Wesson v. Jevco Insurance Company, 2025 CanLII 55809

Citation: Wesson v. Jevco Insurance Company, 2025 ONLAT 24-014080/AABS-PI

Licence Appeal Tribunal File Number: 24-014080/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:

Samantha Wesson

Applicant

and

Jevco Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Joseph G. Caprara, Counsel

For the Respondent:

Marilyn Maxwell-Smith, Counsel

Heard:

By Way of Written Submissions

OVERVIEW

1Samantha Wesson, the applicant, was involved in an accident on June 20, 2021, 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, Jevco Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided is:

1. Is the applicant barred from proceeding to a hearing for all of the benefits claimed in this application because she failed to dispute their denial within the 2-year limitation period?

RESULT

3The applicant is statute barred from proceeding to a hearing for all benefits claimed in this application pursuant to s. 56 of the Schedule.

ANALYSIS

Background

4On August 15, 2022, the applicant submitted a treatment plan, dated May 31, 2022, in the amount of $3,475.94, for chiropractic and occupational therapy treatment, proposed by Angus Sports Medicine and Rehabilitation Centre.

5On August 26, 2022, the respondent denied the treatment plan and requested the applicant participate in a s. 44 insurer’s examination (“IE”). A Notice of Examination (“NOE”) was attached scheduling an IE with Dr. Pankaj Bansal, general practitioner, on September 21, 2022.

6On September 22, 222, the respondent wrote to the applicant to reschedule the IE which the applicant did not attend on September 21, 2022. The letter enclosed a NOE for a rescheduled IE with Dr. Bansal, to take place on November 8, 2022.

7On December 1, 2022, following receipt of the IE Report of Dr. Bansal, dated November 17, 2022, the respondent sent a further denial letter to the applicant advising that her injuries qualified for treatment under the MIG and that the treatment plan, dated May 31, 2022, was denied.

8On September 8, 2023, the respondent wrote to the applicant and her counsel to enquire whether the firm was still representing the applicant with respect to her accident benefits claim. The email informed that the applicant’s “claim has been inactive and if it remains same for the next 30 days, we will proceed with retiring our file”.

9On November 15, 2024, the applicant filed an application with the Tribunal, disputing whether her injuries fall within the MIG and claiming entitlement to the treatment plan, dated May 31, 2022.

10The respondent submits that the applicant is statute barred from proceeding with her application to the Tribunal because she failed to commence her application within two years of the denial of the treatment plan on August 26, 2022. The applicant had until August 26, 2024 to commence an application and she filed her application on November 15, 2024.

11The applicant submits that the respondent’s denial letter dated August 26, 2022 did not meet the requirements of s. 38(8) of the Schedule. The applicant submits that the respondent’s letter dated December 1, 2022, was the first valid denial and therefore her dispute is within the limitation period.

Did the respondent’s denial trigger the limitation period?

12For the reasons set out below, I find that the respondent issued a valid denial of the treatment plan that triggered the limitation period.

The Principles of a Proper Denial

13The limitation period for accident benefits claims is set out in s. 56 of the Schedule. It states that applications to dispute the denial of a benefit shall be commenced within two years after the insurer’s refusal to pay the benefit.

14In order for s. 56 to be triggered, the respondent must have provided a valid notice of denial in accordance with the principles set out in Smith v. Co-operators General Insurance Company, 2002 SCC 30 (“Smith”). According to Smith, 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, and it must provide valid or other reasons for the denial: see Smith at paragraph 14. If an insurer’s notice of a refusal to pay a benefit does not satisfy these requirements, it may be determined to be invalid, and fail to trigger the two-year limitation period under s. 56 of the Schedule.

15The respondent submits that it issued a clear and unequivocal denial of the treatment plan in its letter dated August 26, 2022, which triggered the limitation period. It points to its letter from that date which provides the following information: the letter clearly noted that the respondent was denying payment for the services proposed by Angus Sports Medicine and Rehabilitation Centre; it noted the medical and other reasons for the denial, including the clinical notes and records which lacked compelling evidence of a concussion diagnosis; it cited the applicability of the MIG and confirmed that the treatment was not reasonable and necessary; it provided an addendum explaining the applicant’s right to dispute the respondent’s decision and provided information regarding the dispute resolution process; and it provided a warning of the two year time limit to file an application with the Tribunal if she wished to dispute the decision.

