24-003537/AABS-PI
Licence Appeal Tribunal File Number: 24-003537/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:
Suresh Sooklal
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Tal Eshel, Counsel
For the Respondent:
Nicholas L. Mester, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Suresh Sooklal (the “applicant”) was involved in an accident on April 5, 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 Wawanesa Mutual 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 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 applicant claims entitlement to non-earner benefits, and two treatment plans, plus interest.
6The 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
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.
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.
The respondent’s denial notices are compliant with the Schedule
The denial of the non-earner benefit is valid
10By letter dated August 6, 2019, the respondent denied the non-earner benefit.
11I find that the letter dated August 6, 2019 is a valid denial, triggering the limitation period. It indicates that the non-earner benefit is denied, provides excerpts of the three insurer’s examination reports with respect to their diagnosis and observations, and that he does not suffer a complete inability to carry on a normal life as a result of the accident.
12The denial was sufficiently clear, provided valid medical 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 non-earner benefits was triggered on August 6, 2019 by a valid denial.
The denial of the treatment plan for a psychological assessment is valid
13The treatment plan dated July 6, 2019 for a psychological assessment was denied by the respondent by way of correspondence dated August 16, 2019.
14I find that the letter dated August 16, 2019, was a valid denial notice. It identifies the disputed plan, that it had determined that he sustained predominantly soft tissue injuries, and per the findings of Dr. Silverman, psychologist, he did not suffer from a psychological impairment, so the proposed assessment was not reasonable or necessary. A summary of Dr. Silverman’s conclusion is included. The denial letter is sufficiently clear, provides valid reasons for the denial, outlines the dispute resolution process, and the relevant time limits that govern the process.
15The limitation period for the plan for the psychological assessment was triggered on August 16, 2019 by a valid denial.
The denial of the treatment plan for psychotherapy is valid
16The treatment plan dated November 21, 2019 for a psychotherapy was denied by the respondent by way of correspondence dated December 6, 2019.
17I find that the letter dated December 6, 2019, was a valid denial notice. It identifies the disputed plan, that it had determined that he sustained predominantly soft tissue injuries. A summary of Dr. Silverman’s conclusion is included. Per the findings of Dr. Silverman, he did not suffer from a psychological impairment, and the proposed treatment plan was not reasonable or necessary. The denial letter is sufficiently clear, provides valid reasons for the denial, outlines the dispute resolution process, and the relevant time limits that govern the process.
18The limitation period for the plan for the psychotherapy was triggered on December 6, 2019 by a valid denial.
The application was not filed within the limitation period
19On 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.
20I have found valid denials of the benefits in dispute triggering the limitation period. The limitation periods were triggered before March 16, 2020 and would have continued to run during the effective period of Regulation 73/20, and can therefore be extended by 183 days.
21With the extension, the limitation period to file his appeal of the denial of the non-earner benefits expired on February 5, 2022. He had until February 15, 2022, to file his appeal of the denial of the plan for the psychological assessment. He had until June 7, 2022 to appeal the denial of the plan for psychotherapy.
22The application to the Tribunal was filed on March 19, 2024. Therefore, the applicant did not file his application for any of the benefits in dispute within the limitation period.
23Pursuant 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
24The applicant is statute barred from proceeding with his application for all of the benefits in dispute pursuant to section 56 as it was commenced more than two years after valid denials from the respondent.
25The application is dismissed.
26The Tribunal shall vacate any date that has been scheduled for a substantive issue hearing. The Tribunal file will be closed.
Released: August 30, 2024
___________________________
Kate Grieves
Adjudicator