Emmanuel v. TD General Insurance Company, 2025 CanLII 122001

Emmanuel v. TD General Insurance Company

Citation: Emmanuel v. TD General Insurance Company, 2025 ONLAT 24-009477/AABS Licence Appeal Tribunal File Number: 24-009477/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:

Kanimoli Emmanuel Applicant

and

TD General Insurance Company Respondent

DECISION

ADJUDICATOR: Harry Adamidis

APPEARANCES:

For the Applicant: Elias Toby, Counsel

For the Respondent: Ashley Dunkley, Counsel Antonella Santi, Counsel

Interpreters: Ruth Manick (Tamil) Naga Ramalingam (Tamil)

HEARD: by Videoconference: June 30 – July 2, 2025

OVERVIEW

1Kanimoli Emmanuel, the applicant, was involved in an automobile accident on September 25, 2017, 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 the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2Is the applicant barred from proceeding to a hearing for the following benefit: Is the applicant entitled to an income replacement benefit (IRB) in the amount of $400.00 per week from September 25, 2017 to ongoing because the applicant failed to dispute their denial within the 2-year limitation period?

ISSUES

3The applicant withdrew all the substantive issues. As such, the only remaining issue in dispute is the preliminary issue.

4Before the applicant withdrew the substantive issues, the respondent asked for the issue of whether it is liable to pay an award under s. 10 of Reg. 664 to be struck from this proceeding because the applicant had not provided the particulars of the award. The respondent argued that it was procedurally unfair to proceed on this issue because it did not know the case to be met or how to respond. I agreed with the respondent, however, this is a moot point as the applicant subsequently withdrew this issue.

5Upon the applicant’s withdrawal of the substantive issues, the respondent sought costs.

RESULT

6The applicant is barred from proceeding to a hearing for the IRB because she failed to dispute their denial within the 2-year limitation period.

7The respondent is granted $1,000.00 in costs.

ANALYSIS

Is applicant is barred from proceeding to a hearing for the IRB?

8I find that the applicant is barred from proceeding to a hearing for the IRB because she did not dispute the denial within the 2-year limitation period.

9Section 56 of the Schedule requires the insured to commence proceedings within two years after the insurer’s refusal to pay the amount claimed.

10In an undated application, which the parties agree was the first application filed by the applicant, the applicant indicates that she received an IRB from April 23, 2018 to August 4, 2018, although September 25, 2017, the date of the accident, is given as the date of IRB denial.

11In any event, a tolling agreement was entered into on August 30, 2023. The applicant withdrew her initial application and added the issues, including the IRB issue, from the first application to a new LAT application under file 23-009476/AABS. The respondent agreed to not raise any limitation issue in regard to adding issues from the first application to 23-009476/AABS.

12The Tribunal Registrar sent an email to the applicant’s legal assistant on August 31, 2023 confirming that the “requested issues” were added to 23-009476/AABS.

13On March 1, 2024, the respondent sent an email to the applicant where it agrees to enter into a second tolling agreement that would allow five issues from 23-009476/AABS to be re-filed in this current proceeding. The IRB issue is not included in this list of five tolled issues.

14The second tolling agreement is dated March 1, 2024.

15The applicant filed the application for this current proceeding on July 30, 2024. The IRB issue is not included in this application.

16On November 28, 2024, the Tribunal issued a Case Conference Report and Order (CCRO) following a case conference that took place the previous day. The preliminary issue of whether the IRB is subject to a s. 56 limitation is noted on the CCRO.

17The applicant argues that the second tolling agreement allows all the issues from 23-009476/AABS, including the IRB issue, to be included in this current proceeding.

18The respondent argues that it never agreed to toll the IRB issue into the current proceeding. It points to an email where it agrees to toll certain issues, but not the IRB. It also points to the application for this proceeding where the IRB denial is not listed as an issue in dispute. In its view, this shows that both parties understood that the IRB denial would be adjudicated in this proceeding.

19In reply, the applicant states that there is no requirement to list all the issues in dispute on the application and that it can add other issues at the case conference.

20I agree with the respondent. There is no evidence showing that it agreed to toll the IRB issue. The email dated March 1, 2024 lists the five issues the respondent agrees to toll. The IRB denial is not one of those issues. This is clear evidence that the respondent did not agree to toll the IRB.

21I also note that the IRB denial is not listed as an issue in dispute in the application for this current proceeding. This is consistent with the email of March 1, 2024 and shows that the parties did not agree to toll the IRB.

22I give little weight to the applicant’s explanation that the IRB denial is absent from the application because issues can be added at the case conference. The Tribunal receives submissions at a case conference when deciding whether to add an issue. If the Tribunal decides not to add the issue, then a party may file a motion which could result in a further denial of the request to add an issue. Consequently, I do not accept the applicant’s explanation for why she waited until the case conference to add the issue of the IRB. This is because issues are not added in a perfunctory manner at case conferences as suggested by the applicant. In my view, it is more likely that the applicant agreed to the respondent’s terms of just tolling five issues from 23-009476/AABS, and for this reason, did not include the IRB in the application.

23The applicant did not make any submissions on the Tribunal exercising its discretion under s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G to extend time to file the appeal beyond the limitation period.

