Georgievski v. Wawanesa Mutual Insurance Company, 2025 CanLII 35942

Citation: Georgievski v. Wawanesa Mutual Insurance Company, 2025 ONLAT 24-010588/AABS-PI

Licence Appeal Tribunal File Number: 24-010588/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:

Melanie Georgievski

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Alex Taghavi, Counsel

For the Respondent: Jonathan Heeney, Counsel

HEARD: By way of written submissions

OVERVIEW

1Melanie Georgievski, the applicant, was involved in an automobile accident on April 29, 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, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2A case conference was held on January 16, 2025 where a number of substantive issues, including entitlement to Income Replacement Benefits (“IRBs”), were set to be heard at a videoconference hearing beginning on July 7, 2025. At the case conference the respondent also raised a preliminary issue requesting that the applicant be barred from proceeding to the substantive hearing on the issue of IRB entitlement. The respondent did not raise a preliminary issue with respect to the remaining substantive issues in dispute. As such, this preliminary issue hearing on whether the applicant could proceed with her IRB claim, was set to be heard prior to the videoconference hearing on the substantive issues.

PRELIMINARY ISSUE

3The preliminary issue to be decided is:

1. Is the applicant barred from proceeding to a hearing on the issue of IRBs because the applicant failed to dispute their denial within the 2-year limitation period?

RESULT

4I find that the applicant is barred pursuant to s. 56 of the Schedule from proceeding to the substantive hearing on the issue of IRB entitlement because she failed to dispute their denial within the 2-year limitation period. The limitation period should not be extended.

PROCEDURAL ISSUES

Applicant’s Motion to file affidavit evidence

5After the parties filed their written submissions for this preliminary issue hearing, the applicant filed a Notice of Motion requesting that she be permitted to file two affidavits into evidence. In the alternative, she requests that the Tribunal “not draw an adverse inference from the Applicant’s failure to submit affidavits” as evidence in this proceeding.

6In paragraph 2 of the respondent’s reply submissions for the preliminary issue hearing, the respondent argued that the applicant had not submitted any evidence to support her position that she had not received the respondent’s denial notice. The respondent noted that “(t)he applicant has not delivered an affidavit.”

7While the applicant concedes that at the case conference she agreed that affidavits would not be submitted as evidence in this hearing, she argues that the respondent is unfairly exploiting the absence of affidavits. The applicant submits that it was a procedural agreement between the parties that neither party would file affidavits. The respondent’s assertion in its submissions that her claim that she did not receive the denial letter should be given “no weight” due to the absence of an affidavit, is prejudicial and strategically exploitative. The applicant requests that the Case Conference Report and Order (“CCRO”) be varied so that she can now submit affidavits to challenge the respondent’s assertion that the letter was received.

8The applicant’s request to file two new affidavits into evidence is denied. The applicant does not dispute that at the case conference, she agreed that no affidavits would be submitted as evidence for this hearing. The applicant did not bring a motion in the period before the hearing to request permission to file affidavits, nor did she submit affidavit evidence with her hearing submissions. Rather, the affidavits were filed after both parties had provided their submissions and the respondent filed its reply submissions. I find that the respondent would suffer significant prejudice if the affidavits were admitted into evidence at this late stage, as it would not have the opportunity to cross-examine, or even reply to the affidavits.

9However, I agree with the applicant that her failure to provide an affidavit with her preliminary issue submissions does not mean that “no weight” should be given to her submissions on the issue of whether the denial notice was received. Accordingly, I agree with the applicant that no adverse inference should be drawn from her failure to provide an affidavit as evidence in these proceedings.

10In her reply motion submissions, the applicant requested costs in relation to the motion. She submits that the respondent made “bad faith efforts” to ensure that her evidence was not heard. I find that the applicant has not established that costs are warranted. I do not find that the respondent’s opposition to the late-filed affidavits are evidence of conduct that is unreasonable, frivolous, vexatious, or in bad faith pursuant to Rule 19.1 of the Licence Appeal Tribunal Rules, 2023. The applicant has not supported her request for costs with specific submissions or evidence. In these circumstances, no costs are awarded

ANALYSIS

Law

11Section 56 of the Schedule provides that an application to dispute a denial of a benefit shall be commenced within two years of the insurer’s refusal to pay.

12Section 7 of the Licence Appeal Tribunal Act, 1999 (“LAT Act”) allows the Tribunal to extend a limitation period for filing an appeal. 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:

i. The existence of a bona fide intention to appeal within the limitation period; ii. The length of delay; iii. Prejudice to the other party; and iv. Merits of the appeal.

13The onus is on the applicant to establish reasonable grounds for an extension under s. 7 of the LAT Act.

