claim should therefore be barred pursuant to section 56 of the Schedule.
10I disagree. I find that the CAT impairment determination is a threshold issue, it is not a direct denial of benefits, and therefore the limitation period is not triggered.
11The respondent relies on the Tribunal decision in Sylvest v. Certas Home and Auto Insurance Co., 2023 CanLII 40094 (ON LAT), and 17-002867 v Economical Mutual Insurance Company, 2018 CanLII 83510 (ON LAT). However, I find these cases distinguishable, as the issue before the Tribunal was whether the applicant’s claim for attendant care and housekeeping benefits were statute barred, and not whether a limitation period applies to a catastrophic determination.
12I am bound by the Divisional Court decision in The Guarantee Company of North America v. Dong Do et al., 2015 ONSC 1891 (“Do”) and the Court of Appeal decision in Machaj v. RBC General Insurance Company, 2016 ONCA 257. The decision in Do confirmed a line of arbitral rulings that a refusal by the insurer to designate an insured as CAT does not trigger a limitation period because the denial of CAT impairment status is not a “refusal to pay a benefit”. The Divisional Court noted that a CAT determination does not by itself bestow any monetary award but rather acts as a test of eligibility which entitles an insured person to claim a greater level of benefits.
13Similarly, in Machaj, the Court of Appeal followed Do and noted that there is a clear distinction to be drawn between the claim for determination of catastrophic status and a claim for the specific benefits to which an injured person is entitled if found to have suffered a catastrophic injury. The court held that adding words such as “therefore you do not qualify for the increased benefits” does nothing more than tell the applicant that she lacked status to claim increased benefits. The additional words did not convert what was, in substance, a denial of CAT into a denial of the specific benefits that would trigger the commencement of the two-year limitation period.
14The respondent’s letter of August 12, 2019 advised that the applicant did not meet the criteria for CAT, and as a result, the medical and rehabilitation limits continue to be $50,000, that he was not entitled to attendant care more than 104 weeks post accident, and that the attendant care policy limits had been paid out.
15The applicant submits that the addition of these words are, like in Machaj, and attempt to convert what is, in substance, a denial of a CAT determination into a denial of the specific benefits that would trigger the commencement of the two year limitation period.
16The respondent submits that the denial letter denied the claim to both a CAT designation and CAT level benefits with sufficient details of the dispute resolution process, and accordingly the limitation period was triggered. The respondent submits that Machaj and Do are distinguishable, because unlike the insurers in those cases, the respondent specifically indicated that the applicant was not entitled to the increased CAT level benefits. The respondent submits the language it used in its denial letter went further than using boilerplate language that the applicant was not entitled to enhanced benefits, but rather distinctly listed benefits.
17While I agree with the respondent that there may be a clear and unequivocal denial of the attendant care and housekeeping benefits sufficient to trigger a limitation period with respect to those benefits. However, whether the limitation period with respect to those specific benefits elapsed is not in issue before me, and neither attendant care nor housekeeping benefits are part of the substantive issues. The narrow issue before me is whether the respondent’s denial of CAT triggered a limitation period, and I find that it did not. A denial of the catastrophic level of medical benefits does not trigger the limitation period because it is a threshold, not a benefit.
ORDER
18The applicant may proceed to the hearing as previously scheduled by the Tribunal.
Released: July 24, 2024
Kate Grieves
Adjudicator
Footnotes
- The limitation period which was set to expire on August 12, 2021 was extended by 183 days pursuant to O.Reg 73/20 which was enacted on March 20, 2020 and suspended limitation periods retroactively from March 16, 2020 to September 14, 2020 due to COVID-19.