Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-006798/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:
Jerome Hubert
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
ADJUDICATOR: Laura Goulet
APPEARANCES:
For the Applicant: Tal Eshel, Counsel
For the Respondent: James Armstrong, Counsel
HEARD: By way of written submissions
OVERVIEW
1Jerome Hubert, the applicant, was involved in an automobile accident on June 17, 2018, 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, The Dominion of Canada 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 benefits: issue 3(ii) for chiropractic services, issue, 3(iii)(a) for a chronic pain assessment, and issue 3(iii)(b) for a psychological assessment, as listed below, because the applicant did not dispute his denial within the 2-year limitation period?
SUBSTANTIVE ISSUES
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 (“MIG”) limit?
ii. Is the applicant entitled to $1,650.00 for chiropractic services proposed by Scarborough Rehabilitation Clinic in a treatment plan/OCF-18 (“plan”) dated November 1, 2018?
iii. Is the applicant entitled to the following assessments proposed by Scarborough Rehabilitation Clinic:
a. $1,989.85 for a chronic pain assessment in a plan dated June 21, 2019; and
b. $1,920.53 for a psychological assessment in a plan dated October 11, 2018?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is barred from proceeding to a hearing for the plans in dispute.
5The Tribunal does not have jurisdiction to decide whether the applicant should be removed from the MIG as a standalone issue.
6No interest is payable.
ANALYSIS
Preliminary Issue - The applicant did not dispute his denial within the 2-year limitation period
7For the following reasons, I find that the application was not filed within the limitation period.
8Pursuant to s. 56 of the Schedule, an application in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.
9The respondent submits that all the disputed plans are statute-barred.
10The respondent submitted as evidence the denial letter dated November 12, 2018 for the plan for chiropractic services, and submits that the limitation period expired on November 12, 2020. It also filed with the Tribunal the denial letter dated July 5, 2019 for the plan for a chronic pain assessment, and submits that the limitation period expired on July 5, 2021. The respondent submitted as evidence the denial letter dated October 23, 2018 for the plan for a psychological assessment, and submits that the limitation period expired on October 23, 2020.
11The respondent submits that the denial letters complied with the requirements for a clear and unequivocal denial, as set out in Smith v. Co-Operators General Insurance Co., 2002 SCC 30 (“Smith”), in that they were communicated in straightforward and clear language and described the important points of the dispute resolution process, including the timelines governing the process. The applicant did not dispute that the denial letters were clear and unequivocal, pursuant to Smith.
12Based on the evidence before me, I find that the application was commenced with respect to the three disputed plans more than two years after the respondent’s refusal to pay the amounts claimed. I also find that the respondent’s denials and the reasons for the denials are clear and unequivocal, and included a warning that the applicant had two years from the date of the denials to dispute the decision by filing an application with the Tribunal, along with specific instructions with respect to filing an application.
13The applicant relies on the Tribunal decision of Bobak v. Travelers Insurance (“Bobak”), 2022 CanLII 146 (ON LAT), submitting that no limitation period is triggered with respect to the issue of the MIG, and as such, the application cannot be statute-barred. I find that the preliminary issue in this matter deals with whether the applicant is barred from proceeding to a hearing with respect to the treatment plans, and not on the issue of whether he is within the MIG.
14The applicant further submits that since the respondent denied the plans on the basis that his injuries fell within the MIG, if the Tribunal disagrees on this issue, the denials are no longer valid and therefore the question of whether the application is statute-barred with respect to the plans is no longer relevant. The applicant does not direct me to any case law in support of this position and I find that it is not the case because, as I will discuss below, the Tribunal only has jurisdiction to decide the issue of the MIG where there are benefits in dispute. As such, the preliminary issue in this case must be addressed first.
15The applicant submits, in the alternative, that if the application was brought after the expiration of the limitation period, he is entitled to proceed to a hearing with respect to the plans in dispute by operation of s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G. (“LAT Act”), which allows the Tribunal to exercise its discretion in extending the limitation period.
The Tribunal will not exercise its discretion under s. 7 of the LAT Act
16For the following reasons, I decline to exercise my discretion under s. 7 of the LAT Act to extend the limitation period.
17In assessing whether the justice of the case requires that an extension of time be granted, the Tribunal must apply the test set out by the Divisional Court in Manuel v. Registrar, 2012 ONSC 1492 (“Manuel”). Manuel instructs the Tribunal to consider the following four factors:
i. The existence of a bona fide intention to appeal within the time limit;
ii. The length of the delay;
iii. Prejudice to the other party; and,
iv. The merits of the appeal.
