Citation: Ambursley-Johnson v. Certas Home and Auto Insurance Company, 2026 ONLAT 24-006921/AABS

Licence Appeal Tribunal File Number: 24-006921/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:

Sareena Ambursley-Johnson

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Bernard Trottier

APPEARANCES:

For the Applicant:

Tal Eshel, Counsel

For the Respondent:

Arash Vakili, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Sareena Ambursley-Johnson, the applicant, was involved in an automobile accident on June 25, 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 Certas Home and Auto Insurance Company, the respondent, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2The preliminary issue to be decided is whether the applicant is barred from proceeding to a hearing for all the benefits claimed in this application because the applicant failed to dispute their denials within the two-year limitation period.

SUBSTANTIVE ISSUES

3The substantive issues in dispute are:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?
2. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by ALCAT Assessments Inc. in a treatment plan/OCF-18 dated June 15, 2021?
3. Is the applicant entitled to $4,980.87 for psychological services, proposed by ALCAT Assessments Inc. in a treatment plan/OCF-18 dated August 28, 2021?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that the applicant is barred from proceeding to a hearing for all the benefits claimed in this application because she failed to dispute their denials within the two-year limitation period.

5I deny the applicant’s request for relief to extend the two-year limitation period.

6Because the applicant is statute-barred from proceeding to a hearing, I need not consider the merits of the substantive issues.

7The application is dismissed.

ANALYSIS

Background and the timeline

8The parties provided the following background information, supported by documents in their evidence briefs, as agreed-upon facts for this matter.

9The applicant was involved in a motor vehicle accident on June 25, 2019. On June 22, 2021, ALCAT Assessments Inc. (“ALCAT”) submitted the disputed treatment plan/OCF-18 (“treatment plan”) for a psychological assessment. The respondent sent a Response to Medical Recommendations (“RMR”) letter to the applicant on June 26, 2021, denying the treatment plan and indicating that the applicant’s injuries fell under the Minor Injury Guideline (the “MIG”).

10On August 28, 2021, ALCAT submitted the disputed treatment plan for psychological services. The respondent sent a RMR letter to the applicant on September 3, 2021, denying this treatment plan. This second RMR letter indicated that the applicant’s injuries fell under the MIG, and that insurer’s examinations (“IEs”) would be required.

11On January 17, 2022, the respondent sent a benefit determination letter to the applicant, following IEs by Dr. Michael Fung, general practitioner and Dr. Kelly McCutcheon, psychologist. The letter indicated that the applicant’s injuries were determined to be “minor injuries” by the respondent, and that the treatment plan for psychological treatment services was not approved because the respondent had already paid for benefits to the $3,500 MIG limit.

12On May 3, 2023, the applicant sent the respondent the following information:

1. A psychological assessment report of Dr. Shirin Jazayeri, psychologist, dated June 15, 2021;
2. A progress report of Dr. Zhe Nana Hou Liu, the applicant’s family physician, dated May 27, 2021;
3. A decoded OHIP Summary, dated July 3, 2019 to March 19, 2021; and
4. Clinical notes and records (“CNRs”) of North Oshawa Physiotherapy & Foot Care, dated July 3, 2019 to December 30, 2019.

13On May 17, 2023, the respondent sent a letter to the applicant indicating that it reviewed the report of Dr. Liu, the OHIP Summary and the CNRs, and that it maintained its determination that the applicant remained within the MIG.

14On May 31, 2024, the applicant submitted an Application by an Injured Person for Auto Insurance Dispute Resolution under the Insurance Act (“the application”) to the Tribunal.

15On June 28, 2024, the applicant emailed the respondent with the application.

Parties’ positions and the onus

24The respondent submits that the applicant failed to file the application disputing the denials of benefits within the two-year time limit under s. 56 of the Schedule, and that the applicant has not demonstrated there are grounds to extend the limitation period as permitted under s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (the “LAT Act”). The respondent submits that it provided valid notices of denials, and that the applicant disputed the denials after the two-year limit had expired. For these reasons, the respondent requests an order barring the applicant from proceeding to a hearing on the substantive issues.

17The applicant did not dispute the validity of the denial notices, and she did not dispute that she filed her application outside of the two-year limitation period under s. 56 of the Schedule. The applicant argues that there are reasonable grounds for extending the limitation period under s. 7 of LAT Act.

18The onus is on the party raising the preliminary issue, in this case the respondent, to demonstrate on a balance of probabilities that the order sought under the preliminary issue should be granted.

19The onus is on the applicant to demonstrate, on a balance of probabilities, that there are reasonable grounds for extending the limitation period, and that the applicant is entitled to benefits.

Did the respondent provide valid denial notices?

20Section 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. To invoke s. 56, the respondent must demonstrate that its notice of denial was proper in accordance with the principles set out in Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 SCR 129 (“Smith”). According to Smith, the refusal to pay the benefit must contain straightforward and clear language, it must be directed towards an unsophisticated person, and it must outline the dispute resolution process and the relevant time limits that govern the process.

21If 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 initiate the two-year limitation period.