16The respondent submits that its post-IE denial correspondence of December 1, 2022 did not reset the limitation period, nor did scheduling an IE toll the limitation period. The respondent submits that the limitation period was triggered when the respondent denied the treatment plan on August 26, 2022. The applicant did not appeal the denial within two years. Rather, this application was filed on November 15, 2024, after the expiration of the limitation period on August 26, 2024.

17The respondent relies upon the Court of Appeal decision in Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111, which confirmed that the date of denial is the date the insurer gives clear and unequivocal notice of ineligibility for benefits, regardless of whether the actual denial is correct. The court concluded that it is the date of the first denial which marks the commencement of the limitation period. The calculation of time does not start over with subsequent denials of the same benefit.

18The applicant submits that the respondent’s letter dated August 26, 2022 did not meet the legal standards under s. 38(8) of the Schedule as it lacked a clear medical rationale, it did not provide a final denial and it conditioned its decision on the results of an IE. The applicant submits that following the applicant’s attendance at the IE, the respondent formally denied the treatment plan on December 1, 2022. Therefore, the applicant submits that the December 1, 2022 denial letter was the first valid denial that met the requirements under s. 38(8) of the Schedule and the two-year limitation period should be calculated from that date.

19I find the respondent’s notice letter dated August 26, 2022 satisfied the basic requirements of Smith as there was a clear denial of the treatment plan in dispute. The letter sets out the medical and other reasons for the denial. Specifically, I find that the notice clearly denies payment of the treatment plan; it refers to the details of the applicant’s impairments being minor, which is a medical reason; and it references the MIG (satisfying s. 38(9)).

20I further find that the letter contains sufficient details to enable an unsophisticated person to make an informed decision to accept or dispute the respondent’s decision. The letter notes that it reviewed the treatment plan with the medical documentation provided and compared it to the criteria in the MIG to determine that her impairment is predominantly a minor injury. The respondent cited insufficient compelling medical evidence to establish that a prior medical condition would not allow for recovery within the MIG. In addition, it notes that the clinical notes and records submitted on August 15, 2022, lacked compelling medical evidence of a concussion diagnosis. I find that the letter further outlined the dispute resolution process, by enclosing the Applicant’s Right to Dispute Addendum, and the relevant time limits which govern the process, with the two-year time limit displayed in bold and capitalized letters.

21I do not accept the applicant’s argument that by the respondent requesting an IE assessment that it conditioned its decision on the results of the IE. I find that although the respondent’s denial advised that an IE was required, this is permitted by s. 38(10) of the Schedule and does not detract from the clear and unequivocal refusal to pay the treatment plan. I find that the request for the applicant’s participation in an IE does not override a valid denial and the limitation period is still triggered. I further find that a subsequent denial of a treatment plan following completion of an IE does not reset the limitation clock.

22For these reasons, I find that the respondent’s denial letter dated August 26, 2022, clearly and unequivocally refused to pay the benefit, thereby triggering the limitation period.

Should the limitation period be extended pursuant to section 7 of the LAT Act?

23I do not exercise my discretion under s. 7 of the LAT Act to extend the statutory limitation period.

24Pursuant to s. 7 of the LAT Act, the Tribunal has the statutory discretion to extend the two-year limitation period in s. 56 of the Schedule if the Tribunal is satisfied that there are reasonable grounds for applying the extension and granting the relief. When considering whether to exercise discretion under s. 7, the Tribunal considers the following four factors set out by the Divisional Court in Manuel v. Registrar, Motor Vehicle Dealers Act, 2022, 2012 ONSC 1492: i) the existence of a bona fide intention to appeal within the appeal period; ii) the length of the delay; iii) the prejudice to the other party; and (iv) the merits of the appeal. These factors are not strict elements that must each be met in order to grant an extension of time, rather a holistic approach must be taken to the analysis. No one factor is determinative. The Court indicated that these factors are subject to the broader rule that an extension should not be granted unless the “justice of the case” requires it. It is the applicant’s onus to establish that there are reasonable grounds for granting an extension.

25The applicant did not provide any submissions as to why I should exercise my discretion pursuant to s. 7 to extend the two-year limitation period. Therefore, I find that the applicant has not met her onus to establish that the justice of this case favours an extension of time to file the application. Accordingly, I decline to use the Tribunal’s discretion to extend the limitation period under section 7 of the LAT Act.

ORDER

26The applicant is statute barred from proceeding to a hearing for all benefits claimed in this application pursuant to s. 56 of the Schedule. The application is dismissed.