[A.J.] v. Intact Insurance Company, 2026 CanLII 34338

Citation: [A.J.] v. Intact Insurance Company, 2026 CanLII 34338

Licence Appeal Tribunal File Number: 25-008850/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:

[A.J.] (A minor by their Litigation Guardian, [HAY]) Applicant

And

Intact Insurance Company Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Alexei Antonov, Counsel

For the Respondent: Yasar Saffie, Counsel

Heard: By way of written submissions

OVERVIEW

1[AJ], the applicant, was involved in an accident on November 15, 2019, 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, Intact Insurance Company, 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. 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 because she failed to attend an Insurer’s Examination under s. 44 of the Schedule, for the following benefits: i. $2,200.00 for a psychological assessment, proposed by Downsview Healthcare, in a treatment plan dated August 3, 2020; and ii. $3,335.98 for psychological services, proposed by Downsview Healthcare, in a treatment plan dated January 11, 2021?

RESULT

3The applicant is not barred from proceeding to a hearing for all of the benefits claimed in this Application.

4The applicant is barred from proceeding to a hearing with respect to the treatment plans dated August 3, 2020 and January 11, 2021, because she failed to attend an Insurer’s Examination under s. 44 of the Schedule.

ANALYSIS

Compliance with s. 56 of the Schedule

Background

5The applicant, born on June 6, 2008, was 11 years old at the time of the accident. As of the date of this hearing, she is almost 18 years old.

6The applicant filed her Application before the Tribunal on July 8, 2025. She also filed a form for Representing Minors and Mentally Incapable Persons (“Representing Minors form”) which lists her mother [HY] as her litigation guardian. The Application lists five issues in dispute with the following denial dates:

Issue 1 – Non-Earner Benefits – denied June 22, 2021 Issue 2 – Psychological Assessment – denied August 6, 2020 Issue 3 – Psychological Services – denied January 18, 2021 Issue 4 – Physiotherapy Services – denied December 6, 2020 Issue 5 – Physiotherapy Services – denied November 29, 2021

7The respondent submits that despite all five issues in dispute being denied in 2020 and 2021, the applicant did not submit her Application to the Tribunal until July 8, 2025, which is three years, seven months and nine days after the last denial date of November 29, 2021. The respondent submits that the applicant is disputing these benefits well beyond the two-year limitation period set out in section 56 of the Schedule and is therefore barred from proceeding with her Application.

8The applicant submits that the 2-year limitation period set out in section 56 of the Schedule does not apply to a minor applicant under the age of 18. She submits that she is protected by section 6 of the Limitations Act which suspends a limitation period when a claim involves a minor. She argues that the limitation period does not start to run until she reaches the age of majority or she is represented by a litigation guardian.

The Law

9The limitation period for accident benefits claims is set out in section 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. In order for section 56 of the Schedule to be triggered, the insurer must have provided a valid notice of the denial.

10Section 4 of the Limitations Act 2022, S.O. 2022, c.24, (“Limitations Act”) establishes a basic limitation period of two years from the day the claim was discovered. Section 6 of the Limitations Act provides that the limitation period established in section 4 does not run during any time which the person is a minor and not represented by a litigation guardian in relation to the claim.

Does the Limitations Act apply to the Applicant?

11I find that the current jurisprudence supports a finding that the Limitations Act applies to disputes over entitlement to accident benefits.

12Relevant to the issue of whether the Limitations Act applies is whether it has jurisdiction over the Tribunal, or proceedings before the Tribunal. Specifically, whether the Tribunal is considered a “court” in the context of section 2 of the Limitations Act.

13I am bound by the Divisional Court decision in Botbyl v. Heartland Farm Mutual Inc., 2025 ONSC 3349 (“Botbyl”). In Botbyl, the Divisional Court concluded that the use of the word “court” in section 129 of the Insurance Act included the Tribunal. At paragraph [73] of Botbyl, the Divisional Court cautioned against reading the term “court” narrowly when it leads to a “denial of an appropriate and just remedy”.

