Citation: Matthews v. Intact Insurance Company, 2025 ONLAT 23-012513/AABS

Licence Appeal Tribunal File Number: 23-012513/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:

Donna RR Matthews

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Matthew Frontini

APPEARANCES:

For the Applicant:

Robin Russell, applicant’s spouse

For the Respondent:

Doug Wallace, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Donna Matthews, the applicant, was involved in an automobile accident on January 28, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2Preliminary Issues: The preliminary issue to be decided is: Is the applicant barred from proceeding to a hearing for the medical and rehabilitation benefits claimed in this application because the applicant failed to dispute their denial within the two-year limitation period?

3Substantive Issues: The substantive issues in dispute are:

a. Is the applicant entitled to $12,119.04 which is the balance remaining in the $50,000 medical/rehabilitation limits?

b. Is the applicant entitled to $3,609.92 for chiropractic services, proposed by Ian Horseman in a treatment plan/OCF-18 (“plan”) dated July 16, 2018, and denied August 29, 2018?

c. Is the applicant entitled to $3,609.92 for chiropractic services, proposed by Ian Horseman in a plan dated October 9, 2019, and denied December 13, 2019?

d. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

4I find that:

a. The applicant is barred from proceeding to a hearing for the medical and rehabilitation benefits claimed in this application because the applicant failed to dispute their denial within the 2-year limitation period.

b. The applicant is not entitled to $12,119.04 which is the balance remaining in the $50,000 limit for medical and rehabilitation limits.

c. The respondent is not liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.

d. The applicant is not entitled to interest on any overdue payment of benefits.

ANALYSIS

Preliminary Issue: The applicant is barred from proceeding to a hearing for the medical benefits claimed in this application

5For the following reasons, I find that the applicant is barred from proceeding with her application for the medical/rehabilitation benefits claimed in this application, set out in subparagraphs 3(b) and (c) above, because she failed to commence her application with the Tribunal within the two-year limitation period.

6The respondent raised a preliminary issue that the applicant was barred from proceeding to a hearing for the medical and rehabilitation benefits claimed in this application because the applicant failed to dispute their denial within the two-year limitation period provided by the Schedule. This preliminary issue pertains to the issues identified in subparagraphs 3(b) and (c) above.

7Section 51 of the Schedule provides that an application under subsection 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. A denial meeting the criteria set out by the Supreme Court of Canada in Smith v. Co-operators General Insurance Co., 2002 SCC 30 (“Smith”) at para 14, will trigger the commencement of the limitation period under the Schedule. The limitation period starts when an insurer gives a clear and unequivocal denial of a benefit that is accompanied by notice of the two-year period for commencing the dispute resolution process. The insurer must communicate the denial in clear and straightforward language directed to the unsophisticated person.

8As the Ontario Court of Appeal held in Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111 even legally incorrect reasons for a denial will not prevent the commencement of the limitation period. Citing its earlier decision in Turner v. State Farm Mutual Automobile Insurance Co. (2005), the court in Sietzema noted at para. 13:

i. The purpose of the requirement to give reasons is to permit the insured to decide whether or not to challenge the cancellation. If the reasons given are legally wrong the insured will succeed in that challenge. Requiring that the reasons be legally correct goes beyond both the requirement in the relevant regulation, and the purpose of such a notice.

9A denial need not contain specific wording. It must simply communicate that the benefit is not payable: see G.P. and Aviva Insurance Company of Canada, 2017 CanLII 77379 (ON LAT) at para. 27.

The position of the parties

10The respondent submits that the denials issued to the applicant complied with the requirements in Smith.

11The applicant argues that the respondent’s preliminary issue fails on four distinct grounds: (i) because the respondent has not raised this preliminary issue in respect of a different application before the Tribunal pertaining to a different accident, the respondent is estopped from relying on it in this application; (ii) the applicant was never provided notice of the denials; (iii) the reasons contained in the denials were incorrect; and (iv) the denials did not comply with s. 38(8) of the Schedule. Below I will describe the denials and then I will address each of the applicant’s arguments in turn below before ruling on the preliminary issue itself.

12I have carefully considered the parties’ submissions and the documents in evidence before me. For each benefit in dispute, I find that the respondent issued a clear and unequivocal denial of payment communicated in straightforward language directed to an unsophisticated (to use the language in the jurisprudence) or lay person. Each denial was accompanied by notice of the two-year period for commencing the dispute resolution process. I also find that the applicant had notice of these denials. The denials were Smith-compliant and triggered the two-year limitation period under the Schedule.

13Below I will describe the denials and then address the parties’ submissions.

The denial letters dated August 29, 2018, and December 13, 2019

14The relevant denials are dated August 29, 2018, for a treatment plan for chiropractic services dated July 16, 2018, and December 13, 2019, for a treatment plan for chiropractic services dated December 9, 2019. In the case of the denial for the August 29, 2018, treatment plan, the applicant applied to the Tribunal 3 years, 1 month, 19 days later. In the case of the denial for the treatment plan for chiropractic services dated December 9, 2019, the applicant applied to the Tribunal 3 years, 10 months, 5 days later.

