Gosse v. Belair Insurance Company Inc., 2025 ONLAT 25-003972/AABS - PI
Licence Appeal Tribunal File Number: 25-003972/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:
Heather Gosse
Applicant
and
Belair Insurance Company Inc.
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Melissa Gizzo, Counsel
For the Respondent:
Chelsea Gilder, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Heather Gosse, the applicant, was involved in an incident on January 24, 2022, 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 Belair Insurance Company Inc., the respondent, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES IN DISPUTE
2The preliminary issues to be decided are:
i. Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?
ii. 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?
RESULT
3The applicant is statute barred from proceeding to a hearing pursuant to s. 56 of the Schedule.
ANALYSIS
Background
4This claim arises from an incident that occurred on January 24, 2022. According to a statement provided by the applicant, dated June 2, 2022, she was exiting Walmart to drive home. Her car was parked in the parking lot. She states the following:
I went to my parking spot which was the first one along there. I opened my hatch up. I put away my groceries. I unlocked the car with my fob. I walked towards the driver’s door. I opened the door, but my doors are heavy, so I put my left hand on top of the door to open the door. As I was opening the door, my feet seemed to change spots and I stepped forward and fell down to the side of the vehicle. I was in the process of trying to put my purse into the vehicle when I fell. Ice caused the fall.
5The applicant submitted an Application for Accident Benefits (“OCF-1”) dated February 28, 2022, which was received by the respondent on March 1, 2022. A Reservation of Rights letter was sent to the applicant on March 8, 2022, advising that the respondent is reserving its rights under the policy to restrict or deny accident benefits coverage as it completes an investigation.
6Following an investigation of the incident, a denial letter was sent to the applicant on December 13, 2022, advising that the incident was not considered an “accident”, as it was considered a “slip and fall accident” and did not meet the definition of an “accident” under s. 3 of the Schedule. The respondent submits that this letter was sent to the applicant via registered mail and was delivered on December 19, 2022. The applicant signed for the letter.
7The applicant filed the within application disputing the denial with the Tribunal on March 24, 2025.
8The respondent submits that the December 13, 2022 letter was a clear and unequivocal denial of her claim, triggering the limitation period, and the applicant did not appeal the denial within two years. The respondent further submits that the applicant was not involved in an “accident” as defined in section 3(1) of the Schedule.
9The applicant submits that the limitation was not triggered until her counsel received the denial letter on March 23, 2023. In the alternative, the applicant submits that I should exercise my discretion under s. 7 of the Licence Appeal Tribunal Act (“LAT Act”) to extend the statutory limitation period. She further submits that she was involved in an accident as defined in section 3(1) of the Schedule.
Did the respondent’s denial trigger the limitation period?
10For the reasons set out below, I find that the respondent issued a valid denial of the applicant’s application for benefits that triggered the limitation period.
The principles of a proper denial
11The 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.
12In 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, 2022 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: see 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.
13The respondent submits that it submitted a clear and unequivocal denial of the applicant’s entitlement to accident benefits in its letter dated December 13, 2022, which triggered the limitation period. It points to its letter from that date which advised the applicant that the incident was not considered to be an “accident”, as it was considered a “slip and fall accident” and did not meet the definition of an “accident” under s. 3 of the Schedule. It has further provided evidence that the letter was sent by registered mail to the applicant and was signed for by the applicant on December 19, 2022. The respondent submits that the applicant did not appeal the denial within two years.
14The applicant takes issue with the manner in which the denial letter was sent to her. She submits that the denial letter dated December 13, 2022 was only sent to her by registered mail. She submits that her counsel was not made aware of the denial until March 22, 2023. She submits that despite an order being made at the Case Conference on July 7, 2025, to produce the fax confirmation regarding the December 13, 2022 correspondence being sent to her counsel, the respondent has failed to produce such documentation confirming same. She submits that on March 23, 2023, the applicant received a fax confirmation containing the December 13, 2022 denial, with the notation “re-faxed”. The applicant submits that there would be no reason to re-fax a letter three months later, unless it was clear that the original fax did not go through. She therefore submits that March 23, 2023 was the first notice of any denial made to her counsel and should commence the limitation period.
15The respondent in reply argues that the applicant has not provided any caselaw to support her position that delivery of the denial letter to her counsel should commence the limitation period. The respondent refers to s. 64(2)(a) of the Schedule which provides for the requirements for delivery notices and submits that this section does not specify and/or require that a notice must be delivered to an applicant’s representative. It submits that s. 64(2)(a) requires delivery to the person or to the solicitor or representative. It submits that delivery of the denial letter was made by registered mail to the applicant, pursuant to s. 64(2)(d)(ii) of the Schedule, on December 19, 2022.
16I find that the respondent’s notice letter satisfied the basic requirements of Smith as there was a clear denial of the applicant’s application for accident benefits. The denial contained straightforward and clear language setting out the decision that the incident was not an “accident”. The letter further enclosed the Applicant’s Right to Dispute outlining how the applicant may dispute the respondent’s decision.
