Licence Appeal Tribunal File Number: 25-000993/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:
Nancy Mintah
Applicant
and
Aviva General Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Zaid Patel, Paralegal
For the Respondent: Michael McChesney, Counsel
HEARD: By way of written submissions
OVERVIEW
1Nancy Mintah, the applicant, was involved in an automobile accident on July 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, Aviva General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The preliminary issues, as identified in the Case Conference Report and Order dated May 5, 2025 (“CCRO”) and the Motion Order dated May 14, 2025 are:
i. Is 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?
ii. Is the applicant barred from proceeding to a hearing with respect to issues 2 and 3 listed in the CCRO because the applicant’s former counsel gave an undertaking not to re-submit those issues after they were withdrawn from the applicant’s prior Tribunal application?
RESULT
3I find that the applicant is barred from proceeding with her application because she failed to dispute the denials within the 2-year limitation period.
ANALYSIS
Law
4Section 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.
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.
6It is well established that, to determine whether a denial is proper, it must be in accordance with the principles outlined in Smith v Cooperators General Insurance Company, 2002 SCC 30. The Court of Appeal in Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111 confirmed that the limitation period is triggered once proper notice of denial is provided regardless of the correctness of the insurer’s reasons for denial.
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.
Parties’ positions
8The respondent submits that the applicant failed to dispute the denial of non-earner benefits and seven treatment plans within the two-year limitation period required by s. 56 of the Schedule. The application was brought from 14 days, to almost one year, outside of the limitation period to dispute the denials. It further argues that the applicant has not established grounds to extend the limitation period under s. 7 of the LAT Act.
9Finally, the respondent submits that six of the treatment plans were subject to a previous Tribunal application. It argues that the applicant had agreed to withdraw her prior application in exchange for payment of her outstanding treatment balance, and that the applicant’s former counsel had provided an undertaking on behalf of the applicant that they would not re-submit any of the withdrawn issues. The respondent submits that the prior counsel’s undertaking is binding on the applicant and her current representative and as such, she should be barred from moving forward with the six treatment plans.
10The applicant does not dispute that her application was filed outside of the two-year limitation period for all of the substantive issues in dispute. However, she argues that there are grounds for an extension under s. 7 of the LAT Act. The applicant submits that her filing of the application with the Tribunal is evidence of a bona fide intention to appeal the denial; that for most of the benefits in dispute the delay in disputing the denial was not substantial; that the respondent has not established prejudice due to the delay; and that her claim has merit. The applicant did not provide submissions on the second preliminary issue, with respect to her former counsel’s undertaking.
Preliminary Issue #1 - The applicant failed to dispute the denials within the two-year limitation period
11The applicant does not dispute that her application was brought outside of the two-year limitation period to dispute the denials for all of the substantive issues in dispute. Nor does the applicant dispute the validity of the respondent’s denial notices. Further, upon review of the denial notices I find that they are compliant with the principles set out in Smith v. Cooperators.
12Rather the applicant’s submissions solely relate to whether the Tribunal should exercise its discretion to extend the two-year limitation period pursuant to s. 7 of the LAT Act.
Section 7 of the LAT Act
13I find that the applicant has not established that an extension is warranted pursuant to s. 7.
14When considering the first of the four factors set out in Manuel, I find that the applicant has not established a bona fide intention to appeal within the limitation period. The applicant argues that her application to the Tribunal constitutes evidence of her intention to appeal the denials, relying on the Tribunal decision Singh v TD General Insurance Company, 2023 CanLII 9245 (ONLAT). However, the filing of a Tribunal application outside of the two-year limitation period is not evidence of a bona fide intention to appeal “within” the limitation period.
15I further find that the decision cited by the applicant on this point, Singh, is distinguishable from the present case. In Singh, the Tribunal noted that the claimant had provided evidence of multiple attempts by her counsel to obtain her accident benefits file throughout the two year limitation period. The Tribunal found that the attempts by the claimant’s counsel to obtain the file suggested the bona fide intention to appeal. In the present matter, the applicant has not led any evidence that during the two year limitation period, her counsel attempted to contact the respondent. Rather, for six of the treatment plans the applicant’s former counsel had provided an undertaking that these issues would not be re-submitted to the Tribunal, after having been previously withdrawn.
16In terms of the length of the delay for disputing the denial, the period ranges from 14 days outside of the limitation period for non-earner benefits and some of the treatment plans, to almost one year outside of the limitation period for one of the treatment plans. While the delay of almost one year is significant, I agree with the applicant that a 14 day delay is not excessive. However, the short delay on its own is not sufficient to meet the s. 7 test. Rather, I agree with the Divisional Court decision cited by the respondent, Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997, that all four Manuel factors are to be taken into account, but that no one aspect necessarily has priority.
17With respect to prejudice to the other party, the respondent submits that the delay in bringing forward the application has hindered its ability to obtain contemporaneous insurer’s examinations. The applicant submits that there is no prejudice to the respondent from the delay. While I accept that the respondent is prejudiced by the delays of a year or six months for some of the denials, I find this argument less persuasive with respect to the OCF-18s where the delays were only 14 days outside of the limitation period.
18Finally, when applying the fourth Manuel factor, I find that the applicant has not established that the merits of her appeal warrant an extension of the limitation period. The respondent submits that the subject accident was minor, that the applicant did not go to the hospital or seek medical care for three months post-accident, and that she returned to work post-accident. The applicant submits that she had pre-existing back pain and a left wrist fracture prior to the accident, and that she currently feels sharp chest pain and left wrist pain.
19However, although the applicant has provided a general submission about her impairments, she has not provided any medical evidence in support of her injuries or the merits of her claim. It is well-settled that submissions alone are not evidence. Rather, medical evidence must be led in support of a claim. I note that in the decision cited by the applicant on this point, Singh, the applicant had led medical evidence in support of the merits of her claim, including hospital records and an occupational therapy assessment report. In the present matter the applicant has not led any such supportive evidence. I note that the onus rests with the applicant to show, through evidence, that there is some merit to her claim.
20As such, when considering the four Manuel factors holistically, I find that the applicant has not established that the justice of the case supports the Tribunal exercising its discretion to extend the limitation period.
Preliminary Issue #2 – Counsel’s undertaking to not re-submit withdrawn treatment plans
21Given that I have found that the applicant is barred from moving forward with her application as a result of her failure to dispute the denials within the two year limitation period, it is not necessary for me to consider the second preliminary issue raised by the respondent.
ORDER
22I find that:
i. the applicant is statute-barred pursuant to s. 56 of the Schedule from proceeding with her application. I decline to exercise my discretion to extend the limitation period.
ii. the application is dismissed and the substantive hearing is vacated.
Released: July 29, 2025
Ulana Pahuta
Adjudicator