Lynette Wall v. Economical Insurance Company, 2024 CanLII 92076

Licence Appeal Tribunal

24-004318/AABS-PI

Licence Appeal Tribunal File Number: 24-004318/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:

Lynette Wall

Applicant

and

Economical Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Pasquale Maiolo, Paralegal

For the Respondent:

Hermina Nuric, Counsel

Heard:

By Way of Written Submissions

OVERVIEW

1Lynette Wall (the “applicant”) was involved in an accident on November 9, 2016, 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 Economical 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 her application because she failed to dispute their denial within the 2-year limitation period?

RESULT

3The applicant is statute barred from proceeding with her 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 filed an application to the Tribunal disputing the respondent’s determination that the applicant was subject to the Minor Injury Guideline (MIG), and the denial of a treatment plan for chiropractic services dated July 15, 2021.

6The respondent submits that there was a clear and unequivocal denial of the benefits in dispute in 2021, 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, and it must provide valid or other reasons for the denial.

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 notice is compliant with the Schedule

10The treatment plan dated July 15, 2021 for chiropractic services was denied by the respondent by way of correspondence dated July 21, 2021.

11I find that the letter dated is a valid denial, triggering the limitation period. It identifies the disputed plan, refers to the conclusions reached by the insurer’s assessors, and indicates that the plan was denied because she sustained a minor injury that was subject to the MIG.

12The 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 was triggered on July 21, 2021 by a valid denial.

The application was not filed within the limitation period

13The two-year limitation to dispute the valid denial expired on July 21, 2023. The application to the Tribunal was filed on April 5, 2024 and was therefore nearly 8 months late.

14Pursuant 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 her 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 her favour in order to extend the limitation period. Therefore, I decline to do so.

The Minor Injury Guideline

15The MIG is a guideline and not a standalone issue entitled to a determination on its own under the Schedule. The MIG establishes a framework for treatment in order to speed access to rehabilitation for insureds who sustain predominantly minor injuries in automobile accidents. Without any treatment plans in dispute, the issue of the MIG is moot. Therefore, there is no need to proceed to hearing.

ORDER

16The applicant is statute barred from proceeding with her application pursuant to section 56 as it was commenced more than two years after a valid denial from the respondent.

17The application is dismissed.

18The Tribunal shall vacate any date that has been scheduled for a substantive issue hearing. The Tribunal file will be closed.