17I find that the respondent has provided evidence that the applicant signed for and received the denial letter on December 19, 2022, by providing a copy of the Delivery Confirmation Receipt from Canada Post. I find that the limitation period starts when the applicant received or is deemed to have received the insurer’s refusal to pay the benefits, pursuant to s. 64(d)(ii) of the Schedule, which is the denial letter. Therefore, the limitation period began to run on December 19, 2022.
18I do not accept the applicant’s position that delivery of the denial letter to her counsel on March 23, 2023, commences the limitation period. I find that there is no requirement in s. 64(d)(ii) of the Schedule, that a denial letter must be delivered to both the applicant and her counsel. I find the fact that the denial letter was sent and received by the applicant by registered mail, satisfies the requirements of s. 64 of the Schedule.
19For the reasons set out above, I find that receipt of the respondent’s denial letter by registered mail on December 19, 2022, triggered the limitation clock. The applicant had two years from the date of receipt of this denial letter to dispute the determination and file an Application with the Tribunal. As the applicant filed her Application on March 25, 2025, she is in non-compliance with s. 56 of the Schedule.
Should the limitation period be extended pursuant to section 7 of the LAT Act?
20I have not been persuaded to exercise my discretion under s. 7 of the LAT Act to extend the statutory limitation period.
21Pursuant 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 facts set out by the Divisional Court in Manuel v. Registrar, Motor Vehicle Dealers Act, 2022, 2012 ONSC 1492 (“Manuel”): 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 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.
22The applicant submits that she had a bona-fide intention to appeal because she still required care and an assessment of attendant care needs was submitted to the respondent on November 29, 2024. In terms of the length of the delay, the delay is insignificant and accordingly would not cause any prejudice to the respondent. Alternatively, the applicant submits that she would be severely prejudiced by being completely barred from having any access to benefits when she is clearly in need of them. The applicant argues that there is merit to the applicant’s case as the respondent clearly knew and communicated with counsel prior to sending its denial to her via registered mail.
23The respondent submits that even if the applicant’s counsel did not become aware of the denial letter until March 22, 2023 when it received the letter by fax from the respondent, the applicant’s counsel was then aware of the denial letter dated December 13, 2022, and would therefore be aware of the December 2024 limitation period. The respondent submits that the applicant has not addressed the factors as required by Manuel and has not discharged her onus in this regard.
24I find that the applicant has not led evidence of a bona fide intention to appeal the denial within the limitation period. She submits that she still requires care and provided a Form 1 to the respondent on November 29, 2024. The respondent submits that on July 23, 2024, 30 months after the incident and 19 months after the denial letter was sent, the respondent received a treatment plan proposing an in-home assessment. A denial letter was sent by the respondent on July 24, 2024, maintaining its denial from December 13, 2022, on the basis that the incident was not an accident. In addition, the Form 1 dated November 29, 2024, was responded to by letter dated February 21, 2025, again reiterating the respondent’s position in its letters dated December 13, 2022 and July 24, 2024, that the applicant was not involved in an “accident”. I find that both letters were sent to the applicant and her counsel, reiterating the limitation period. I find the fact that the applicant submits that she still requires care, is not sufficient evidence to support that she had a bona fide intention to appeal the denial within the limitation period. I further find that a copy of the Form 1 or any medical documentation in support of her injuries has not been provided by the applicant.
25The applicant further submits that the length of the delay is insignificant and would not cause any prejudice to the respondent. While the delay of three months is not excessive, the short delay on its own is not sufficient to meet the s. 7 test. I find that all four factors in Manuel are to be taken into account, but that no one aspect is determinative.
26With respect to the prejudice to the other party, the applicant submits that no prejudice has been suffered by the respondent from the delay. She submits that she in turn would suffer significant prejudice if the claim is barred. The Divisional Court in Manuel found that the decision maker is to focus on the prejudice to the other party, in this case the respondent insurance company. An extension of time would undermine the certainty of the limitation period insurers rely on and the respondent would be faced with the burden of defending against an additional claim without medical assessments to address it.
27Finally, I find that the applicant has not established that s. 7 should be engaged due to the merits of the claim. The applicant has not provided any submissions about her impairments and has not pointed me to any medical evidence in support of her injuries or the merits of her claim. I find that the applicant’s only submission is that she submitted a Form 1 on November 29, 2024, almost three years after the accident. It is well-settled that submissions alone are not evidence. Rather, medical evidence must be led in support of a claim. I find that the applicant has not met her onus of showing, through evidence, that there is some merit to her claim.
28As such, when considering the four Manuel factors holistically, I find that the applicant has not established on a balance of probabilities that the justice of the case supports the Tribunal exercising its discretion to extend the limitation period. Accordingly, I decline to use the Tribunal’s discretion to extend the limitation period under s. 7 of the LAT Act.
ORDER
29The applicant is statute barred from proceeding to a hearing pursuant to s. 56 of the Schedule. The application is dismissed.
Released: August 18, 2025
___________________________
Melanie Malach
Adjudicator