Citation: Jean-Louis v. Unifund Assurance Company, 2025 ONLAT 22-014076/AABS

Licence Appeal Tribunal File Number: 22-014076/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:

Luce Jean-Louis

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Tal Eshel, Counsel

For the Respondent:

Nicholas Voight, Counsel

HEARD: By way of written submissions

OVERVIEW

1Luce Jean-Louis (“the Applicant”) was involved in an automobile accident on January 23, 2018, and sought benefits from Unifund Assurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant was denied benefits by the Respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

3Is the Applicant barred from proceeding with her application to dispute entitlement to the OCF-18’s/ treatment and assessment plans (“plans”) in dispute because she never disputed the denials within the two-year limitation period prescribed by section 56 of the Schedule.

ISSUES

4The substantive issues in dispute are:

1. Is the Applicant entitled to medical benefits proposed by Mackenzie Medical Rehabilitation Centre as follows:

(a) $3,696.50 for chiropractic services, proposed in a plan dated January 31, 2018;

(b) $1,384.70 for chiropractic services, proposed in a plan dated July 12, 2018;

(c) $1,384.70 for chiropractic services, proposed in a plan dated October 12, 2018; and

(d) $1,977.05 for chiropractic services, proposed in a plan dated May 8, 2018?

2. Is the Applicant entitled to a medical benefit in the amount of $2,204.92 for psychological services, proposed by Princeton Hill Medical Assessments Inc. in a plan dated April 25, 2018?

3. Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for comprehensive pain management assessment, proposed by ALCAT Assessments Inc. in a plan dated February 11, 2020?

4. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

5I find that the Applicant is permitted to dispute her entitlement to the plan dated February 11, 2020. However, she has not demonstrated that the plan is reasonable and necessary as a result of the accident.

6The Applicant is statute-barred from disputing her entitlement to the remaining plans in dispute.

7No interest is payable as no payments went overdue.

PROCEDURAL ISSUES

8This matter was ordered to a hearing by way of written submissions. The Applicant was ordered to make initial submissions, the Respondent was ordered to make responding submissions, and the Applicant was permitted to make reply submissions, if any.

9The deadline came and passed for the Applicant to issue her initial written submissions, but she never served or filed any submissions or evidence.

10The day after the Applicant’s submissions and evidence were due, the Respondent filed its submissions, highlighting that the Applicant failed to issue his initial submissions and evidence. The Respondent also issued submissions, stating that the Applicant is statute-barred from proceeding with her claims because she failed to dispute the denials within the two-year limitation period, outlined in section 56 of the Schedule.

11Five days later, the Applicant tendered her initial submissions and evidence. The submissions do not address her untimeliness. However, the email enclosing the submissions, from a law clerk from Applicant’s counsel’s office, states that counsel was dealing with an illness and that the Applicant is agreeable if the Respondent wishes to revise its submissions or provide further response.

12Counsel for the Respondent replied via email, stating that it objects to the late filing of the submissions. No other information or relief was provided or sought in the email.

13I have accepted the Applicant’s late submissions. Indeed, the submissions were filed late – after the Respondent filed responding submissions. However, the Respondent has not identified any prejudice it would be subject to by accepting the submissions.

14The Respondent’s email following receipt of the Applicant’s submissions is insufficient for me to strike the Applicant’s submissions. The email does not address the prejudice to the Respondent and does not seek any specific relief. Further, the proper way to address the Applicant’s untimely submissions is to file a motion pursuant to the Common Rules of Practice & Procedure (the “Rules”). The Respondent failed to do that and, instead, sent an email that lacked the requisite information for a motion. Accordingly, I reject the Respondent’s objection.

BACKGROUND

15The Applicant was the driver of a vehicle which was struck on the passenger side by another vehicle in a perpendicular fashion. Following the accident, she was taken by ambulance to the hospital and assessed. Imaging showed no fractures, and she was discharged home. She followed up with her family physician, who referred her to physiotherapy.

ANALYSIS

Preliminary issue – Is the Applicant statute-barred from proceeding?

