Licence Appeal Tribunal File Number: 25-002353/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:
Hannah Fogel
Applicant
and
Security National Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Trina Morissette, Vice-Chair
APPEARANCES:
For the Applicant:
Alexander L. Chekina, Counsel
For the Respondent:
Maria Bihnam, Paralegal
HEARD: In writing
OVERVIEW
1Hannah Fogel, the applicant, was involved in an automobile accident on December 3, 2021, and sought benefits from Security National Insurance Company, the respondent, 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 and applied to the Licence Appeal Tribunal (“the Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is whether the applicant is barred from proceeding to a hearing for an income replacement benefit (“IRB”) because she failed to dispute the denial within the two-year limitation period prescribed by section 56 of the Schedule?
RESULT
3The applicant is statute-barred from proceeding to a hearing for an IRB, interest and an award.
BACKGROUND
4On December 3, 2021, the applicant was driving her vehicle when she was struck on the driver’s side by another vehicle. The applicant’s vehicle flipped multiple times, struck at least one light pole, and came to rest upside down in a ditch. Air bags were deployed and the applicant was removed from the vehicle by emergency personnel.
5At the time of the accident, the applicant was employed as an Intake Coordinator and Addictions Counsellor. Following the accident, the applicant took time off from her employment and received IRBs from the respondent starting December 11, 2021. The applicant returned to work full-time on January 17, 2022 and advised the respondent through her counsel of same on February 9, 2022. On February 14, 2022, the respondent sent correspondence (“the notice”) advising that entitlement to the IRB would cease as of January 17, 2022. In total, from December 11, 2021 to January 16, 2022, the applicant received $2,114.29 in IRBs.
6The applicant was later terminated from her employment on November 10, 2022. This information was not directly communicated to the respondent and the applicant did not submit a further OCF-2 or OCF-3.
7On February 24, 2025, the applicant filed an application with the Tribunal. The issues in dispute at the time included a determination of whether the applicant’s injuries were subject to treatment within the Minor Injury Guideline (MIG), a treatment plan for physiotherapy services, interest and an award.
8At a case conference held on July 3, 2025, the applicant withdrew her claim for the treatment plan and whether her injuries were subject to the MIG, and the parties agreed to add the issue of whether the applicant is entitled to an IRB.
ANALYSIS
9Section 56 of the Schedule provides that an application to the Tribunal in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the benefit.
10In order for section 56 to be triggered, the insurer 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.
11If an insurer’s notice of denial to an insured person does not satisfy these requirements, the denial may be determined to be invalid and fail to trigger the two-year limitation period.
12For the reasons set out below, I find that the respondent issued a valid denial of the applicant’s IRB and that the limitation period to dispute the denial was February 14, 2024. The applicant did not satisfy the requirements for an extension of the limitation period, and therefore, she is statute-barred from proceeding to a hearing on the issue.
The respondent provided a valid denial on February 14, 2022
13The respondent submits that the applicant is statute-barred from her claim for an IRB due to her contravention of section 56 of the Schedule, her failure to notify the respondent of changes in her employment status for IRB purposes, and her own actions which, it argues, demonstrated a voluntary choice regarding work cessation. It relies on the notice it provided to the applicant dated February 14, 2022.
14The applicant submits that the respondent’s notice was ambiguous and argues that the word “denial” is nowhere indicated. As such, no limitation period was triggered. More specifically, the applicant submits that the notice states that she is “entitled to an [IRB]” but that twelve lines later, it states that the IRB would be stopped as of January 17, 2022 because she returned to work. She states that the notice refers to “continued” IRB payments and that “continued” means ongoing; not denied.
15The applicant argues that the notice is also improper because it does not mention that she no longer qualifies for an IRB or that no further IRB will be paid after the January 17, 2022 date. She relies on T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) (referenced in St. Nicolous v. Intact Insurance Company, 2023 CanLII 122926 (ON LAT)) to support that a proper denial should include reference to the Schedule, and also on Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78 to suggest that the notice should include the words “no further IRB will be paid after this date”.