15The August 29, 2018, denial stated that the applicant had already incurred, or been pre-approved for treatment that had not yet been billed, that collectively reached the maximum medical and rehabilitation coverage limit available to the applicant. The denial included the treatment plan denied and an addendum outlining the applicant’s right to dispute the denial within two years from the date of denial. The denial indicated that it was mailed to the applicant and faxed to the applicant’s counsel at the time.

16The December 13, 2019, denial is similar. It provided the identical reason for the denial, included the treatment plan being denied and the applicant’s right to dispute addendum. This denial was also mailed to the applicant as well as being faxed to the applicant’s counsel at the time, and also faxed to the treatment provider that authored the treatment plan.

The respondent is not estopped from raising the preliminary issue

17I find that the applicant has not established that the respondent is unable to raise this preliminary issue because it did not raise it in a separate proceeding.

18The applicant’s argument is to the effect that the applicant has always viewed these insurance claims arising from these two different accidents as being “tied together since they day the were taken on.” Given this subjective view, the applicant asserts that the respondent cannot argue the limitation applies in one application if it has not also asserted this preliminary issue in the other application.

19The applicant has not provided any support in law for the proposition that the respondent cannot raise this preliminary issue. As noted by the respondent, these two applications pertain to different accidents, and they involve different issues.

20I find that the respondent identified the preliminary issue at the case conference, it was included in the CCRO dated February 22, 2024, and it is properly before me at this hearing.

The applicant was provided with the denials

21I find that the evidence establishes that the applicant had notice of the denials dated August 29, 2018, and December 13, 2019.

22The applicant’s argument in this regard is that neither of the denials at issue were received. The applicant argues that one of the denials was mailed to the applicant’s former address, even though the applicant had advised the respondent of her new address. The applicant also argues that there is a typographical error in the address of the second denial and therefore it was not received.

23The respondent notes that the denials in question were also copied to the applicant’s counsel, and, in the case of the December 13, 2019 denial, to the treatment provider that prepared the denied treatment plan. The respondent relies on this fact to impute knowledge of the denial to applicant.

24I find that the applicant had knowledge of the denials. It is undisputed that the applicant was represented by counsel at the date of these denials.

25Section 64(2)(a) of the Schedule provides that any notice required or permitted under the Schedule can be given to a person by faxing the document to the person or to the solicitor or authorized representative, if any, of the person in accordance with subsection (19). The denials dated August 29, 2018, and December 13, 2019 were both faxed to both the applicant’s solicitor, and, in the case of the December 13, 2019 denial, an authorized representative, being a regulated health professional, pursuant to subsection (3). Accordingly, these denials were given to the applicant in accordance with the requirements of the Schedule.

26Moreover, I find that the evidence the applicant relies on in this hearing demonstrates that she had notice of the August 29, 2018, denial. In support of other arguments, the applicant relies on correspondence from her lawyer to the respondent, dated May 9, 2019. Given that the applicant, through her lawyer, was seeking clarification of the August 29, 2018, denial and the amounts paid by the respondent, I find that she had knowledge of the August 29, 2018 prior to May 9, 2019.

27In sum, I find that the applicant had notice of both denials.

The applicant’s arguments regarding the correctness of the denials is not a bar to the preliminary issue

28Much of the applicant’s argument, both substantively and in respect of the preliminary issue, is that the basis of the respondent’s denials was factually incorrect. In this regard, the applicant devotes substantial argument to referencing various communications between the parties regarding treatment plans that had been approved, requests for summaries and amounts paid-to-date and accusations that the respondent acted in bad faith.

29These arguments do not assist the applicant with respect to the preliminary issue. They are not relevant to the issue of whether the denials comply with section 38(8) of the Schedule, and therefore trigger the limitation period for the denials to be disputed before the Tribunal.

30The applicant’s overarching argument is that because the respondent’s determination that policy limits had been reached was factually, and by extension, legally, incorrect, the respondent’s denial was deficient. The essence of this argument is that a legally incorrect reason for a denial is the same as not providing a reason at all, and thereby renders the denial deficient and contrary to s. 38(8) of the Schedule.

31This argument cannot succeed. The applicant mistakenly conflates the legal requirements for a valid denial with the substantive legal requirements for denying a benefit. As the Court of Appeal highlighted in Turner and in Sietzema, the first set of requirements address the sufficiency of the notice an insurer gives to an insured person of a dispute and the process for resolving that dispute. The latter set of requirements can only be determined through that dispute resolution process.

The denials are clear and unequivocal

32I find that the denials were clear and unequivocal, thereby triggering the commencement of the limitation period in accordance with Smith.