16I find that the Applicant is statute-barred from proceeding with her application to dispute entitlement to the treatment and assessment plans in dispute, but for the plan dated February 11, 2020, in the amount of $2,200.00.

17Section 56 of the Schedule provides that an application to the Tribunal in respect of a benefit shall be commenced within two years after the Respondent’s refusal to pay the amount claimed. Pursuant to section 7 of the Licence Appeal Tribunal Act, 1999 (the “LAT Act”), the Tribunal has the authority to extend the limitation period beyond the two-year mark outlined by section 56 of the Schedule.

18I will not use my discretion to extend the deadline without submissions on why it should be extended. The Applicant made refence to section 7 of the LAT Act as a means to extend the deadline to file her Application. However, she has provided no submissions on why the deadline should be extended for her. I am unable to exercise my discretion without reasons addressing the existence of a bona fide intention to appeal, the length of delay, the prejudice to the other party, and the merits of the appeal, as is required when assessing whether to engage section 7 of the LAT Act.

19Turner v. State Farm Mutual Automobile Insurance Co., 2005 CanLII 2551 (ON CA) (“Turner”) is the most applicable case to this dispute and is binding on me. In Turner, the court agreed that the limitation period starts following a clear and unequivocal denial of benefits, which includes reference to the two-year limitation period. Moreover, Turner concluded that the reason for the denial does not need to be legally correct. Specifically, the Court stated:

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 notice.

20I turn now to the case of St. Nicolous v Intact Insurance Company, 2023 CanLII 122926 (ON LAT) (“St. Nicolous”), which the Applicant relied on in her submissions. St. Nicolous is not binding on me and contains a critical error of law which is contrary to Turner. In St. Nicolous the adjudicator conflated the principles of T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39379 (ON LAT) (“T.F.”) and Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 (“Hedley”) and applied the correctness provisions in section 38(8) of the Schedule to the engagement of the limitation clock. This practice is in direct contrast to Turner, outlined earlier. Accordingly, I find that the Respondent is not held to a standard of correctness when assessing whether the limitation period is engaged. Rather, the limitation period is engaged when a clear and unequivocal refusal to pay is given, together with reference to the two-year limitation period.

21The Respondent never included its denial letters with its submissions and evidence, despite raising the issue of the limitation period. I note this because providing the denial letters are the bare minimum in advancing a defense that the Applicant is statute-barred from proceeding with the Application related to those benefits. The Respondent has failed to meet that minimum standard.

22However, the Applicant provided the bulk of the denial letters for my review. From that information, I can confirm that the Applicant is statute-barred form disputing entitlement to all but one of the plans.

$3,696.50 for a plan, dated January 31, 2018

23The plan in the amount of $3,696.50, dated January 31, 2018, was denied by letter dated February 9, 2018, delivered via fax. The denial letter notes that the Applicant’s injuries appear to be a minor injury and subject to the minor injury guideline (“the MIG”) and the $3,500.00 funding limit for a minor injury. The letter asks the Applicant to submit a treatment confirmation form instead, and that the first block of treatment under the MIG is pre-approved up to $2,200.00. The correspondence includes reference to the two-year limitation period.

24I find that this is a valid denial that engages the limitation clock. This is because the denial letter provides a clear and unequivocal denial of the benefits claimed. There is no ambiguity in the letter which makes the message unclear. Thus, I find it rightfully engages the limitation clock. As the Application was filed on December 23, 2022, nearly three years after the denial, it follows that the Applicant is statute-barred from proceeding with her Application on this issue.

$1,384.70 for a plan, dated July 12, 2018

25The plan in the amount of $1,384.70, dated July 12, 2018, was denied by letter dated October 4, 2018. In that letter, the Respondent refused to pay for any expenses related to this treatment plan. The letter also refers the Applicant to an insurer’s examination (“IE”) report of an unknown date as well as the two-year limitation period.