18Manuel directs a holistic analysis of these factors. No single factor is determinative. The Court indicated that these factors are subject to a broader rule that an extension should not be granted unless the “justice of the case” requires it. It is the applicant’s onus to establish that there are reasonable grounds for granting an extension.
The existence of a bona fide intention to appeal within the time limit
19I find that the applicant did not demonstrate a bona fide intention to appeal within the time limit.
20The applicant submits that his intention to appeal within the appeal period is demonstrated by the fact that the claim remained active throughout that time. The applicant further submits that after the respondent denied the plans at issue, he submitted medical records to be eligible for more medical benefits. The applicant submits that he was actively engaged in all aspects of his claim and that he should not be penalized for a delay in appealing a decision that was wrongfully and improperly made.
21The respondent submits that the applicant has shown no bona fide intention to appeal within the limitation period in that he has provided no evidence of any intention to appeal between the earliest limitation date and the date he filed his application.
22I am not persuaded by the applicant’s submissions. I find that an intention to appeal is not demonstrated by the fact that he kept his claim active. The applicant did not direct me to evidence that supports his submission that he intended to appeal within the time limit. As such, I find that he did not demonstrate a bona fide intention to appeal within the time limit.
The length of the delay
23I find that there was an excessive delay in bringing the application with respect to all three plans in dispute. Specifically, the appeal for the plan for chiropractic services was brought over 2 years and 6 months past the deadline; the appeal for the plan for a chronic pain assessment was brought over one year and 10 months past the deadline; and the appeal for the plan for a psychological assessment was brought over 2 years and 7 months past the deadline.
24The applicant did not make submissions providing any reason why he did not file an application within the prescribed limitation periods. Further, there was no explanation provided for the length of the delay.
25The respondent refers to the Tribunal decision of Mai v. Aviva Insurance Company of Canada, 2022 CanLII 2664 (ON LAT) (“Mai”), where the Tribunal found a delay of more than five months to be “excessive.” The Tribunal further held that, given this length of time, there was incurable prejudice to the respondent and uncertainty would result to insurers if the statutory limitation period was disregarded. The Tribunal also noted that the respondent had been denied the opportunity to obtain evidence as to the applicant’s ongoing medical state.
26The respondent also referred to the decision of Patton v. Aviva Insurance Company of Canada, 2024 CanLII 67351 (ON LAT) (“Patton”), where the Tribunal found that a six-month delay in filing an application was “significant.”
27Although I am not bound by other Tribunal decisions, I find the reasoning with respect to delay in the Mai and Patton decisions to be persuasive. In this case, since the least amount of delay was over one year and 10 months past the deadline, I would characterize the delay as excessive.
Prejudice to the other party
28I find that the applicant has not demonstrated that an extension of the limitation periods would not cause prejudice to the respondent.
29The applicant submits that the length of the delay does not prejudice the respondent’s ability to defend against the application, a factor that was considered in the Tribunal decision of V.M.L. v. Aviva General Insurance Company (“V.M.L.”) 2020 CanLII 12745 (ON LAT).
30The applicant further submits that the respondent has not demonstrated it would be prejudiced by the granting of an extension because all the same information is available to the respondent now than would have been, had the applicant submitted his application before the expiry of any limitation period. The applicant submits that the prejudice to him by not granting an extension ought to be given considerable weight.
31I find that V.M.L. is distinguishable, as the length of the delay in that case was only 13 business days. In this case, the plan with the least amount of delay was for over 1 year and 10 months.
32Further, the Divisional Court in Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997 interpreted Manuel and held that the onus is on the party requesting an extension of the limitation period to demonstrate that the other party was not prejudiced by it, and it would be an error to reverse that onus.
33The respondent submits that this case is analogous to the Mai decision and that it would be incurably prejudiced if the limitation period were extended.
34I find that, given the excessive length of the delay, the respondent would be prejudiced by being denied the opportunity to obtain its own evidence with respect to the applicant’s ongoing medical state. As such, I find that the applicant has not demonstrated that the respondent would not be prejudiced by an extension of the limitation periods.