16She additionally submits that an improper right to dispute was provided with the notice as it does not include information such as online filing or dispute resolution options (e.g., mediation and arbitration), which she argues is typical considering the consumer protection mandate of the legislation.
17For the reasons that follow, I find that the notice of February 14, 2022 is compliant with the Schedule.
18The notice states, in part:
The Disability Certificate (OCF-3) indicates you are entitled to an Income Replacement Benefit.
The amount of the Income Replacement Benefit is based on 70% of your gross weekly income from employment to a maximum of $400.00 per week and may be subject to deduction for other income replacement assistance or income from employment received subsequent to the accident. The benefit is payable during the period that you continue to suffer a substantial inability to perform the essential tasks of your employment. No benefit is payable for the first week of disability or for a period longer than 104 weeks of disability, unless you continue to suffer a complete inability to engage in any employment for which you are reasonably suited by education, training or experience.
We calculated the Income Replacement Benefit based on the information provided on the Employer’s Confirmation Form (OCF-2), as follows:
Total benefits payable for the period of December 11, 2021 to January 16, 2022 total $2,114.29. Please see the attached calculation. This amount will be forwarded to you by Electronic Funds Transfer.
Income Replacement Benefits are stopped as of January 17, 2022 as you returned to work.
The enclosed “Applicant’s Right to Dispute” notice explains your rights and limitations in regards to your Accident Benefits claim with us.
19As noted above, following the accident, the applicant took time off work. The respondent paid the applicant IRBs commencing on December 11, 2021. In an email dated February 9, 2022, applicant’s counsel advised the respondent that the applicant had returned to work on a full-time basis as of January 17, 2022. As a result, in the February 14, 2022 notice, the respondent confirmed the applicant’s eligibility for IRBs starting December 11, 2021 and advised that this benefit would cease as of January 17, 2022 “as you returned to work”.
20The applicant points to the respondent’s continued requests for information and a log note of April 30, 2024 to argue that since the respondent was requesting further information, this indicates that it was in the process of determining her entitlement to the benefit and confirms that the benefit had not been denied. I do not accept this argument. First, the log note indicates “[n]o further documents received to indicate the client needs on going IRB” and “[i]f any new information comes that indicated client is not working then we will require update OCF 3 and address the benefit and will require paystubs”. Secondly, no payment for IRB had been provided to the applicant as of January 17, 2022 (over two years) which supports that the respondent followed through on the cessation of IRB payments as per its notice. I also note that an insurer has a continued obligation to assess an insured’s claim. I find that the evidence noted here demonstrates the respondent’s continued due diligence to assess the file.
21I therefore find that the notice satisfies the basic requirements of Smith as there was a clear denial of the applicant’s IRB as of January 17, 2022. Although the notice does not include the word “denial”, it clearly states that the IRBs would be stopped as of January 17, 2022.
22The notice is clear and straightforward, it clarifies the initial entitlement of the benefit starting on December 11, 2021, and it provides the reason for its cessation on January 17, 2022, being that the applicant had returned to work. The notice also includes information regarding the applicant’s right to dispute the denial, specifically noting the two-year time limit to do so and her right to file an application with the Tribunal. Having satisfied the Smith requirements, I find that the limitation period to dispute the denial was February 14, 2024.
The applicant has not provided reasonable grounds to extend the limitation period
23Section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (“LAT Act”) 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 (“Manuel”):
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.
24The onus is on the applicant to establish reasonable grounds for an extension under section 7 of the LAT Act.
25The respondent submits that the two-year limitation period to dispute the IRB denial expired on February 14, 2024. It argues that it was only at the case conference on July 3, 2025 – 16 months after the expiration of the limitation period - that the applicant sought to dispute the denial of the IRB. It argues that there was no bona fide intention to dispute the denial (the initial application was filed over a year after the limitation period had expired and did not include a claim for IRB), and the applicant was silent on the matter for over three years. Also, the respondent submits that it would be prejudicial to allow the IRB claim to continue and that the applicant’s claim lacks merit. It argues that the applicant’s claim that she was unable to work conflicts with her decision to pursue full-time university studies.