Background and Parties’ Positions

14The applicant was involved in a motor vehicle accident on April 29, 2019. The respondent initially began paying IRBs, however, after conducting s. 44 assessments on post-104 week IRBs, the respondent terminated IRB payments as of October 18, 2021. The applicant submitted an application to the Tribunal on August 23, 2024 disputing a number of benefit denials. However, the application did not include IRBs as an issue in dispute. At the case conference on January 16, 2025, the issue of entitlement to IRBs was raised, and added as an issue in dispute to the application.

15The respondent submits that the applicant is well-outside the two-year limitation period for disputing the IRB denial. It argues that IRBs were terminated by a denial letter dated October 4, 2021. However, the first time the applicant sought to add the issue of IRB entitlement was at the case conference on January 16, 2025, more than three years after the termination of IRBs and more than 15 months after the expiration of the limitation period. The respondent submits that its denial letter terminating IRBs was clear and unequivocal, outlined the results of its s. 44 assessments and enclosed the reports. The letter further provided information on the two-year limitation to dispute the denial. As such, the respondent argues that the applicant should be barred from proceeding with the issue of IRB entitlement pursuant to s. 56 of the Schedule.

16The applicant argues that she and her counsel did not receive the October 4, 2021 denial letter. She notes the respondent’s submissions that multiple attempts to fax the letter to her counsel had failed. Rather, the applicant submits that she and her counsel received a subsequent letter dated October 8, 2021. However, this letter simply enclosed the various s. 44 reports but did not deny the IRB benefit, outline the dispute resolution process or provide medical and other reasons for the denial. Since no valid denial was provided by the respondent, the applicant argues the limitation period was never engaged and that she should not be barred from proceeding with her IRB claim.

17The applicant further argues that the doctrine of discoverability applies to the present matter. She relies on the Ontario Court of Appeal decisions Tomec v. Economical Insurance Company, 2019 ONCA 882 and The Personal Insurance Company v. Tagoe, 2024 ONCA 894, to argue that the limitation period for disputing her IRB claim only began when she realized that she was unable to return to any form of employment. This did not happen until September 25, 2023, when she was found to be catastrophically impaired by her assessors. As such, the applicant submits that she was not in breach of the two-year limitation period.

Principle of Discoverability

18I find that the applicant has not established that the two-year limitation period to dispute her IRB claim began on September 25, 2023 rather than October 2021, due to the common law doctrine of discoverability.

19While I agree with the applicant that the Court of Appeal decision The Personal Insurance Company v. Tagoe establishes that the doctrine of discoverability can apply to IRB claims, I find that this decision is distinguishable from the present matter. In Tagoe, the Court of Appeal dismissed the appeal from the Divisional Court decision, which found that at the time of the respondent’s pre-emptive denial of IRBs in May 2016, the claimant did not meet the threshold eligibility criterion for IRBs and had not applied for the benefit. Rather, he had continued to work initially after the accident, until he stopped 16 months later after his medical condition deteriorated. The Court held that a claimant could not apply for IRBs before he was eligible for them, and his claim for IRBs only became discoverable after he became eligible to receive the benefit.

20In the present matter, the applicant has not provided any submissions or evidence to establish that she was ineligible for IRBs or had not applied for the benefit, at the time of the denial in October 2021. This is not a situation where the respondent pre-emptively denied IRBs. Rather, the evidence establishes that the applicant had been receiving IRBs until the respondent terminated the benefit after conducting s. 44 assessments. Accordingly, I do not find that the findings in Tagoe are applicable in this case.

21Moreover, I am not persuaded by the applicant’s argument that she was unaware of her entitlement to post-104 week IRBs, until she was found to be catastrophically (“CAT”) impaired by her assessors. The applicant argues that it was only once she received her CAT report that she realized she would be unable to return to any form of employment. However, I agree with the respondent that IRB entitlement is an independent determination from that of a CAT impairment, with different legal tests. There is no requirement that a claimant be CAT in order to meet the test for post 104 week IRBs. Further, the applicant references her CAT assessors’ reports that she had previously made attempts to return to work which were not successful. As such, the applicant was previously aware of her inability to maintain employment. I am not persuaded that the applicant could only become aware of her inability to work once her assessors found her to be CAT.

Did the applicant fail to dispute the denial within the 2-year limitation period?

22I find that the applicant is statute-barred pursuant to s. 56 of the Schedule from proceeding with the issue of IRB entitlement as she failed to dispute the denial within the two-year limitation period.