The merits of the appeal
35I have considered the applicant’s argument that his claim for medical benefits is not without merit in that his medical records demonstrate that the disputed plans are reasonable and necessary, and he makes submissions to that effect. However, I find that, considering the excessive delay in bringing his application, with no reason provided, and in light of the prejudice I find to the respondent should I allow the time for an extension, even if I found that there was merit to the applicant’s appeal, this would not persuade me to exercise my discretion to extend the limitation period. In these circumstances, I find that the justice of the case does not require that the extension be granted.
36For the above reasons and taking into account the justice of the case, I decline to exercise my discretion under s. 7 of the LAT Act to extend the limitation period.
Other arguments made by the applicant
37The applicant made other general arguments as follows.
38The applicant submits that the Tribunal should consider the fact that the respondent did not revisit the applicant’s entitlement to the plans in dispute following his submission of new medical evidence. The applicant submits that he did everything required of him to pursue benefits, while the respondent did not properly challenge his entitlement to benefits, despite various avenues available to it under s. 33 and s. 44 of the Schedule.
39I find these arguments unpersuasive. The respondent is not required to seek additional information pursuant to s.33 or an insurer’s examination pursuant to s.44. Further, this is not relevant to whether the applicant brought their application within the time limit once the benefit in dispute was properly denied. If the applicant believed that the respondent improperly denied his claim for benefits, an application should have been filed prior to the expiration of the limitation period.
40The applicant refers to Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 (“Tomec”) where the Court of Appeal indicated that a hard limitation period prevents the applicant from making a claim for the benefits the Schedule is intended to provide, and that such an interpretation is not consistent with consumer protection legislation.
41I note that the Court in Tomec went on to hold that the limitation period in the Schedule is subject to the rule of discoverability. I find that the Tomec decision is distinguishable. The appellant in that case was catastrophically impaired, however this status developed well after the limitation period. The appellant did not have a claim to pursue until a catastrophic impairment designation was made. The applicant in this case, however, referred in his submissions to medical records he provided to the respondent after the denials and before the expiration of the limitation periods. In these circumstances, I find that the applicant was aware of his condition during the period when he should have brought an application.
42The applicant also relies on s. 34 of the Schedule, which he says states that a claimant’s failure to comply with a time limit does not automatically disentitle the claimant to a benefit. I note that s. 34 is in Part VIII of the Schedule and relates to a person’s failure to comply with a time limit set out in that Part. Section 56 is contained in Part IX and clearly sets out that an application shall be commenced within two years after the insurer’s refusal to pay the amount claimed.
43For the above reasons, I find that applicant is barred from proceeding to a hearing for the treatment plans in dispute.
Applicability of the Minor Injury Guideline
44I find that the Tribunal does not have jurisdiction to decide the issue of the MIG as a standalone issue.
45The applicant relies on the Tribunal decision of Bobak in submitting that no limitation period is triggered with respect to the issue of the MIG. I find that Bobak does not assist the applicant. Although I am not bound by other decisions of the Tribunal, I agree with the reasoning in this decision. The Tribunal held that being classified under the MIG is not a refusal to pay the amount claimed. The Tribunal further held that it does not have jurisdiction to hear the issue of the MIG unless it is tied to a benefit that requires its determination. The Tribunal refers to s. 280 of the Insurance Act, RSO 1990, c I.8, which states that the Tribunal has jurisdiction to resolve disputes in respect of an insured person’s entitlement to or amount of statutory accident benefits. The MIG is not a statutory accident benefit; it is a guide that defines what is a minor injury and the treatment framework for medical providers. As set out in Bobak, when a person’s injuries are categorized as minor, non-catastrophic, or catastrophic, it allows them to apply for benefits within that monetary tier but does not entitle them to that monetary limit.
46I find that since a determination of whether a person is in the MIG does not entitle that person to benefits, it is not a dispute pursuant to s. 280 of the Insurance Act. As such, I find that the Tribunal does not have jurisdiction to decide this matter unless a benefit is tied to it that requires its determination. Since I have found that the applicant is barred from proceeding to a hearing for the treatment plans in dispute, I find that I do not have jurisdiction to decide the issue of whether the applicant should be removed from the MIG as a standalone issue.
Interest
47Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.
ORDER
48For the above reasons, I find:
i. The applicant is barred from proceeding to a hearing for the plans in dispute.
ii. The Tribunal does not have jurisdiction to decide the issue of whether the applicant should be removed from the MIG as a standalone issue.
iii. No interest is payable.
iv. The application is dismissed.
Released: March 14, 2025
Laura Goulet
Adjudicator