Citation: Balakumar v. Pembridge Insurance, 2025 ONLAT 23-002178/AABS-A

Licence Appeal Tribunal File Number: 23-002178/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:

Sivashankar Balakumar

Applicant

and

Pembridge Insurance

Respondent

AMENDED DECISION

VICE-CHAIR: Tyler Moore

APPEARANCES:

For the Applicant: Thomas Zwiebel, Counsel

For the Respondent: Diana Oliveira, Counsel

HEARD: In Writing

OVERVIEW

1Sivashankar Balakumar, the applicant, was involved in an automobile accident on July 4, 2020, 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, Pembridge Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The preliminary issue in dispute is:

i. Is the applicant barred from proceeding with substantive issue ii. because he failed to dispute the respondent’s denial within two years, pursuant to s. 56 of the Schedule?

3The 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 limit (“MIG”)?

ii. Is the applicant entitled to $3,188.12 for physiotherapy services, proposed by Pillar Banag in a treatment plan/OCF-18 dated January 9, 2021?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant is statute barred from proceeding with substantive issue ii. pursuant to s. 56 of the Schedule.

5I find that the issue of MIG is moot as a standalone issue.

6The applicant is not entitled to interest.

ANALYSIS

Preliminary Issue

7I find that the applicant did not disputed the treatment plan for physiotherapy services within two years of the respondent’s denial, pursuant to s. 56 of the Schedule.

8Section 56 of the Schedule sets out that an application under s. 280(2) of the Insurance Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed. To trigger the running of the limitation period, the insurer must provide clear and unequivocal notice of a refusal to pay benefits. In Smith v. Co-Operators Gen. Ins. Co., the Supreme Court of Canada articulated the requirements that an insurer must satisfy for there to be a proper denial of benefits: straightforward and clear language to inform a person of the dispute resolution process; language directed towards an unsophisticated person; identification of the person’s rights to dispute the denial; and the relevant time limits that govern that process.

9Section 7 of the Licence Appeal Tribunal Act, 1999 (“LAT Act”) allows the Tribunal to extend a limitation period. In considering whether to exercise its discretion to extend the limitation period, the Tribunal must consider the following four factors set out in Manuel v. Registrar, 2012 ONSC 1492, to determine if the justice of the case requires the extension:

a. A bona fide intention to appeal within the limitation period;

b. The length of the delay;

c. Prejudice to the other party; and

d. Merits of the appeal.

10The applicant submits that the actual denial date of the treatment plan is March 10, 2021, as per the explanation of benefits. The applicant also submits that the s. 44 assessment reports relied upon by the respondent in its denial of the treatment plan, are both dated February 24, 2021, and were attached to the explanation of benefits dated March 10, 2021. The applicant questions how the respondent can submit that it denied a treatment plan on January 21, 2021 if the medical assessment reports that have been relied upon were only made available on February 24, 2021. The applicant also submits that the respondent’s s. 44 assessments were to form a clear denial with respect to substantive issue ii.

11The respondent submits that the explanation of benefits related to substantive issue ii. dated January 21, 2021 was clear and unequivocal and the applicant’s time to dispute the denial expired on January 21, 2023. The respondent also submits that the application to the Tribunal dated February 24, 2023 was not served on the respondent until March 14, 2023, and only after a copy was forwarded by the Tribunal.

12I find that while an insurer can maintain their denial after the s. 44 assessments are conducted, it is the first refusal to pay that starts the limitation period. I rely on Landa v. The Dominion of Canada General Insurance Company, 2024 ONSC 2871 to support that a limitation period is triggered with the first valid refusal and that insurer’s examinations do not detract from a valid denial or restart the limitation period.

13I find that the respondent’s explanation of benefits dated January 21, 2021 is valid and provides a clear and unequivocal refusal to pay the amount claimed. As a result, it triggered the start of the two-year limitation period for substantive issue ii., which ended on January 21, 2023. The applicant applied to the Tribunal on February 24, 2023, and was therefore just over one month late.

14Pursuant to s. 7 of the LAT Act, the Tribunal has the statutory discretion to extend the two-year limitation based on the four factors outlined in Manuel v. Registrar, 2012 ONSC 1492. Apart from the applicant’s submission that the limitation period should have been triggered by the explanation of benefits dated March 10, 2021, he has not discharged his 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 his favour in order to extend the limitation period. Therefore, I decline to do so.

15Accordingly, I find that the applicant is barred from proceeding to a hearing on substantive issue ii. pursuant to s. 56 of the Schedule.

Substantive Issues

MIG

16The 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 expedite access to rehabilitation for insureds who sustain predominantly minor injuries in automobile accidents. Without any treatment plans in dispute, the issue of MIG is moot.

Interest

17Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having concluded that no benefits are payable, it follows that no payments are overdue, and no interest is payable.

ORDER

18The applicant is statute barred from proceeding with substantive issue ii. pursuant to s. 56 of the Schedule.

19I find that the issue of MIG is moot as a standalone issue.

20The applicant is not entitled to interest.