14The respondent relies on the Tribunal decision in Vasudevan v. Economical Insurance Company, 2023 CanLII 81820 (ON LAT) (“Vasudevan”) where the Tribunal concluded that it lacks the authority to extend limitation periods for minors since the applicant was a minor at the time of the respondent’s denial. The Tribunal notes that the applicant had not provided any section of the Schedule nor any other legislation that would allow it to import the requirements of the Limitations Act regarding minors into the Schedule.

15The Applicant in contrast relies upon the Tribunal decisions in 17-003732 v. Royal and Sun Alliance, 2018 CanLII 39449 (ON LAT) (“Royal and Sun Alliance”) and Smai v. The Personal Insurance Company, 2025 CanLII 102223 (ON LAT) (“Smai”), where the Tribunal found that the claims related to a minor involved in an accident were subject to section 6 of the Limitations Act. These cases found that the minors involved met the criteria in section 6 of the Limitations Act because their applications for dispute resolution were completed by parents or guardians of the minor, and not by a litigation guardian. In Royal and Sun Alliance, the Tribunal found that the purpose of the Limitations Act is to protect minors who are not capable of making decisions and appreciating the consequences of their decisions and that it should apply to minors navigating the accident benefit system. The Tribunal in Smai agreed with the reasoning in Royal and Sun Alliance and concluded that the term “court” in section 2 of the Limitations Act includes the Tribunal.

16The applicant further relies upon the Court of Appeal decision in Tomec v. Economical Mutual Insurance Co., 2019 ONCA 882 (“Tomec”), which makes it clear that when faced with a choice between an interpretation that furthers the public policy objectives underlying the Schedule and one that undermines them, the only reasonable decision is to adopt the former.

17In this matter there are two possible interpretations. I find that I must choose the interpretation that further supports the overall purpose of reducing harm to persons injured in motor vehicle accidents. I find the reasoning of the Tribunal in Smai persuasive, where it held, “The applicant asks that I interpret the term “court” in the Limitations Act in a manner that is consistent with reducing the economic hardship of a minor injured in an automobile accident. This serves the purpose of expanding access to accident benefits and is consistent with the overall consumer protection theme of the Schedule.”

18In Tomec, the Court of Appeal affirmed that the Schedule is consumer protection legislation that has the goal of reducing the economic dislocation and hardship of motor vehicle accident victims. Tomec also finds that, as affirmed in Botbyl, when faced with the choice of a statutory interpretation that furthers public policy objectives underlying the Schedule and one that undermines it, the only reasonable decision is to side with the former.

19Therefore, in accordance with Tomec and Botbyl, I conclude that the term “court” in section 2 of the Limitations Act includes the Tribunal. I find that this serves the purpose of expanding access to accident benefits. The applicant’s interpretation is consistent with the overall consumer protection theme of the Schedule and is the interpretation that provides greater access to benefits.

20Having concluded that the Limitations Act applies, I now turn my attention to whether the applicant was represented by a litigation guardian at any time in relation to the claim, which would engage the limitation clock.

Was the applicant represented by a litigation guardian for her claim?

21I find that the applicant was not represented by a litigation guardian until she filed her Application with the Tribunal on July 8, 2025.

22Pursuant to section 6 of the Limitations Act, the limitation clock does not run any time in which the person with the claim is a minor and is not represented by a litigation guardian in relation to the claim.

23Section 8 of the Limitations Act states that if a person is represented by a litigation guardian in relation to the claim, the limitation clock applies as if the litigation guardian is the person with the claim.

24It is accepted by both parties that the applicant is a minor. Therefore, the analysis is whether she was represented by a litigation guardian in relation to the claim prior to submitting her Application to the Tribunal.

25The respondent submits that the applicant was represented by a litigation guardian, her mother, as early as November 27, 2019, when she submitted her Application for Accident Benefits, (“OCF-1”) with her mother’s name and signature. It further submits that all of the respondent’s letters and denials were sent to the applicant, care of her mother, and therefore she was the applicant’s litigation guardian throughout the entire claim. The applicant’s legal counsel was also copied on all correspondence and was aware of the dates of the denials.

