Licence Appeal Tribunal File Number: 23-003226/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:
Chrysanthus Paranawithana
Applicant
and
Certas Direct
Respondent
DECISION
ADJUDICATOR: Samia Makhamra
APPEARANCES:
For the Applicant: Savannah Chorney, Counsel
For the Respondent: Eric B. Heath, Counsel
HEARD: By way of written submissions
OVERVIEW
1Chrysanthus Paranawithana, the applicant, was involved in an automobile accident on August 3, 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, Certas Direct, 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 to a hearing for all of the benefits claimed in this application because the applicant failed to dispute their denial within the 2-year limitation period?
SUBSTANTIVE ISSUES
3The substantive issues in dispute are:
i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from April 28, 2019 to ongoing?
ii. Is the applicant entitled to the treatment plans/OCF-18 (“plan”) proposed by Scarborough Rehabilitation as follows:
(i) $1,395.00 for other assistive devices dated April 12, 2019; and
(ii) $2,000.00 for physiotherapy services dated July 2, 2019; and
(iii) $200.00 for invoice for OCF-3 dated June 25, 2019?
iii. Is the applicant entitled to $2,200.00 for an in-home assessment, proposed by Scarborough Rehabilitation in a treatment plan dated September 11, 2020?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is barred from proceeding to a hearing for all of the benefits claimed in this application because he failed to dispute their denial within the 2-year limitation period.
ANALYSIS
Preliminary Issue - The applicant did not dispute his denial within the 2-year limitation period
5Pursuant to s. 56 of the Schedule, an application in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.
6The respondent raised the preliminary issue that all of the applicant’s claims pertaining to these benefits are statute-barred under s. 56 of the Schedule due to his failure to dispute the denials within the 2-year limitation period.
7The applicant filed his application with the Tribunal on March 21, 2023. The parties agree that the applicant did not appeal the benefits in dispute within the 2-year limitation period.
8The applicant submits that he is entitled to proceed to a hearing with respect to the benefits in dispute by operation of s.7 of the Licence Appeal Tribunal Act, 1999 (“LAT Act”), which allows the Tribunal to exercise its discretion in extending the limitation period.
The Tribunal will not exercise its discretion under s.7 of the Lat Act
9For the following reasons, I decline to exercise my discretion under s.7 of the LAT Act to extend the limitation period.
10In assessing whether the justice of the case requires that an extension of time be granted, the Tribunal must apply the test set out by the Divisional Court in Manuel v. Registrar, 2012 ONSC 1492 (“Manuel”), which instructs the Tribunal to consider the following four factors:
i. The existence of a bona fide intention to appeal within the time limit;
ii. The length of the delay;
iii. Prejudice to the other party; and,
iv. The merits of the appeal.
11Manuel directs a holistic analysis of these factors. No single factor is determinative. The Court indicated that these factors are subject to a 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.
The existence of a bona fide intention to appeal within the time limit
12The applicant submits that it was his intention all along to appeal the denied benefits that are in dispute within the prescribed limitation period. His appeal was filed on March 21, 2023, just over a month after he retained a new legal representative and became aware that his previous counsel had not appealed the denials. He argues that his continued requests to the respondent to fund treatment plans, and the more recent request to be deemed catastrophically impaired are evidence of his intention to appeal the denied benefits within the limitation period. Amongst other cases, he relies on L.R. v. RSA Insurance Company of Canada, 2019 CanLII 76846 (ON LAT).
13The respondent disputes the applicant’s bona fide intention to appeal within the limitation period. It argues that the applicant has not offered an explanation for the delay in appealing, which weakens his argument that his continued requests for treatment funding demonstrate intention to appeal the denials. It also submits that there could not have been an intention to appeal the denial of IRBs because on June 19, 2019, the applicant actually submitted a disability certificate wherein it was indicated that he did not meet the pre-104 week IRB test.
14I am not persuaded by the applicant’s arguments. Submission of other treatment plans and a catastrophic impairment designation informs me that the applicant continued to seek funding but does persuade me that it was his intention all along to appeal the denials in dispute in this application. In addition, the disability certificate of June 19, 2019 indicates the opposite, for example: that he did not intend to appeal the IRB denial. I also note that the facts in the decision the applicant relies on, L.R. v. RSA Insurance, are distinguishable, and do not persuade me that submitting treatment plans and a claim for a catastrophic impairment determination prove that he had a bona fide intention to appeal the denials that are in dispute here.
The length of the delay
15The applicant did not provide a reason for not filing an application within the prescribed limitation periods to dispute the denials. In addition, there was no explanation provided for the length of the delay. The applicant submits that he was unaware that his former counsel did not appeal the denials. However, I have not been provided with any evidence that the applicant intended to appeal, and that his former counsel did not cooperate, or any evidence to demonstrate that the applicant was unaware that the denials had not been appealed.
16The delay with respect to the IRB is about 17 months. The shortest delay is about 6 months for the treatment plan for an in-home assessment. I find the delays are significant. In addition, the fact that the applicant does not offer an explanation or any details as to why his appeal was not filed within the limitation period makes this factor significant.
Prejudice to the other party
17I find that the applicant has not demonstrated that an extension of the limitation periods would not cause prejudice to the respondent.
18The applicant argues that there is no prejudice to the respondent because it still has access to the documentary record and to all subsequent relevant documents and witnesses remain available to testify.
19In short, the respondent submits it is prejudiced because it has been deprived of the opportunity to assess the applicant at the relevant periods for all these benefits.
20I agree. Given the length of the delay, I find the respondent has been prejudiced in that it was not able to assess the applicant or adjust the file accordingly.
The merits of the appeal
17The applicant submits his appeal has persuasive merit. To support his position, he argues that the respondent’s own assessors have identified one marked, and three moderate impairments and diagnosed the applicant with somatic symptoms disorder, major depressive disorder, and other specified trauma and stressor-related disorder, indicating that his claim has merit.
18The respondent submits the appeal has no merit. To the respondent, the applicant suffered soft tissue injuries in what was not a serious accident but exaggerated the extent of his injuries and functional impairments. It argues the applicant has type II diabetes, a pre-existing condition that may have exacerbated his health condition(s).
19While I understand that there may be some merit to the applicant’s claim with respect to his injuries and functional impairment, I am not persuaded that there is merit to the dispute over the specific benefits that he failed to appeal within the limitation period.
20Lastly, considering the excessive delay in filing this application, with no reason provided, and in light of the prejudice to the respondent, I am not persuaded to exercise my discretion to extend the limitation period. In these circumstances, I find that the justice of the case does not require that an extension be granted.
ORDER
21The applicant is barred from proceeding to a hearing for all of the benefits claimed in this application because he failed to dispute their denial within the 2-year limitation period.
Released: July 22, 2025
Samia Makhamra
Adjudicator