24In any event, I find that the IRB is not covered by the second tolling agreement because the evidence does not show the parties agreed to toll the IRB issue. Consequently, I further find that the applicant is barred from proceeding to a hearing for the IRB because she failed to dispute this denial within the 2-year limitation period.

Costs

25I find that the applicant is liable to pay $1,000.00 in costs.

26Rule 19 of the Licence Appeal Tribunal Rules, 2023 (Rules) allows a party to seek costs if the party believes that another party has acted unreasonably, frivolously, vexatiously, or in bad faith.

27The respondent notes that the applicant has prolonged the adjudication of the issues in dispute in previous applications that were withdrawn. It submits that the only reason for doing so was to seek a settlement of her claims. The respondent further submits that the applicant has done the same thing in this current proceeding and that she never intended to follow through with this hearing. It notes that the applicant is withdrawing the substantive issues in her application because her expert witnesses are not available to testify. However, she never served a summons on her expert witnesses. It argues that this is a clear indication that she never intended to proceed to a hearing.

28The respondent also argues that the applicant has purposely misspent the time and resources of the respondent, the Tribunal, and the respondent’s experts who cancelled medical appointments in order to make themselves available for this hearing. It views this conduct as being unreasonable and in bad faith and seeks $3,000.00 in costs under Rule 19.6. More specifically, it seeks $1,000.00 for three appearances which occurred at the case conference and two hearing days.

29The applicant submits that she is not solely accountable for extending the time needed to adjudicate her claims. She points to the previous tolling agreements, which the respondent agreed to, and allowed for the withdraw and refiling of applications to the Tribunal. The applicant also submits that her expert witnesses were unable to attend her hearing and that she cannot be required to pay costs for circumstances that are beyond her control. The applicant further argued that no weight should be given to the fact that she never summonsed her witnesses because there is no requirement to serve a summons to a witness. In her view, she did not act unreasonably or in bad faith and should not be liable to pay costs. As well, the applicant submits that the respondent encouraged her to withdraw the application for this current proceeding and she should not be penalized with costs for doing what the respondent asked.

30In reply, the respondent submits that it never encouraged the applicant to withdraw her application and that the applicant is mischaracterizing what actually took place outside the hearing room.

31Neither party has referred to evidence which shows whether or not the respondent encouraged the applicant to withdraw this current application. Consequently, there is no basis to make a finding on this point.

32I agree with the applicant that both parties extended the time to adjudicate the applicant’s claims by entering into tolling agreements.

33However, I disagree with the applicant in regard to her conduct being reasonable for various reasons.

34There is no statutory requirement to summons a witness. Nevertheless, witnesses are routinely summonsed to ensure their attendance at a hearing. This is an indication that a party is vigorously pursing their case.

35I do not accept the applicant’s position that no weight should be given to the fact that she did not summons her expert witnesses because she did not think that it was necessary. The applicant provided no evidence of the efforts she undertook to ensure that her expert witnesses appear. Not summonsing her expert witnesses underscores the respondent’s position that the applicant did not make reasonable efforts to ensure that this hearing proceeds.

36The applicant was aware that her witnesses were not available for the hearing. Despite this, she did not withdraw her application until the second day of the hearing. Her stated reason for withdrawing this current application was to ensure that she could refile her application and proceed at the next hearing with expert witnesses.

37These circumstances were known to her before the hearing. Additionally, there was no change in circumstances that lead to the decision to withdraw. As such, I find that the applicant’s conduct is unreasonable because, in my view, she unnecessarily expended the time and resources of the respondent and the Tribunal until the second day of the hearing.

38I find that the applicant has acted in an unreasonable manner because she did not make reasonable efforts to ensure the attendance of her expert witnesses and also because she unnecessarily expended hearing time before withdrawing the application. Consequently, I further find that she is liable to pay costs.

39The respondent argues that the three appearances, namely the case conference and two hearing days, merit costs in the amount of $3,000.00 because it is entitled to $1,000.00 per appearance. The applicant made no submissions on the amount of costs.

40I disagree with the respondent’s calculations for costs.

41The respondent submits that the applicant compelled a case conference to take place in bad faith because she never intended to proceed to a hearing. In making this submission, the respondent is asking the Tribunal to speculate on the applicant’s intentions at the case conference. In my view, speculation is insufficient basis to justify costs.

42Rule 19.6 allows for up to $1,000.00 for “each full day” of attendance. The two hearing days are partial hearing days which, when combined, amount to one full day.

43The respondent emphasised the impact of the late withdrawal on the time resources spent by itself and the Tribunal, and also the impact on the expert witnesses who had to rearrange their schedules to accommodate this hearing. The applicant made no submissions on the scale of the impact caused by withdrawing the application on the second day of the hearing. I agree with the respondent that the impact is great, and therefore, find that the maximum of $1,000.00 in costs is appropriate.

44For all these reasons, I find that the applicant is liable to pay $1,000.00 in costs to the respondent.

ORDER

45The applicant is barred from proceeding to a hearing for the IRB because she failed to dispute their denial within the 2-year limitation period.

46The applicant shall pay the respondent $1,000.00 in costs.