Citation: Vahed v. Co-operators General Insurance Company, 2025 ONLAT 24-011398/AABS-PI

Licence Appeal Tribunal File Number: 24-011398/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:

Rasoul Vahed

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:

Amanda Lennox, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Rasoul Vahed, the applicant, was involved in an automobile accident on April 13, 2018 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.

PRELIMINARY ISSUE

2The preliminary issue to be decided is:

Is the applicant barred from proceeding to a hearing for a non-earner benefit of $185.00 per week from May 10, 2018 to ongoing, because the applicant failed to dispute their denial within the two-year limitation period?

RESULT

3The applicant is barred from proceeding with his application pursuant to s. 56 of the Schedule.

ANALYSIS

Law

4The limitation period for accident benefits claims is set out in s. 56 of the Schedule. It states that an application to dispute a denial of a benefit shall be commenced within two years of the insurer’s refusal to pay the benefit.

5In 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.

6Further, 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.

7If the respondent’s denial satisfies these requirements and the applicant fails to dispute the respondent’s denial within two years, 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

8The applicant was involved in a motor vehicle accident on April 13, 2018. He submitted an Application for Accident Benefits (“OCF-1”) to the respondent on April 25, 2018 which stated that he had been employed at the time of the accident and that his accident-related injuries prevented him from returning to work. By way of letter dated April 27, 2018, the respondent confirmed receipt of the OCF-1 and requested a Disability Certificate (“OCF-3”) and Employer Confirmation Form (“OCF-2”).

9The applicant provided his OCF-3 on May 10, 2018 which stated that he was working at the time of the accident, he suffered a substantial inability to perform the essential tasks of his employment and that he could not return to work on modified duties. The OCF-3 also stated that the applicant suffered a complete inability to carry on a normal life.

10By way of letter dated May 11, 2018 the respondent acknowledged receipt of the OCF-3, and confirmed that the form had indicated that the applicant suffered a substantial inability to perform the essential tasks of his employment. The respondent stated that it had determined that the applicant was eligible for an income replacement benefit (“IRB”) and requested an OCF-2 in order to calculate the amount of the benefit. The letter also stated that the applicant was not entitled to a non-earner benefit (“NEB”), since he was eligible for an IRB.

11After conducting s. 44 assessments, the respondent sent a subsequent letter dated January 10, 2019 stating that its assessors had determined that the applicant did not suffer a substantial inability to complete the essential tasks of his employment and denied the applicant’s IRB claim. On September 12, 2024 the applicant filed his application with the Tribunal disputing the NEB denial, interest and an award.

12The respondent submits that it provided a clear and unequivocal denial of the applicant’s NEB claim on May 11, 2018. However, the applicant did not dispute the denial until September 12, 2024, almost four years after the expiration of the two-year limitation period set out in s. 56 of the Schedule. The respondent cites a number of Tribunal decisions to argue that denying an NEB claim on the basis that a claimant is entitled to IRBs, is a valid denial and compliant with s. 36(4)(b) of the Schedule. It further argues that an OCF-10 election of benefits form was not required in the present circumstances, since the applicant submitted an application indicating that he was entitled to IRBs and had been found to be entitled to IRBs by the respondent.

13The applicant submits that the s. 56 limitation period was not triggered, since the respondent’s denial letters did not comply with the procedural requirements of s. 32(2)(d), s. 35 and s. 36 of the Schedule. He argues that his OCF-3 established that he was qualified for both IRBs and NEBs. Accordingly, the applicant argues that pursuant to s. 35(1) of the Schedule the respondent was required to offer him an OCF-10 form to allow him to elect which benefit he wished to receive. Since the respondent failed to comply with s. 35(1), the applicant’s position is that the respondent’s NEB denial was not clear and unequivocal, and the limitation period in s. 56 did not start to run.

The respondent’s denial was valid

14I find that the respondent’s denial of the NEB claim was valid and triggered the s. 56 two year limitation period.

15The May 11, 2018 letter was a clear and unequivocal denial of the applicant’s NEB claim. A clear reason for the denial was given, being that the applicant was not entitled to NEBs, because he was entitled to IRBs instead. The letter provided information on the applicant’s right to dispute the denial, including the two-year limitation period, and provided information on the dispute resolution process. As such, I find that the respondent’s denial complied with the principles set out in Smith v. Co-operators.

16I further am not persuaded by the applicant’s argument that the denial was non-compliant with 32(2)(d), s. 35 and s. 36 of the Schedule, since no OCF-10 had been provided by the respondent. I find the decisions cited by the respondent on this point to be persuasive. In Tribunal decisions Ekefre v TD Home and Auto Insurance Company, 2024 CanLII 115416 (ONLAT), Chan v. Security National Insurance Company, 2025 CanLII 5887 (ONLAT) and Lakshman v BelairDirect Insurance Company, 2023 CanLII 72657 (ON LAT), the Tribunal consistently found that a denial stating that a claimant is not entitled to NEBs because they were eligible for IRBs, is a valid denial. The applicant has not provided any caselaw in support of his position that an OCF-10 was required in these circumstances.

17In addition, even if I were to accept the applicant’s argument that an OCF-10 election was required in this case, I agree with the reasoning in Ekefre and the Court of Appeal decision Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111. Namely, that a clear and unequivocal denial is sufficient to trigger a limitation period, even if legally incorrect reasons were provided.

18Accordingly, I find that the respondent’s May 11, 2018 denial letter meets the requirements in Smith and triggered the two year limitation period.

The application was not filed within the limitation period

19Given that I have found that the respondent’s May 11, 2018 letter was a valid denial notice, the applicant was required to dispute the respondent’s denial within two years. The applicant filed his application with the Tribunal on September 12, 2024, well-outside the s. 56 limitation period. However, pursuant to s. 7 of the LAT Act, the Tribunal has statutory discretion to extend the two year limitation period.

Section 7 of the LAT Act

20I find that the applicant has not established that an extension of the limitation period pursuant to s. 7 is warranted.

21The applicant submits that the doctrine of discoverability as set out in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 is applicable. He argues that the s. 56 limitation period is not a “hard limitation deadline” and may not be triggered by an insurer’s denial letter. Rather, it may be triggered only when the insured becomes aware of material facts on which their claim is based. The applicant argues that given the respondent’s non-compliance with s. 35 and s. 36, he was not aware that the limitation period had been triggered.

22I am not persuaded that an extension of the limitation period pursuant to s. 7 is warranted. The applicant’s only arguments with respect to s. 7 relate to the respondent’s purported procedural non-compliance. However, I have found that the respondent’s denial letter was valid and compliant with s. 35 and s. 36 of the Schedule and the principles set out in Smith v Co-operators. Further, I agree with the respondent that the doctrine of discoverability set out in Tomec is not applicable in the present case.

23In terms of the four factors set out in Manuel v. Registrar to determine if the justice of the case requires the extension, the applicant has not led evidence of a bona fide intention to appeal within the limitation period, or the merits of his NEB claim. The delay in the present matter is substantial, being almost four years after the expiration of the s. 56 limitation period. With respect to prejudice to the other party, I 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.

24As such, I find that the applicant has not established that an extension of the limitation period pursuant to s. 7 is warranted.

ORDER

25I find that:

i. The applicant is barred pursuant to s. 56 of the Schedule from proceeding with his application. I decline to exercise my discretion to extend the limitation period.

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