Court File and Parties
Licence Appeal Tribunal File Number: 23-003583/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:
Mark Colley
Applicant
and
Commonwell Mutual Insurance
Respondent
Decision
Adjudicator: Christopher Yan
Appearances:
For the Applicant: Terio Francis, Counsel
For the Respondent: Cecil Jaipaul, Counsel
Heard: By way of written submissions
OVERVIEW
1Mark Colley, the applicant, was involved in an automobile accident on February 1, 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, The Commonwell Mutual Insurance Group, 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 with his claim for an Attendant Care Benefit (ACB) because the applicant failed to dispute the denial within the 2-year limitation period?
ISSUES
3The substantive issues in dispute are:
i. Is the applicant entitled ACBs in the amount of $3,000.00 per month from October 14, 2020 to date and ongoing?
ii. Is the applicant entitled to $6,605.88 for chiropractic services, proposed by Shining Waters Chiropractic in a treatment plan/OCF-18 (“plan”) submitted September 16, 2022, and denied September 19, 2022?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
4The applicant is statute-barred from proceeding with her claim for ACBs.
5The applicant is not entitled to the chiropractic treatment plan, interest, or an award.
6The application is dismissed.
ANALYSIS
Preliminary Issue
7I find that the applicant is barred from proceeding with her claim for ACBs as the application was filed outside the two-year limitation period set out in s. 56 of the Schedule, and the applicant has not established reasonable grounds for an extension of time under s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c.12, Sched. G (“LAT Act”).
8Section 56 of the Schedule states 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.
9In this matter, the respondent denied the applicant’s claim for ACBs on November 3, 2020. The application in this matter was filed on March 29, 2023. Therefore, I find that the application was filed outside of the two-year period set out in section 56.
10The applicant does not dispute that he did not file his application within the two-year limitation period. Instead, the applicant asks the Tribunal to exercise its discretion under s. 7 of the LAT Act to extend the limitation period and allow his claim for ACBs to proceed to a hearing.
11Section 7 of the LAT Act affords the Tribunal discretion to extend the limitation period prescribed by s. 56 of the Schedule if it is satisfied that there are reasonable grounds for granting such relief. In determining whether to grant an extension, the Tribunal examines four factors: i) the existence of a bona fide intention to appeal within the appeal period; ii) the length of the delay; iii) prejudice to the other party; and iv) the merits of the appeal. See Manuel v. Ontario (Registrar, Motor Vehicle Dealers Act), 2012 ONSC 1492
12The only submissions made by the applicant in support of his request for relief under s. 7 of the LAT Act are as follows:
The Applicant submits he always had a bone fide intention to appeal the denial. Further, there the delay is insignificant and there is no prejudice to the Respondent. A hearing on the merits of the disputed benefit is warranted, particularly given the severity of the Applicant’s impairments.
13I find that the applicant has not meaningfully engaged with the factors to consider whether or not a limitation period should be extended. Instead, the applicant has made general assertions that are unsupported by evidence.
14For example, while the applicant refers generally to a bona fide intention to appeal the ACB denial, no correspondence, documentation, records, or other evidence have been provided to demonstrate such intention to dispute the denial within the limitation period.
15Further, on the length of the delay, the applicant characterizes the five-month delay as insignificant but provides no explanation for the delay or any rationale as to why it should be deemed insignificant. Similarly, the applicant submits that the respondent has not been prejudiced by the delay, but does not provide a basis for this assertion.
16Regarding the merits of the claim, the applicant relies on a September 12, 2023 psychological assessment from Dr. Jacqueline Brunshaw, psychologist, to support the necessity of the ACBs. However, the applicant has not provided financial documentation, details of the level of service received, or information about the providers involved to demonstrate that expenses have been incurred. Section 19 of the Schedule provides that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for services provided by an aide or attendant or by a long-term care facility, including a long-term care home or a chronic care hospital. I agree with the respondent’s submissions that the applicant has not discharged his burden to establish that he incurred the expense.
17When considering the factors to provide an extension of the limitation period under s. 7 of the LAT Act, I find that the applicant has not meaningfully engaged with the factors and has not persuaded me on a balance of probabilities that I should exercise my discretion to extend the limitation period.
18Therefore, because the applicant filed his application with the Tribunal more than two years after the denial of ACBs and I am not prepared to exercise my discretion to extend this period under s. 7 of the LAT Act, the applicant is statute-barred from proceeding with his claim for ACBs.
The applicant has not established entitlement to $6,605.88 for chiropractic services
19I find that the applicant has not established on a balance of probabilities that the proposed $6,605.88 for chiropractic services is reasonable and necessary.
20To receive payment for a treatment and assessment plan under sections 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.
21Although the applicant frames this issue as arising from the submission of a plan, I accept the respondent’s submission that the document at issue, relating to the $6,605.88 in chiropractic services, was not submitted by way of a plan, but by an Expenses Claim form (OCF-6). This distinction is significant because the applicant has not directed me to a proper treatment plan, identified the goals of treatment within such a plan, or made submissions on how the goals of treatment would be met to a reasonable degree.
22The applicant’s submissions are limited to the assertion that the respondent’s partial approval of the disputed treatment expenses constitutes a concession that the treatment is reasonable and necessary. I do not accept this argument. The respondent’s partial approval does not relieve the applicant of the onus to establish entitlement to the disputed amount.
23Although the applicant has included a substantial volume of medical records as appendices to his submissions, the applicant has not identified any evidence within those records that supports the reasonableness or necessity of the disputed treatment. Further, the applicant has not provided any supporting documents for the specific expenses claimed or explained how the treatment would achieve the intended goals.
24The respondent also submits that s. 38(2) of the Schedule precludes liability for treatment expenses incurred before the submission of a treatment plan approved by a health practitioner. There is no identifiable treatment plan and it is unclear from the parties’ submissions when the disputed treatment was incurred, although it is evident from the respondent’s denial letter, dated September 19, 2022, that the respondent denied payment for chiropractic services on the basis that these expenses were incurred “before the accident”. While this submission is relevant, it is not necessary to make a finding on this point, as the applicant has not met the fundamental requirements for entitlement under sections 15 and 16 of the Schedule.
25For these reasons, I find that the applicant has not met his onus to establish entitlement to $6,605.88 for chiropractic services.
Interest
26Having found that the applicant is not entitled to the disputed benefits, the applicant is also not entitled to interest under s. 51 of the Schedule.
Award
27Having found that the applicant is not entitled to the disputed benefits, the applicant is also not entitled to an award under s. 10 of Reg. 664.
ORDER
28The applicant is statute-barred from proceeding with their claim for ACBs. The applicant is also not entitlement to the plan in dispute, interest, or an award. The application is dismissed.
Released: May 9, 2025
Christopher Yan Adjudicator