Licence Appeal Tribunal File Number: 24-004541/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:
Getu Hailu
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Lisa Holland
APPEARANCES:
For the Applicant: Zaid Patel, Paralegal
For the Respondent: David Raposo, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Getu Hailu, the applicant, was involved in an automobile accident on September 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 the respondent, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The preliminary issues to be decided are:
i. Is the applicant bared from proceeding to a hearing for a non-earner benefit (“NEB”) of $185.00 per week from September 26, 2019 to September 4, 2021, because the applicant failed to dispute their denial within the two-year limitation period?
ii. Does the Tribunal have jurisdiction under s. 280 of the Insurance Act, RSO 1990 in this matter?
3The Case Conference Report and Order (“CCRO”) dated August 19, 2024, indicates that the preliminary issue is whether the Tribunal has jurisdiction under s. 280 of the Insurance Act, RSO 1990 in this matter. However, in the applicant’s submissions, he indicates that the preliminary issue is whether the applicant is statute-barred from pursuing an NEB on the basis of section 56.
4The respondent indicates in its written submissions that there are two preliminary issues, whether the applicant is statute-barred from pursuing an NEB due to a limitation period in section 56, and whether the Tribunal has jurisdiction to determine whether the MIG can be adjudicated as a standalone issue. Therefore, on consent of the parties, I have changed the description of the preliminary issues in dispute set out above.
SUBSTANTIVE ISSUES
5The substantive issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to a NEB in the amount of $185.00 per week from September 26, 2019 to September 4, 2021?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6I find that the applicant is statute-barred from proceeding with his claim for an NEB.
7The Tribunal does not have jurisdiction to determine the applicant’s MIG status in the absence of an underlying and connected dispute pertaining to a claim for medical benefits. As a result, I have not considered the MIG issue in this decision.
8No interest is payable.
9The respondent is not liable to pay an award to the applicant.
ANALYSIS
Preliminary Issues
The applicant is statute-barred from pursuing his claim for an NEB
10I find that the respondent’s denial of the NEB claim was valid and triggered the s. 56 two-year limitation period.
11Under s. 56 of the Schedule, an applicant has two years after the insurer’s refusal to pay the amount claimed to dispute the denial. The limitation period is triggered by a clear, unequivocal denial in straightforward and clear language directed towards an unsophisticated person, as established in Smith v. Co-Operators General Insurance Company, 2002 SCC 30.
12The applicant filed his application to the Tribunal on April 10, 2024, which is beyond the two-year limitation period from the date when the respondent first denied his entitlement to an NEB on October 3, 2019.
13However, section 7 of the Licence Appeal Tribunal Act, 1999, c. 12, Sched. G (LAT Act), affords the Tribunal statutory discretion to extend the limitation period prescribed by the Schedule if it is satisfied that there are reasonable grounds for granting such relief. In determining whether to grant an extension, the Tribunal examines four factors: i) the existence of a bona fide intention to appeal within the appeal period; ii) the length of the delay; iii) prejudice to the other party; and iv) the merits of the appeal. See Manuel v. Ontario (Registrar, Motor Vehicle Dealers Act), 2012 ONSC 1492.
14The respondent argues that the applicant submitted an Application for Accident Benefits (“OCF-1”) dated September 25, 2019, which indicated that he returned to his self-employment as a taxi driver after the accident. The respondent submits that it also received a Disability Certificate (“OCF-3”) dated September 26, 2019, which indicated that the applicant has a substantial inability to return to his pre-accident employment, and he sustained a complete inability to carry on a normal life.
15The respondent provided an Explanation of Benefits (“EOB”) dated October 3, 2019, to the applicant, which requests clarification which specified benefit the applicant is claiming because there is a discrepancy between the OCF-1 and the OCF-3 regarding whether he has returned to work. A clear reason for the denial was given, being that the applicant was not entitled to an NEB, because he was entitled to an income replacement benefit (“IRB”) instead. The respondent stated that they have not received medical documentation in support of a complete inability to carry on a normal life, therefore, the applicant is not entitled to NEBs. The respondent also made further requests for medical and income documentation under s. 33.