23The applicant does not dispute that the first time she raised the issue of IRB entitlement was at the January 16, 2025 case conference. This was more than 15 months after the expiration of the two-year limitation period. However, the applicant argues that the limitation period was never triggered, because she and her counsel did not receive the October 4, 2021 denial letter. She argues that they only received the October 8, 2021 letter, which simply included a copy of the s. 44 assessments, but did not have any language denying the IRB benefit, or outlining the dispute resolution process.

24I find that the respondent has led sufficient evidence to establish that the applicant and her counsel received the October 4, 2021 denial letter.

25Firstly, on October 20, 2021 the applicant’s counsel sent a letter to the respondent detailing an incident involving a serious decline in the applicant’s psychological state on October 13, 2021, upon receiving letters from the respondent denying attendant care benefits and IRBs. I agree with the respondent that this is persuasive evidence that the applicant had received the IRB denial letter. In her submissions, the applicant argues that the self-harm incident came as a result of the October 8, 2021 letter which had included the s. 44 assessments. However, her counsel’s letter clearly states that the incident occurred upon receiving letters from the respondent “regarding the denial of her attendant care and post 104-week income replacement benefits”. In my view, this clearly indicates that the applicant was aware of the post-104 week denial, and that the IRB denial letter had been received by the applicant.

26Secondly, the applicant’s counsel had arranged to have a Loss of Income Calculation Report prepared. The firm preparing the report listed the documents it has relied on, including the “Letter from Insurer re: Post 104 Report, Oct 4/21”. I find that this is compelling evidence that the applicant’s counsel had the October 4, 2021 denial letter, given that they had provided this letter to their expert.

27Thirdly, even if the October 4, 2021 letter was not received by the applicant and her counsel, it appears that the October 8, 2021 letter included the October 4, 2021 letter as an enclosure. At the bottom of the October 8, 2021 letter, it is noted “Encl.: Sent – Response S44 IRB IE 10.4; S44 post 104 IRB Multi Dis. 9.29.21”. I agree with the respondent this indicates that not only were the September 29, 2021 (referenced as 9.29.21) s. 44 reports enclosed, but also the October 4, 2021 (referenced as 10.4) denial.

28Finally, the respondent has provided examples of correspondence sent to the applicant’s counsel that confirmed that the denial letter had been sent. On October 14, 2021, the respondent emailed the applicant’s counsel, stating that the applicant had completed the s. 44 assessments and a copy of the reports “as well as a response letter has been sent to your office. I am just confirming your receipt”. The applicant’s counsel did not dispute that the response letter had been received. And on April 4, 2022 the IRB denial was again referenced in an email from the respondent to the applicant’s counsel. The email stated that the s. 44 assessments to determine post 104-week IRBs determined that the applicant did not suffer a complete inability to engage in any employment for which she was reasonably suited by education, training or experience. The applicant’s counsel did not dispute having received a denial.

29Cumulatively, I find that this evidence establishes that the October 4, 2021 letter had been received by the applicant and her counsel. Further, I find that the October 4, 2021 denial was a clear and unequivocal denial and provided medical and any other reasons for the determination. It summarized the various assessors’ medical findings and conclusions on post-104 week IRBs, and provided the applicant with information on her right to dispute the denial.

30Having determined that the respondent provided a clear and unequivocal denial that complies with s. 37 of the Schedule, I must still consider whether an extension of the limitation period should be granted pursuant to s. 7 of the LAT Act.

Section 7 of the LAT Act

31I find that the applicant has not established that the limitation period should be extended under s. 7. The applicant did not provide submissions on the four factors stipulated in Manuel, but rather, argued that the limitation period should be extended due to the discoverability principle, and the fact that the October 4, 2021 denial had not been received. As previously noted, I found that the discoverability principle is not applicable in the present matter and that the respondent had met its onus to prove that the October 4, 2021 letter had been sent to the applicant and her counsel.

32Further, in terms of the Manuel factors, the applicant has not led evidence of a bona fide intention to appeal the IRB denial within the limitation period. Rather, IRBs were not even identified as an issue in dispute when the application was filed with the Tribunal on August 23, 2024, but were subsequently raised for the first time at the case conference. The length of delay in this case is substantial, more than fifteen months after the expiration of the two year limitation period, and I note the respondent’s submissions it would suffer prejudice as a result of this delay. The applicant has not provided submissions and evidence on the merits of her claim. Given the applicant’s lack of submissions and evidence on the Manuel factors, I do not find that an extension of the limitation period pursuant to s. 7 is warranted.

ORDER

33I find that:

i. the applicant is barred pursuant to s. 56 of the Schedule from proceeding to a hearing on the issue of IRBs, because she failed to dispute their denial within the 2-year limitation period.

ii. the remaining substantive issues in dispute will be heard at the scheduled videoconference hearing.