24-000352/AABS-PI
Licence Appeal Tribunal File Number: 24-000352/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:
Sutharman Kumaraschandran
Applicant
and
Allstate Insurance Company of Canada
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Tal Eshel, Counsel
For the Respondent:
Greg Specht, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Sutharman Kumaraschandran (“the applicant”) was involved in an accident on March 23, 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 Allstate 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
2Is the applicant barred from proceeding to a hearing for all of the benefits claimed in this application because the applicant failed to dispute their denial within the 2-year limitation period?
RESULT
3The applicant is statute barred from proceeding with his application for non-earner benefits pursuant to section 56 of the Schedule.
4The applicant may proceed to a hearing with respect to the remaining claims.
PROCEDURAL ISSUES
No submissions by the applicant
5The applicant did not file any submissions for the preliminary issue hearing. The case conference report and order (“CCRO”) identified the preliminary issue, indicated that it was to be heard prior to the substantive issues, and set out a timetable for the parties’ submissions. Despite this order, none were filed on behalf of the applicant.
ANALYSIS
6The substantive issues in dispute include the applicability of the Minor Injury Guideline (“MIG”), entitlement to non-earner benefits (“NEB”), a treatment plan dated July 22, 2019, interest and an award.
The treatment plan that was purportedly not submitted to the respondent
7The respondent submits that the treatment plan in dispute dated July 22, 2019 was never submitted to the insurer, and therefore the applicant should be barred from proceeding with this claim. In the alternative, the respondent submits that the treatment plan should be “deemed denied” as of August 1, 2019 – the date on which a response was required pursuant to section 38(8).
8The very narrow issue before me, identified in the CCRO, was whether the applicant’s claims are statute barred due to the expiration of the limitation period. If the treatment plan was not submitted, and there was no denial therefore no limitation period was triggered. Even if I were to find that the treatment plan was submitted, then the respondent did not deny it, and no limitation period was triggered.
9While it is open to the respondent to make its arguments concerning the lack of submission of the treatment plan at a substantive hearing, I find that it would be inappropriate for me to dismiss the entire application on the submissions before me. The parties have a right to receive notice of the issues in dispute. It would be procedurally unfair to the applicant to allow the respondent to add an issue in this manner. If the respondent wanted to add a further preliminary issue regarding the Tribunal’s jurisdiction to hear an appeal of a matter where there was no denial (because the plan was not submitted) or request an amendment of the CCRO, it could have filed a motion.
10Therefore, based on the narrow issue before me, I find that the applicant can proceed to a hearing with respect to his claim for the treatment plan.
The Law
11The 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.
12In 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.
13If 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 denial of the non-earner benefit is compliant with the Schedule
14The respondent submits that there was a clear and unequivocal denial the NEB in dispute in 2019, triggering the limitation period, and the applicant did not appeal the denial within two years.
15The respondent acknowledged receipt of the initial application by way of an Explanation of Benefits (“EOB”) dated September 16, 2019. It indicates that the insurer refused to pay any specified benefits as a disability certificate had not been submitted, and that no benefits would be payable between the date the application was received and the date the disability certificate was received.
16I find that this EOB denying the NEB was a valid and proper refusal to pay the benefit. It uses straightforward and clear language as required by Smith. It advised the applicant of the denial, provided reasons for the denial, and straightforward language regarding his right to dispute the termination if he disagreed, and the two-year limit to dispute the denial. It was a clear and unequivocal refusal of benefits by the insurer with reasons, that allows the insured to decide whether to dispute the refusal.
17The limitation period for the NEB was triggered on September 16, 2019 by a valid denial.
The application was not filed within the limitation period
18On 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.
19I have found a valid denial of the NEB, triggering the limitation period. The limitation period was triggered before March 16, 2020 (on September 16, 2019) and can therefore be extended by 183 days. With the extension, the limitation period to file the appeal of the NEB expired on March 18, 2022.
20The application to the Tribunal was filed on January 17, 2024. Therefore, the applicant did not file his application for the benefits in dispute within the limitation period.
21Pursuant 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
22The applicant is statute barred from proceeding with his claim for NEBs pursuant to section 56 as it was commenced more than two years after a valid denial.
23The applicant may proceed to a hearing for the remainder of his application.
Released: August 28, 2024
Kate Grieves
Adjudicator