33In her reply submissions, the applicant raises, for the first time, the argument that the denials do not comply with s. 38(8) of the Schedule. Although not clearly articulated, the applicant’s argument appears to be that because s. 38(8) requires an insurer to provide “…the medical reasons and all of the other reasons…” for a denial, the absence of any medical reasons in the denials at issue render them noncompliant. That is, the respondent was required to provide some medical reason, even if none exist, in addition to all other reasons for a denial to comply with s. 38. The logical conclusion to the applicant’s argument, if it were to be accepted, is that the denials were nullities and did not trigger the commencement of the limitation period.

34I am not persuaded by the applicant’s submissions. The denials in this case meet that statutory purpose. The applicant had clear notice of the reason the respondent denied these treatment plans. This is highlighted by the conduct of the applicant’s counsel contacting the respondent in 2019 in respect of one of these denials. While the applicant has focused on the incorrectness of the denials, she had the necessary information to dispute them and commence an application for these denied benefits within the statutory timelines.

The applicant is barred from proceeding to a hearing for issues ii and iii and there are no grounds to extend the limitation period

35I find that the applicant is barred from proceeding to a hearing for the treatment plans set out in subparagraph 3(b) and (c) above because the applicant failed to dispute their denial within the two-year limitation period.

36While not raised by the applicant, I have also considered the application of s. 7 of the Licence Appeal Tribunal Act, S.O. 1999 c. 12 Sched. G. (“LAT Act”) to preserve her claims. Section 7 provides:

(a) Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of the Tribunal under section 11 or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,

(b) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and

(c) give the directions that it considers proper as a result of extending the time.

37The exercise of the Tribunal’s discretion to extend a limitation period pursuant to s. 7 of the LAT Act is informed by Divisional Court’s guidance in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492. This exercise involves a consideration of four so-called Manuel factors: the existence of a bona fide intention to appeal; the length of the delay; prejudice to the other party; and the merits of the appeal.

38While I have discretion to extend a limitation period pursuant to s. 7 of the LAT Act, I find the applicant did not raise this issue and thus I have no submissions to assist in my analysis of the Manuel factors. However, based on the submissions and evidence before, I can make a finding on the merits of the appeal as they relate to the two treatment plans in dispute.

39To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable. In all cases, the burden is on the applicant to establish on a balance of probabilities that each treatment plan in dispute is reasonable and necessary.

40The applicant’s submissions and evidence do not address any of the information required to assess the reasonableness and necessity of the treatment plans in dispute. Accordingly, the applicant has not provided submissions and evidence that would meet her burden, indicating that this appeal is unlikely to be meritorious. As mentioned previously, I have not been provided with any submissions regarding any of the Manuel factors. As such, the applicant has not established that any of the Manuel factors support that there are reasonable grounds to extend the limitation period.

41Given the submissions and evidence before me, I find that it would not be in the interests of justice to exercise my discretion to extend the limitation period pursuant to s. 7 of the LAT Act.

The applicant is not entitled to a payment reflecting the balance remaining for the medical and rehabilitation benefits under the policy limit

42While the preliminary issue has disposed of the applicant’s claims for the treatment plans, the other relief that the applicant is seeking is a payment reflecting the balance remaining for medical and rehabilitation benefits.

43I find that the applicant has not established that she is entitled to a payment reflecting the balance remaining for medical and rehabilitation benefits under the policy. The applicant has not provided any authority or argument as to how the Tribunal could make such an order.

44The Tribunal’s jurisdiction is derived from s. 280(2) of the Insurance Act, RSO 1990, c I.8, which pertains to the resolution of disputes regarding statutory accident benefits in accordance with the Schedule. Where an insurer denies a benefit, the insured person can apply to the Tribunal for resolution of that dispute.

45The applicant has not identified any provision in the Schedule or other authority in support of the proposition that an insured person is entitled to funds up to the limits on funding for medical and rehabilitation benefits, without reference to a specific claim for benefits. The funding limits are not a benefit under the Schedule, and the Schedule does not contemplate such a payment. The Tribunal is a creature of statute. Given that the applicant has not pointed to statutory authority for the remedy sought, I find that the Tribunal does not have the jurisdiction to make such an order.

46I find that the applicant has not established that she is entitled to a payment of $12,199.04 reflecting the balance remaining for the medical and rehabilitation benefits under the policy limit.

Interest

47Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is not entitled to any benefits in dispute, she is not entitled to interest.

Award

48The applicant sought an award under s. 10 of Reg. 664. Under 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.

49As I have found that the applicant is not entitled to any of the disputed benefits, I find that the applicant has not established that she is entitled to an award.

ORDER

50I find that:

i. The applicant is barred from proceeding to a hearing for the benefits described in subparagraph 3(b) and (c) above, as sought in this application because applicant failed to dispute their denial within the two-year limitation period.

ii. The applicant is not entitled to $12,119.04 which is the balance remaining in the $50,000 limit for medical and rehabilitation limits.

iii. The respondent is not liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.

iv. The applicant is not entitled to interest on any overdue payment of benefits.