Licence Appeal Tribunal File Number: 24-004220/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:
Eric Breuker
Applicant
and
TD General Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Tal Eshel, Counsel
For the Respondent:
William M. Lewer, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Eric Breuker (the “applicant”) was involved in an accident on April 12, 2019 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 TD General 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 the benefits claimed in his application because he failed to dispute their denial within the 2-year limitation period?
RESULT
3The applicant may proceed to a hearing.
PROCEDURAL ISSUES
No submissions by the applicant
4The 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
5Following the accident, the respondent accepted the applicant’s claim and began paying income replacement benefits.
6By letter dated February 21, 2020, the respondent advised that the benefits were stopped effective February 10, 2020, as the applicant had returned to his pre-accident employment.
7On April 3, 2024, the applicant filed an application to the Tribunal seeking entitlement to income replacement benefits.
8The respondent submits that there was a clear and unequivocal denial of the income replacement benefits, triggering the limitation period, and the applicant did not appeal the denial within two years. Rather, the application was filed more than four years after the denial of the benefits.
The Law
9The 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.
10In 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.
11If 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 income replacement benefit is not valid
12I find that the respondent has not met its burden to prove that letter dated February 21, 2020 was a valid and proper refusal to pay the benefit. It explains that the benefit was denied because he had returned to his pre-accident employment duties, and therefore no longer suffers from a substantial inability to perform the essential tasks of his employment.
13However, the letter does not explain the applicant’s right to dispute the termination if he disagreed, nor is there reference to the two-year limit to dispute the denial. It indicates that a copy of a notice titled “applicant’s right to dispute” is enclosed, however the respondent did not provide the enclosure with its submissions.
14Without evidence that the respondent advised the applicant of his right to dispute the denial, or that he was advised of the two-year limitation to dispute the denial, I find that the respondent has not met its burden to prove that a valid denial notice was provided to the applicant, in accordance with the principles set out in Smith.
15Given that the denial notice was not valid, the limitation period is not triggered, and applicant may proceed with his application for this claim.
ORDER
16The applicant may proceed to a hearing.
Released: September 26, 2024
___________________________
Kate Grieves
Adjudicator