Smai v. The Personal Insurance Company, 2025 CanLII 102223

Citation: Smai v. The Personal Insurance Company, 2025 ONLAT 25-001982/AABS-PI

Licence Appeal Tribunal File Number: 25-001982/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:

Adam Smai

Applicant

And

The Personal Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Maka Metreveli, Paralegal

For the Respondent:

Brittanny K. Tinslay, Counsel

Heard:

By Way of Written Submissions

OVERVIEW

1Adam Smai (“the Applicant”), was involved in an automobile accident on July 15, 2020 and sought benefits from The Personal Insurance Company (“the Respondent”) 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 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 the benefits claimed in this application, because he failed to dispute the denials within the 2-year limitation period?

RESULT

3The Applicant is not barred from proceeding with his application.

BACKGROUND

4At 14 years old, the Applicant was the front-seat passenger of a vehicle which was struck by a stolen vehicle while traversing an urban intersection. He sought and received accident benefits from the Respondent following the accident.

5The Applicant engaged in treatment pursuant to the Minor Injury Guideline (“the MIG”), which the respondent funded. After completing treatment within the MIG, he sought funding for additional chiropractic treatment, as well as a psychological assessment. The claims were made in 2020 and 2021. In response, the Respondent refused to fund the claims because it believed that the Applicant’s injuries fell within the Minor Injury Guideline.

6The Applicant applied to the Tribunal on February 13, 2025 to dispute the denials rendered in 2020 and 2021. In response to the application, the Respondent raised a preliminary issue on the grounds that the Applicant failed to dispute the denial of benefits within the two-year limitation period, outlined in section 56 of the Schedule.

7The Applicant disagrees. He submits that the two-year limitation period described in section 56 of the Schedule does not apply because he was a minor at the time. To the Applicant, the limitation clock did not start until he turned 18, and that he submitted his application within two years from then.

The Law

8Section 56 of the Schedule limits the period for which an insured person may dispute an insurer’s refusal to pay. The limitation period is fixed at two years from the refusal to pay.

9Section 4 of the Limitations Act 2002, S. O. 2002, c.24 (“the LA”) establishes a basic limitation period of two years from the day the claim was discovered. Section 6 of the LA provides that the limitation period established in section 4 does not run during any time which the person is a minor and not represented by a litigation guardian in relation to the claim. Thus, the application of this provision is that a person who is a minor, who is not represented by a litigation guardian, has the limitation period extended to their 20th birthday.

10Relevant to the issue of whether the LA applies is whether it has jurisdiction over the Tribunal, or proceedings before the Tribunal. Specifically, whether the Tribunal is considered a “court” in the context of section 2 of the LA.

11Section 2 of the LA is as follows:

2(1) This Act applies to claims pursued in court proceedings other than,

(a) proceedings to which the Real Property limitations Act applies;

(b) proceedings in the nature of an appeal, if the time for commencing them is governed by an Act or Rule of Court;

(c) proceedings under the Judicial Review Procedure Act;

(d) proceedings to which the Provincial Offences Act applies;

(e) proceedings based on the existing aboriginal and treaty rights of the aboriginal peoples of Canada which are recognized and affirmed in section 35 of the Constitution Act, 1982;

(f) proceedings based on equitable claims by aboriginal peoples against het Crown; and

(g) proceedings to which the Limitation Convention or the Amended Limitation Convention, as defined in the International Sales Conventions Act, applies.

12On the issue of whether the Tribunal is captured in section 2 of the LA, I asked for additional submissions from the parties in light of Botbyl v. Heartland Farm Mutual Inc., 2025 ONSC 3349 (“Botbyl”). In Botbyl, the Divisional Court concluded that the use of the word “court” in section 129 of the Insurance Act included the Tribunal. At paragraph [73] of Botbyl, the Divisional Court cautioned against reading the term “court” narrowly when it leads to a “denial of an appropriate and just remedy”. Botbyl is binding upon me.

13The Respondent relies on Letestu v. Ritlyn Investments, 2016 ONSC 6540 (“Letestu”), J.V. v. Economical Insurance Company, 2018 CanLII 142935 (ON LAT) (“JV”), Aquino v. Aviva Insurance Company, 2020 CanLII 80314 (ON LAT) (“Aquino”), and Vasudevan v. Economical Insurance Company, 2023 CanLII 81820 (ON LAT) (“Vasudevan”). It submits that these cases concluded that the LA applies only to courts and that the Tribunal is not a court.