26The applicant submits that her mother was not her litigation guardian but rather a substitute decision maker at most, at the time of submitting the OCF-1. She submits that there is no legal basis for calling her mother a “litigation guardian”, as she never applied nor was, she ever appointed as one. The applicant submits that the signing of an OCF-1 on behalf of a minor does not make that person a litigation guardian. She argues that her mother only became a litigation guardian on July 8, 2025, after signing the Representing Minors form which was attached to her Application to the Tribunal. She therefore argues that the limitation period should only begin on July 8, 2025, onwards when a litigation guardian was formally retained. The applicant relies upon the Tribunal decision in Royal and Sun Alliance.

27I find that at the Tribunal, the only step required for files dealing with minors is for the Representing Minors form to be filled out and signed by a parent, legal guardian or legal representative. This form does not outline any special oath or obligation, nor does it confirm that the person signing the form is a litigation guardian. Further, there is nothing in the LAT Rules of Practice and Procedure which says that a minor must be represented by a “litigation guardian”.

28While I am not bound by previous Tribunal decisions, I find the reasoning in Royal and Sun Alliance persuasive. The Tribunal found that while the applicant’s mother was a “legal guardian” and co-signed the OCF-1 and Authorization for legal representation, filling out an OCF-1 and applying for benefits is merely a parent taking the required steps to obtain benefits for the child. The Tribunal further found that a lawyer hired to represent someone in accident benefits claims does not make them a litigation guardian.

29I find that minors are especially vulnerable in cases involving accident benefits and could be taken advantage of. The purpose of the Limitations Act is for their protection. I therefore find that while the applicant’s mother signed the OCF-1 and was copied on the respondent’s correspondence, she did not become a “litigation guardian” until she filed the Representing Minors form on July 8, 2025. I therefore conclude that the limitation period began to run on July 8, 2025.

30For the reasons outlined above, I find that the Limitations Act applies to the applicant’s claim before the Tribunal, and that the applicant was not represented by a litigation guardian with respect to her accident benefits claim prior to submitting her Representing Minors form on July 8, 2025. Therefore, I find that the applicant is not statute-barred from proceeding with her application before the Tribunal.

Compliance with s. 44 of the Schedule

31I find that the applicant is barred from proceeding to a hearing in respect of the treatment plan for a psychological assessment dated August 3, 2020 and the treatment plan for psychological services dated January 11, 2021, because she failed to attend an insurer’s examination under section 44 of the Schedule, and she did not provide a reasonable explanation for her non-attendance.

32Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which the application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.

33Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under section 44, but the insured person has not complied with its request for attendance. The onus is on the applicant to put forth a reasonable explanation for non-attendance at an Insurer’s Examination (“IE”). The Tribunal may, under section 55(2) of the Schedule permit an insured person to apply to the Tribunal despite a failure to comply with section 44, subject to terms and conditions.

34I find upon review of the respondent’s Notice of Examination (“NOE”), dated June 11, 2021, that a Psychological IE was scheduled for July 22, 2021, regarding the treatment plan for a psychological assessment dated August 3, 2020 and the treatment plan for psychological services, dated January 11, 2021.

35By letter dated July 15, 2021, counsel for the applicant advised that her client requested to cancel and reschedule the upcoming Psychological IE due to a family emergency.

36By NOE dated July 26, 2021, the respondent rescheduled the Psychological IE to take place on October 7, 2021. A letter from the assessment centre dated September was sent to the applicant as a reminder of the October 7, 2021 Psychological IE.

37By letter dated November 5, 2021, the respondent wrote to the applicant and advised that it had received notice from the assessor that she did not attend the examination. It then advised the applicant that as a result, it determined that she is not entitled to the treatment plans for a psychological assessment and psychological services. It further advised that a review of this decision can be made following her participation in a rescheduled examination. It requested that she contact the respondent should she wish for the examination to be rescheduled and to provide a reason as to why she was unable to participate in the originally scheduled assessment.

