Brooks v. Co-operators General Insurance Company, 2025 CanLII 49180

Brooks v. Co-operators General Insurance Company

Citation: Brooks v. Co-operators General Insurance Company, 2025 ONLAT 24-010913/AABS-PI Licence Appeal Tribunal File Number: 24-010913/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:

Colleen Brooks Applicant

and

Co-operators General Insurance Company Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Lily Rodriguez, Paralegal For the Respondent: Emily Schatzker, Counsel

HEARD: By way of written submissions

OVERVIEW

1Colleen Brooks, the applicant, was involved in an automobile accident on November 4, 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, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2At the case conference held on January 23, 2025, the respondent raised a preliminary issue, to be heard prior to the substantive issues in dispute.

PRELIMINARY ISSUE

3The preliminary issue to be decided is:

1. Is the applicant barred from proceeding to a hearing for all of the benefits claimed in her application because the applicant failed to dispute their denial within the two-year limitation period?

RESULT

4I find that the applicant is barred from proceeding with her application pursuant to s. 56 of the Schedule.

ANALYSIS

Law

5Section 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.

6In order for section 56 to be triggered, the respondent must have provided a valid notice of denial. Section 54 of the Schedule provides that if an insurer refuses to pay a benefit, the insurer shall provide the person with a written notice advising them of their right to dispute the benefit or reduction.

7Further, the Supreme Court of Canada in Smith v. Co-operators General Insurance Co, 2002 SCC 30 held that the refusal to pay the benefit must contain straightforward and clear language, it must be directed towards an unsophisticated person, it must outline the dispute resolution process and the relevant time limits that govern the process.

8If the applicant has not filed an appeal within the two year limitation period and the respondent provided a compliant notice, then the onus is on the applicant to establish reasonable grounds for an extension under Section 7 of the Licence Appeal Tribunal Act, 1999 ("LAT Act"). Section 7 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.

Background and parties' positions

9The applicant was involved in a motor vehicle accident on November 4, 2019 and submitted an Application for Accident Benefits ("OCF-1") on November 14, 2019. The applicant's non-earner benefit ("NEB") claim was denied by way of correspondence dated January 20, 2020. The treatment plan ("OCF-18") for chiropractic services was partially approved on July 21, 2020 and the OCF-18 for a psychological assessment was denied on August 14, 2020. The applicant filed her application with the Tribunal on August 30, 2024 disputing the respondent's denial of NEBs, the determination of whether her injuries should be subject to the Minor Injury Guideline ("MIG") limit, the denial of the two OCF-18s, together with interest and an award.

10The respondent submits that the applicant failed to dispute the denials of the NEBs and the OCF-18s within the two-year limitation period set out in s. 56 of the Schedule. It further submits that the s. 10 award, interest and MIG determination cannot exist in isolation and must be linked to a benefit. Therefore, the respondent submits that if the substantive issues of NEBs and the two OCF-18s are found to be barred by s. 56, the applicant must be barred from proceeding with the entirety of her application.

11The applicant's NEB claim was denied by way of correspondence dated January 20, 2020. The letter stated that the applicant was not eligible for NEBs for a number of reasons, including that the applicant was not a student or recent graduate. The respondent further stated that it had determined that the applicant qualified for an Income Replacement Benefit ("IRB"), and that she could only claim one weekly benefit. The letter stated that the applicant was eligible to receive IRBs in the amount of $98.19 per week. IRBs were paid to the applicant from November 11, 2019 to April 12, 2020 until the respondent terminated the benefit after conducting an insurer's examination. The OCF-18 for chiropractic services was partially approved on July 21, 2020. The letter stated that the plan was being approved only up to the MIG limit and confirmed that the applicant had sustained a minor injury. The OCF-18 for a psychological assessment was denied in an August 14, 2020 letter on the basis that the applicant's impairments were within the MIG, and that there was no evidence of a psychological impairment.

12The respondent submits that all of its denials were clear and unequivocal denials in compliance with the principles set out in Smith v. Co-operators, and informed the applicant of the dispute resolution process and the two-year time limit for disputing the denial. The respondent further argues that the applicant did not dispute the denial of the NEBs or OCF-18s until almost 24 months after the expiration of the two-year limitation period set out in s. 56 of the Schedule.

13The applicant argues that she is not barred from proceeding with her NEB claim under s. 56, because the respondent failed to comply with its statutory obligations under s. 35 and s. 36 of the Schedule. She submits that the respondent failed to advise or offer her an OCF-10 election of benefits form as required by s. 35 of the Schedule. Given that she was not asked which specified benefit she was applying for, the applicant argues that the January 20, 2020 letter was not a clear and unequivocal denial and the limitation period in s. 56 could not start to run.

14The applicant further argues that the doctrine of discoverability as set out in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 is applicable. She submits that with respect to her NEB claim, she was unaware that any applicable limitation period had begun to run, as a result of the respondent's non-compliance with s. 35 and s. 36 of the Schedule.

Did the respondent's denials trigger the s. 56 limitation period?

15I find that the respondent provided valid denials of the NEB claim and the two treatment plans, sufficient to trigger the two year limitation period.

NEBs

16With respect to the applicant's NEB claim, I find that the January 20, 2020 letter was a clear and unequivocal denial of the benefit.

17The letter stated that the respondent had determined that the applicant was entitled to IRBs, as she had been employed at the time of the accident and had been unable to return to full duties. It went on to say that while the OCF-3 had also indicated that the applicant met the test for NEBs, this specified benefit was being denied as the respondent had determined that the applicant was entitled to IRBs and that the applicant may only claim one specified benefit. The letter also stated that the applicant was not a student or a recent graduate.