14The Applicant relies on 17-003732 v. Royal and Sun Alliance, 2018 CanLII 39449 (ON LAT) (“RSA”), which echoed the reasoning and affirmed the result of Moran v. Economical, FSCO A13-011759 (“Moran”). In both cases it was found that the claims related to a minor involved in an accident were subject to section 6 of the LA. These cases found that the minors involved met the criteria in section 6 of the LA because their applications for dispute resolution were completed by parents or guardians of the minor, and not by a litigation guardian. In RSA, the Tribunal found that the purpose of the LA is to protect minors who are not capable of making decisions and appreciating the consequences of their decisions and that it should apply to minors navigating the accident benefit system.

15The Applicant also relies on Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997 (“Fratarcangeli”). In Fratarcangeli the Divisional Court concluded that the Tribunal has the jurisdiction to extend the limitation period by operation of section 7 of the Licence Appeal Tribunal Act, 1999, SO 1999, c 12, Sch G (“the LAT Act”). Section 7 permits the Tribunal to extend a limitation period if the Tribunal is satisfied that there are reasonable grounds for applying the extension.

16Despite referring to section 7 of the LAT Act as a means to extend the limitation period, the Applicant made no submissions regarding Manuel v. Registrar, 2012 ONSC 1492 (“Manuel”) and the four factors to consider when invoking section 7 of the LAT Act. The four factors are: a bone fide intention to appeal within the appeal period; the length of delay; the prejudice to the other party; and the merits of the appeal.

17The Respondent mentioned the LAT Act in its initial submissions, but never commented on why the limitation period should not be extended in the matter. It addressed the merits of a section 7 extension in reply submissions, once the Applicant submitted that the Tribunal has the jurisdiction to extend the limitation period by operation of section 7 of the LAT Act. It submits that the four criteria to consider when extending the limitation period does not assist the Applicant here. It states that the Applicant had not tendered evidence of a bona fide intention to appeal within the appeal period, that the length of delay ranging from 3.75 to 4.5 years is significant, that it is prejudiced by the delay because it has been unable to gather timely medical evidence to address the claims, and that the Applicant’s medical evidence is lacking and suggests that the claim lacks merit.

ANALYSIS

18This matter focuses on whether section 2 of the LA applies to proceedings at the Tribunal. Specifically, whether pursuing claims for benefits through the Tribunal is akin to claims pursued in court proceedings. For the following reasons, I find that section 2 of the LA includes the Tribunal.

Does the LA apply to the Applicant?

19I find that the current jurisprudence supports a finding that the LA applies to disputes over entitlement to accident benefits.

20I prefer the reasoning in RSA and Moran over Letestu. Both RSA and Moran concluded that the LA applied to disputes over entitlement to accident benefits on the grounds that a parent or guardian who initiates an application on behalf of a minor does not give any special undertaking to the Tribunal and does not confirm that the parent or guardian is a litigation guardian. I agree with the interpretation in RSA that a parent or guardian is not the same as a litigation guardian. In the present case, there is no evidence to suggest that the Applicant had a litigation guardian.

21Letestu was overturned on appeal in Letestu Estate v. Ritlyn Investments Limited, 2017 ONCA 442 (“Letestu Estate”). In Letestu Estate, which is binding upon me, the Court of Appeal found that the Superior Court had jurisdiction over the dispute, instead of the Landlord and Tenant Board. The previous decision, which the Respondent relies upon, found that the LA applies to “claims pursued in court proceedings”, and does not apply to disputes before administrative tribunals. In overturning the decision in Letestu on the grounds that the Superior Court held jurisdiction, the Court of Appeal was not required to address the narrow issue of whether the LA applies to administrative tribunals, such as the Landlord and Tenant Board or this one.

22In RSA, it was found that a legal guardian who co-signs an application for accident benefits is not a litigation guardian because it does not outline any special oath or obligation, nor does it confirm that the person signing is the litigation guardian. It was further concluded that applying for benefits is different than issuing a statement of claim, and that the Schedule provides greater time periods for minors to apply for benefits, thus minors should be accorded the same flexibility when it comes to disputing entitlement to those benefits. Like in RSA, Moran also concluded that acting as a minor’s representative or substitute decision maker is not analogous to acting as a Litigation Guardian.

23I respectfully disagree with the caselaw submitted by the Respondent and their interpretation for the following reasons. The decision in JV never addressed whether a vulnerable insured, such as a minor, should be afforded an extended limitation period. Instead, it addresses whether a different section of the LA applies but concluded that the LA applies only to courts and the litigation issues brought before courts. I find this case has limited application here because it does not address the underlying issue addressed in RSA and Moran: that minors are vulnerable litigants who require safeguards when navigating the dispute resolution process with a sophisticated litigant, such as the Respondent.

24The comments in Vasudevan on the application of the LA were made obiter and with respect to a benefit that was withdrawn from the dispute. The insured person in that case had withdrawn their claim for non-earner benefits prior to the hearing, yet the adjudicator in that case decided to follow the reasoning in Aquino.