38By letter dated February 3, 2022, the respondent advised the applicant that it reached out to the applicant’s legal representative regarding her failed attendance at the Psychological IE and has not heard back from their office.

39The respondent submits that the applicant failed to attend the scheduled Psychological IE and did not provide a reasonable explanation for her non-attendance. It relies upon the Tribunal decisions in Abbas v. Intact Insurance, 2024 CanLII 77432 (ON LAT) and Noble v. Economical Insurance, 2024 CanLII 38459 (ON LAT), where it was concluded that that the applicants were barred from proceeding to a hearing on the issues in dispute because they failed to attend a section 44 assessment and did not provide a reasonable explanation for their non-attendance.

40The applicant submits that her entitlement to medical and rehabilitation benefits is not defeated by non-attendance at IEs, particularly where one absence was explained by a family emergency and the other occurred amid the unprecedented disruptions of the Covid-19 pandemic. The applicant submits that she did not have a litigation guardian appointed to assist her in navigating the complex procedural requirements and the Psychological IE was scheduled during the height of the Covid lockdown, a period marked by severe restrictions, logistical challenges and widespread uncertainty.

41I accept the respondent’s submissions that the applicant failed to attend the rescheduled Psychological IE assessment on October 7, 2021. I find that the NOE provided by the respondent was proper and that the applicant’s failure to attend this assessment bars her from proceeding with her claim for the treatment plans for the psychological assessment and the psychological services, for the following reasons.

42First, I am satisfied that the NOE provided a comprehensive reason for the assessment which satisfies the requirements of the Schedule.

43Second, I find that the NOE was sent directly to the applicant care of her mother, and her counsel was copied. There is no evidence before me that the applicant’s address or counsel’s fax number was incorrect or that they did not receive the respondent’s NOE.

44Third, I do not accept the applicant’s submission that she did not attend the IE because she did not have a litigation guardian appointed to assist her in navigating the complex procedural requirements. I find that the applicant had retained counsel to assist her with her accident benefits claim and was in a position to guide her and answer any questions or concerns. This is supported by the fact that her counsel wrote to the respondent on her behalf to cancel the initial Psychological IE due to a family emergency.

45Fourth, I find that the applicant did not provide the respondent with a reason for her non-attendance at the Psychological IE on October 7, 2021, despite having counsel at the time. The purpose of section 44(5)(a) of the Schedule is to protect an insured from unreasonable and unnecessary assessments, not to provide a shield for the applicant not to attend. The applicant failed to advise the respondent that she would not be attending the rescheduled Psychological IE. I find that there is no evidence before me that either prior to or after her non-attendance at the Psychological IE, she communicated any reasonable explanation for her non-attendance. While the applicant claims in her submissions that she did not attend because of Covid restrictions, these concerns were never communicated or discussed with the respondent. Rather, the applicant simply did not attend the Psychological IE without any notice or follow-up to the respondent’s letter dated November 5, 2021.

46Finally, I find that the applicant has not met her onus of providing a reasonable explanation for her non-attendance at the Psychological IE. I find that the applicant is attempting to use the Covid pandemic as a justification for not attending. Again, had this truly been her concern and the reason for her non-attendance, communication with the respondent would have been reasonable. The respondent offered to reschedule the IE in its letter dated November 5, 2021, but no response from the applicant was received. I do not agree with the applicant’s submission that the respondent should have proposed another date or requested further information regarding the applicant’s constraints. It was the applicant’s obligation to provide a reasonable explanation for her non-attendance and to request alternative options if required for the scheduled IE.

47For the reasons outlined above, I find that the applicant is statute barred from proceeding with her application before the Tribunal with respect to the treatment plans dated August 3, 2020 and January 11, 2021, pursuant to section 55(1)(2) of the Schedule.

ORDER

48For the reasons outlined above, I find,

i. The applicant is not barred from proceeding to a hearing for all of the benefits claimed in this Application; and

ii. The applicant is barred from proceeding to a hearing with respect to the treatment plans dated August 3, 2020 and January 11, 2021, because she failed to attend an insurer’s examination under section. 44 of the Schedule.