26The applicant submits that she did not contact the respondent when she ceased working in August 2023 because there had been no denial as per her understanding, and the notice did not advise her to contact the respondent should her situation change, nor did it advise her that she must provide a further OCF-2 or OCF-3. The applicant argues that the respondent should have known she was no longer working when it reviewed the various insurer’s examination reports it received in the determination of eligibility for other benefits. The applicant further submits that if the limitation period is extended this would cause no prejudice to the respondent as it knew of her situation through the section 44 reports and did nothing to assess or evaluate her ability to work. She adds that her claim for IRBs has merit and requires adjudication.
27Based on the evidence submitted and the parties’ submissions, I find that the applicant has not led evidence of a bona fide intention to dispute the denial within the limitation period. I am not persuaded that the applicant did not know that her IRB had been denied because of the notice which I have found is compliant, and also because despite her initial entitlement to IRBs, payment for IRBs ceased on January 17, 2022. I also note that the log note of April 2024 submitted shows that the applicant was informed at least on that date that she must provide additional information (including an OCF-2 or OCF-3) to the insurer if her situation changed but she still waited until the case conference on July 3, 2025 to dispute the denial. The applicant did not file an application with the Tribunal until February 24, 2025 – an application that did not include a claim for IRBs – and only sought to add the issue at the case conference on July 3, 2025. The delay of three and a half years (and 16 months after the expiration of the limitation period) is significant.
28Both parties submit that a determination regarding the merits of the claim would be determined, in part, on the reason the applicant ceased working, and each take a contradictory position regarding this reason.
29The respondent submits that the applicant was terminated from her employment for multiple reasons, none of which are attributed to the accident, and it relies on a termination letter dated November 10, 2022. I note that the termination letter does not specify that none of the reasons for the termination was related to the accident. The letter simply states: “due to multiple reasons, we will no longer be able to employ you as a full time employee with the company.” The respondent also relies on information the applicant provided to the insurer’s examination (IE) assessor in a physiatry report dated May 30, 2025. The respondent submits that the applicant advised the assessor that she stopped working to attend university full-time to become a psychologist. For clarity, the report states: “[s]he has not returned to this job, but rather has gone on to attend university to become a psychologist” and there is no mention in this IE report that the applicant initially returned to her employment full-time after the accident.
30The applicant submits that she ceased working due to the injuries she sustained from the accident and relies on an earlier physiatry IE report dated June 21, 2024. This report, prepared by the same physiatrist as the report dated May 30, 2025, notes that what stopped the applicant from working was a fear of driving. I note, however, that the report also states that the applicant reported to the assessor that she had resumed driving.
31I find that that the applicant has not provided reasonable grounds to establish her claim has merit and I find that granting an extension in this matter would prejudice the respondent. An extension of time would undermine the certainty of the limitation period the respondent relied on, and it would be faced with the burden of defending against a claim without medical or other evidence to address it.
32I find that the applicant has not provided a reasonable explanation for her delay. Instead, the applicant argues that the respondent should have taken steps to re-assess her when it learned that she was no longer employed. As previously noted, the onus is on the applicant to provide reasonable grounds for the extension.
33As such, when considering the four Manuel factors, I find that the applicant has not established on a balance of probabilities that the justice of the case supports exercising my discretion to extend the limitation period. Accordingly, I decline to use my discretion.
ORDER
34For all the above reasons, I find that:
i. The applicant is statute-barred from proceeding to a hearing for an IRB.
ii. Because the applicant’s claim for an IRB is statute-barred, no interest or award is payable.
iii. The application is dismissed.
Released: September 18, 2025
Trina Morissette
Vice-Chair