25In Aquino, the Tribunal concluded that section 2 of the LA does not apply to administrative tribunals because it states that the LA applies to claims pursued in “court” proceedings. Aquino grappled with, but never truly addressed, the unfairness regarding the issue that it is unreasonable to expect a minor to seek and instruct legal counsel to commence a dispute until they turn 18 years old. Aquino applied a narrow interpretation of the term “court” in section 2 of the LA, but never truly addressed what the term “court” means. Notably, “court” is not defined in the LA.

26In my view, Aquino does not appreciate that the Schedule has long been established as consumer protection legislation and that any ambiguity or discrepancy be remedied in favour of the Applicant. Tomec v. Economical Mutual Insurance Co., 2019 ONCA 882 (“Tomec”) affirmed that the Schedule is consumer protection legislation that has the goal of reducing the economic dislocation and hardship of motor vehicle accident victims. Tomec also finds that, as affirmed in Botbyl, when faced with the choice of a statutory interpretation that furthers public policy objectives underlying the Schedule and one that undermines it, the only reasonably decision is to side with the former.

27This is a situation where there are two possible interpretations, and I must choose the interpretation that further supports the overall purpose of reducing the harm to persons injured in motor vehicle accidents. The Applicant asks that I interpret the term “court” in the LA in a manner that is consistent with reducing the economic hardship of a minor injured in an automobile accident. This serves the purpose of expanding access to accident benefits and is consistent with the overall consumer protection theme of the Schedule.

28On the other hand, the Respondent is asking me to interpret the term “court” to refer strictly to proceedings under the superior court. This serves the purpose of restricting access to accident benefits and is inconsistent with the overall consumer protection theme of the Schedule.

29Whereas, if I accept the Applicant’s interpretation, and I do, that the LA applies, it serves the purpose of expanding access to accident benefits. The Applicant’s interpretation is consistent with the overall consumer protection theme of the Schedule and is the interpretation that provides greater access to benefits.

30Thus, in accordance with Tomec and Botbyl, I conclude that the term “court” in section 2 of the LA includes the Tribunal. Having concluded that the LA applies, I now turn my attention to whether the Applicant was represented by a litigation guardian at any time in relation to the claim, which would engage the limitation clock.

No evidence the Applicant was represented by a litigation guardian for this claim

31Pursuant to section 6 of the LA, the limitation clock does not run during any time in which the person with the claim is a minor and is not represented by a litigation guardian in relation to the claim.

32Section 8 of the LA states that if a person is represented by a litigation guardian in relation to the claim, the limitation clock applies as if the litigation guardian is the person with the claim.

33The Respondent submits that the Applicant was represented by a litigation guardian as early as July 15, 2022. It submits a document that indicates that the Applicant was represented by a litigation guardian for a claim opened in the Superior Court on July 15, 2022. The Applicant never addressed this issue directly.

34I find that I am unable to accept the Respondent’s interpretation and application of sections 6 and 8 of the LA because it has not demonstrated that the Applicant was represented by a litigation guardian for this claim. Indeed, it looks clear that the Applicant is represented by a litigation guardian for a claim before the Superior Court. However, I find no evidence indicating that the claim before the Superior Court is the claim being advanced at this hearing for two main reasons. First, the Statement of Claim for that matter is public record and the Respondent could have produced it as evidence to confirm that it relates to this claim. Yet, the Respondent never produced it for review. Secondly, pursuant to section 280 of the Insurance Act the Superior Court does not have jurisdiction over disputes in respect of an insured person’s entitlement to statutory accident benefits, or in respect of the amount of statutory accident benefits to which an insured person is entitled. Therefore, it would be jurisdictionally impossible for the Superior Court matter to be related to the Applicant’s claim for accident benefits.

35The LA provides that the limitation clock applies when a minor is represented for the claim by a litigation guardian (my emphasis). The LA does not refer to all claims in which the minor is represented by a litigation guardian. This distinction is important when considering the application of the LA. The intention of section 6 of the LA is to provide an extended limitation period for a minor, but not if they are represented by a litigation guardian for that specific claim. Here, it cannot be said that the litigation guardian represented the Applicant for his claims for accident benefits because such disputes do not fall within the jurisdiction of the Superior Court and therefore cannot be related to his claim for accident benefits.

36Accordingly, I find that the LA applies to claims pursued at the Tribunal, and that the Applicant has not been represented by a litigation guardian with respect to his claim for accident benefits. Therefore, I find that the Applicant is not statute-barred form proceeding with his application before the Tribunal

The LAT Act

37Having determined that the LA applies, and that the Applicant is entitled to proceed with his claim, I need not opine on whether the limitation period should be extended by operation of section 7 of the LAT Act.

ORDER

38The Applicant may proceed with his application before the Tribunal.