18I am not persuaded by the applicant's argument that the two year limitation period did not start to run, due to the respondent's failure to request an OCF-10 election.

19The respondent cites a number of Tribunal decisions in support of its position that a denial stating that a claimant is not entitled to NEBs because she was eligible for IRBs, is a valid denial: see Lakshman v BelairDirect Insurance Company, 2023 CanLII 72657 (ON LAT), Chan v. Security National Insurance Company, 2025 CanLII 5887 (ONLAT), and Ekefre v TD Home and Auto Insurance Company, 2024 CanLII 115416 (ONLAT). The respondent further cites Chan v Security National to argue that its determination that the applicant was not entitled to NEBs because she qualified for IRBs, was consistent with s. 12(1)1 of the Schedule.

20I find the caselaw cited by the respondent to be persuasive. I agree with the reasoning in Ekefre that the respondent's reason for denying the NEB on the basis that she was eligible for IRBs is a clear and unequivocal denial. The claimant in Ekefre also argued that the insurer's denial letter was legally wrong, since pursuant to s. 35(1) of the Schedule, if he was entitled to both IRBs and NEBs an OCF-10 was required. However, the Tribunal determined that as per the Court of Appeal decision Turner v. State Farm Mutual Automobile Insurance Co., 2005 CanLII 2551 (ONCA), the reasons provided in a denial letter are not required to be legally correct. Rather, the Court in Turner v. State Farm found that a limitation period begins following a clear and unequivocal denial of benefits.

21I agree with the reasoning in Ekefre and Turner v. State Farm and find that the January 20, 2020 correspondence was such a clear and unequivocal denial of the applicant's NEB claim. The letter denied the specified benefit using straightforward and clear language directed towards an unsophisticated person, explained the dispute resolution process and referred to the two-year limitation period. Even if I accept the applicant's argument that the reason provided in the denial letter was legally incorrect, I note that the Court of Appeal in Turner found that "requiring that the reasons be legally correct goes beyond both the requirement in the relevant regulation, and the purpose of such notice".

22I find that this letter meets the requirements in Smith and triggered the two year limitation period.

OCF-18 for psychological assessment and outstanding balance of OCF-18 for chiropractic services

23I find that the respondent's denial letters for the two OCF-18s were valid denials sufficient to trigger the s. 56 limitation period. The applicant did not provide any submissions on how the respondent's July 21, 2020 and August 14, 2020 denial letters were insufficient or failed to comply with the principles in Smith.

24Both of these letters provided clear and unequivocal denials of the two treatment plans. The July 21, 2020 letter stated that the chiropractic treatment plan was being approved only to MIG limits and confirmed that the applicant's injuries were predominantly minor. The August 14, 2020 letter denied the psychological assessment on the basis that the applicant's injuries met the definition of minor injuries and that there was insufficient evidence of a psychological impairment. Both letters explained the dispute resolution process and referred to the two-year limitation period. I find that these letters meet the requirements in Smith and triggered the two year limitation period.

25Having determined that the respondent's denials were valid and that the applicant failed to dispute the denial of the OCF-18s and NEBs within the two-year limitation period stipulated in s. 56, I must still consider whether an extension is warranted under s. 7 of the LAT Act.

Section 7 of the LAT Act

26I find that the applicant has not established that an extension of the limitation period pursuant to s. 7 is warranted.

27The applicant submits that with respect to her NEB claim she was unaware that the limitation period had begun to run and that she believed that she had filed her application within the appeal period. As such, she argues that she had a bona fide intention to appeal within the limitation period. With respect to the medical benefits, the applicant points to her requests for medical records on November 15, 2023, January 9, 2024, February 14, 2024 and March 14, 2024 as evidence that she planned to use these records to pursue the present application.

28However, as noted above, with respect to the applicant's NEB claim I have found that the respondent's denial notices were valid and compliant with the principles set out in Smith v Co-operators. Further, although the applicant points to her request for medical records as evidence that she intended to dispute the denied OCF-18s, I agree with the respondent that all of these request letters were made well after the expiration of the two-year limitation period. As such, the request for medical records is not compelling evidence of a bona fide intention to appeal within the s. 56 time limit.

29In terms of the additional Manuel factors, I find that the delay in the present matter is substantial, being 24 months after the expiration of the s. 56 limitation period. I further agree with the respondent that permitting such a late claim would cause it prejudice, as the respondent was prevented from making enquiries in respect to the applicant's medical condition or from further assessing the applicant.

30Finally, the applicant has not led any evidence as to the substantive merits of her claim. Her only arguments rested on the respondent's purported procedural non-compliance with s. 35 and s. 36 of the Schedule. However, no submissions or evidence was led in support of her claim for entitlement to NEBs or the OCF-18s in dispute. Accordingly, I find that the applicant has not established that an extension of the limitation period pursuant to s. 7 is warranted.

31With respect to the remaining issues in dispute in this application, being the s. 10 award, interest and MIG determination, I agree with the respondent that these issues cannot proceed in the absence of the substantive benefits in dispute.

ORDER

32I find that:

i. the applicant is barred pursuant to s. 56 of the Schedule from proceeding with her application, because she failed to dispute the denials within the two-year limitation period. I decline to exercise my discretion to extend the limitation period.

ii. the application is dismissed and the substantive hearing is vacated.