16The respondent submits that the limitation period was triggered by its initial denial dated October 3, 2019, which was a clear and unequivocal denial of the applicant’s NEB claim, and therefore, the limitation period ended on October 3, 2021. The respondent submits that it was not obligated to request an election form because the applicant stated on his OCF-1 that he was working at the time of the accident, and he had returned to work. Therefore, since he may qualify for an income replacement benefit, he is not eligible for an NEB.
17The applicant submits that the October 3, 2019 denial is non-compliant with s. 35 and s. 36 of the Schedule, because it did not include a notice of election request, or provide medical or any other reasons for its denial of an NEB. The applicant argues that since he never made an election, there has not been a proper denial of a specified benefit.
18Section 12(1)1 of the Schedule indicates that the insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies the condition that the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.
19I find that the applicant has not explained how he is eligible for an NEB. The applicant does not refer me to his OCF-3, nor does he explain the discrepancies between the OCF-1 and the OCF-3 regarding his return-to-work status when the OCF-3 was submitted. I find that the respondent’s October 3, 2021 denial was clear and unequivocal, in stating that since the applicant was working at the time of the accident, he may qualify for an IRB, therefore, he is not eligible to claim an NEB. Further, I find that a denial may be legally incorrect but still trigger the limitation period, as stated in Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111, at paragraph 13.
20I disagree that the respondent is precluded from denying a specified benefit prior to the receipt of an election form (“OCF-10”) which supports the applicant’s entitlement to an NEB. I am persuaded by the decision cited by the respondent in Ozor v. Aviva Insurance Company, 2022 CanLII 106429 (ON LAT), where the Tribunal found that a denial stating that a claimant is not entitled to an NEB because they were eligible for an IRB, is a valid denial. I find that the respondent provided a clear and unequivocal denial in the October 3, 2019 letter and right to dispute forms that were provided.
21The parties made no submissions regarding the delay or whether the Tribunal should exercise its jurisdiction to extend the limitation period under s.7 of the LAT Act. However, despite the lack of submissions, I would decline to exercise my discretion in any event, given the extensive delay.
22I find that the applicant may not proceed with his claim for an NEB.
Does the Tribunal have jurisdiction to make a MIG determination?
23I find that the Tribunal does not have jurisdiction to make a MIG determination in this matter. While I have found that the applicant’s claim for an NEB is statute-barred, there is no underlying dispute relating to a benefit that is itself dependent on a determination of whether the MIG applies. The MIG is therefore a standalone issue here, which is not a dispute over which the Tribunal has jurisdiction.
24The respondent argues that the Tribunal does not have jurisdiction to hear the issue of whether the applicant’s injuries fall within the MIG, because there are no treatment plans or other medical and rehabilitation benefits in dispute. In addition, the respondent argues that the applicant is barred from submitting further treatment plans beyond 260 weeks from the date of the accident pursuant to s. 20 of the Schedule.
25The applicant made no submissions in response to this preliminary issue.
26I find that the Schedule defines the MIG at s. 3(1) as a guideline, and it does not entitle an insured person to apply for a MIG determination on its own. Therefore, a MIG determination is not a dispute that can be adjudicated by this Tribunal as a standalone matter. In order for the Tribunal to have jurisdiction, a MIG application must be accompanied by a related dispute for entitlement to statutory accident benefits.
Interest and Award
27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, interest is not payable.
28Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. I find an award is not appropriate because the applicant has not met his onus to explain how the respondent unreasonably withheld or delayed the payment of benefits. Thus, an award under s.10 of Reg. 664 is not warranted.
ORDER
29For the reasons set out above, I find that:
i. The applicant is statute-barred from proceeding with his claim for an NEB.
ii. The Tribunal does not have jurisdiction to determine the applicant’s MIG status in the absence of an underlying and connected dispute pertaining to a claim for medical benefits. As a result, I have not considered the MIG issue in this decision.
iii. Interest is not payable and the respondent is not liable to pay an award.
iv. The application is dismissed.
Released: December 8, 2025
Lisa Holland
Adjudicator