26I find that this is a denial of benefits that engages the limitation clock. The letter clearly and unequivocally denies funding for the plan, dated July 12, 2018. While the letter may lack sufficient medical reasons, as required by section 38(8) of the Schedule, it does not upset the fact that it was a clear and unequivocal denial and that the Applicant failed to dispute entitlement within the two-year limitation period. Considering that this denial occurred nearly three-and-a-half years prior to the Application, I find that the Applicant is statute-barred from proceeding with her Application on this issue.

$1,384.70 for a plan, dated October 12, 2018

27The plan in the amount of $1,384.70, dated October 12, 2018, was denied by letter dated October 25, 2018. In that letter, the Respondent refused to pay for any expenses related to the plan because the plan was identical to the July 12, 2019 plan, which was also denied. The letter also refers the Applicant to the two-year limitation period.

28I find that this is a denial of benefits that engages the limitation clock. The letter clearly and unequivocally denies funding for the plan, dated October 12, 2018. The letter also includes the requisite information on the two-year limitation period. As the Application to dispute this plan was filed on December 23, 2022, it follows that the Applicant is statute-barred from proceeding with her Application on this issue.

$1,977.05 for a plan, dated October 25, 2018

29The plan in the amount of $1,977.05 for chiropractic services, dated May 30, 2018, was partly denied by letter dated October 25, 2018. The letter states that the Respondent agrees to pay $538.44 towards this plan, based on the recommendation in an attached insurer’s examination. The letter also advises the Applicant of the two-year limitation period.

30I find that this is a denial of benefits that engages the limitation clock. While the letter may lack sufficient medical reasons, as required by section 38(8) of the Schedule, it does not upset the fact that it was a clear and unequivocal statement that it will fund $538.44 of the $1,977.05 in the plan, dated May 30, 2018. The letter also includes reference to the two-year limitation period. As the Application was filed on December 23, 2022, it follows that the Applicant is statute-barred from proceeding with her application on this issue.

$2,204.92 for a plan, dated April 25, 2018

31The plan in the amount of $2,204.92 for psychological services, dated April 25, 2018, was denied by letter dated May 11, 2018. The letter states that the Respondent believes that the Applicant’s injuries are a minor injury and that she is subject to the MIG. It then advises the Applicant that funding pursuant to the MIG is exhausted. The letter includes the two-year limitation notice.

32I find that this is a denial of benefits that engages the limitation clock. The letter clearly and unequivocally denies funding for the plan, dated April 25, 2018, and refers to the two-year limitation period.

$2,200.00 for a plan, dated February 11, 2020

33This plan is not subject to the limitation period, however, the applicant has not demonstrated entitlement to it.

34This Applicant did not submit this treatment plan for review, nor did she submit a denial letter for it. Further, she has made no submissions explaining why the plan is reasonable and necessary as a result of the accident. Her claim to this plan is rooted in the notion that the Respondent failed to provide a compliant denial of the benefit.

35I am unable to find that the Applicant is statutorily entitled to this plan without knowing when it was submitted, and what, if any, the response to it was. It is improper to claim entitlement to a plan based on insufficient medical reasons, but not provide those reasons for scrutiny.

36Likewise, I am unable to find that the plan is reasonable and necessary given the lack of information on the plan. I do not know what goods and services are proposed in the plan. Similarly, the Applicant has not made any submissions on the goods and services proposed in this plan and has not directed me to any evidence to support a finding that the plan is reasonable and necessary as a result of the accident. Her only submission related to the issue of whether the plan is reasonable and necessary is that the Respondent agreed to no longer subject her to the MIG. There is nothing in the Schedule that entitles the Applicant to this plan because she is no longer subject to the MIG. Accordingly, I find that the Applicant has not met her onus to demonstrate entitlement to this plan.

Interest

37Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, it follows that no interest is payable.

CONCLUSION AND ORDER

38The Applicant is permitted to dispute her entitlement to the plan dated February 11, 2020. However, she has not demonstrated that the plan is reasonable and necessary as a result of the accident.

39The Applicant is statute-barred from disputing her entitlement to the remaining plans in dispute.

40No interest is payable as no payments went overdue.