22The respondent submits that it denied the plan for a psychological assessment (issue 2) in its first RMR letter dated June 26, 2021, which it claims is the start of the limitation period for that proposed treatment plan. The respondent submits that it denied the treatment plan for psychological services (issue 3) in its benefits determination letter dated January 17, 2022, which it claims is the start of the limitation period for that proposed treatment plan.

23The respondent submits that the RMR letter of June 26, 2021, is clear and unequivocal, providing the applicant with notice of the goods and services it was refusing to pay within ten days after receiving the plan. The respondent submits that the RMR letter provides the denial in clear language, including the medical and other reasons why the respondent considered the proposed plan not to be reasonable and necessary. The respondent submits, further, that the letter included a section on the applicant’s “right to dispute” which sets out the steps for disputing the denial and emphasizing the two-year limitation period. The respondent submits that the benefits determination letter of January 17, 2022 confirmed that that the applicant remained within the MIG, provided extensive medical details with reference to the IE reports, and included a section on the applicant’s right to dispute.

24The applicant made no submissions that the RMR letter of June 26, 2021, or the benefits determination letter of January 17, 2022, were non-compliant with the principles set out in Smith.

25After reviewing the letters, I agree with the respondent that these were valid denial notices, which initiated the two-year limitation period.

Was the application filed within the two-year limitation period?

26On May 31, 2024, the applicant submitted the application to the Tribunal.

27The application was served on the respondent on June 28, 2024. Based on the evidence before me, the application was served on the respondent more than 34 months after the RMR letter of September 3, 2021, and more than 29 months after the benefits determination letter of January 17, 2022.

28I find that the application was not filed within the two-year (24-month) limitation period. For this reason, I find that the respondent has demonstrated that there are grounds for barring the applicant from proceeding to a hearing under s. 56 of the Schedule.

Discretion to extend the two-year limitation period under s. 7 of the LAT Act

29Section 7 of the LAT Act affords the Tribunal statutory discretion to extend the time for commencing a proceeding in certain circumstances if it is satisfied that there are reasonable grounds for applying for the extension and for granting relief. There are four factors that the Tribunal weighs in determining whether the justice of the case requires that an extension be granted:

1. the existence of a bona fide intention to appeal within the appeal period;
2. the length of the delay;
3. prejudice to the other party; and
4. the merits of the appeal.

30These four factors were described in Manuel v. Registrar, 2012 ONSC 1492 (“Manuel”) and are referred to as the “Manuel factors”. The appellant has the onus to establish that the justice of the case requires the granting of the extension, but he or she need not satisfy all four factors. Rather, the analysis requires a balancing of the conclusions reached when applying the facts of the case to the Manuel factors.

Was there a bona fide intention to appeal?

31On May 3, 2023, the applicant sent the respondent additional health information comprised of the psychological assessment report, the GP progress report, the OHIP Summary and CNRs described above.

32The applicant submits that the additional information demonstrates her bona fide intention to appeal the respondent’s denials. The applicant cites the adjudicator’s decision in M.G. v. Echelon General Insurance Company, 2020 87929 ON LAT, arguing that “insurers owe their insureds a duty of good faith. That duty includes conducting investigations of information presented to it and reassessing the validity of the claim as new information is received.”

33The applicant submits that, when she submitted the additional health information, 22.5 months after the RMR letter of June 21, 2021 and 15.5 months after the benefits determination letter of January 17, 2022, she demonstrated that she had a bona fide intention of disputing the denials within the two-year limitation period.

34The respondent submits that the psychological assessment of Dr. Jazayeri was conducted on May 29, 2021, predating the treatment plan submission date of June 15, 2021, in contravention of s. 38(2) of the Schedule, which states that an insurer is not liable to pay an expense in respect of an examination that was incurred before the insured person submits a treatment plan.

35The respondent submits, further, that the GP progress report, OHIP Summary and CNRs contain no information that the applicant’s physical injuries were non-minor, and contained no information related to psychological impairments.

36The respondent argues that, because the records (outside of the psychological assessment report) contained no corroborating physician-documented information related to psychological impairments, the applicant appeared to be challenging the MIG determination from a physical perspective, almost four years after the accident. The respondent argues that, because the records contained no new information related to the psychological treatment plans in dispute, the applicant failed to demonstrate a bona fide intention of appealing the denials within the limitation period.

37While I am not bound by it, I find that M.G. is distinguishable from the present matter, because the applicant in M.G. provided new diagnostic imaging related to the applicant’s claims for attendant care and other therapy, and the adjudicator found that the respondent should have revisited its denials upon receipt of the new information. In the present matter, I find that there is no physician-documented corroboration of the applicant’s claimed psychological impairments, nor any new evidence of non-minor physical injuries, which would necessitate revisiting the previous denials.

38I find that the applicant could have provided or attempted to provide Dr. Jayazeri’s report near the time of the RMR letter of June 21, 2021. I find that, if the applicant had a bona fide intention of disputing the denials on a psychological basis, she could have filed and served an application well within the two-year limitation period. I find that the applicant did not demonstrate that the other health information, provided on May 3, 2023, was a basis for disputing the denials of the psychological treatment plans as a means of disputing the MIG.

39Based on the evidence before me, I find that the applicant has not demonstrated that she had a bona fide intention of disputing the MIG determination and the disputed psychological treatment plans before the end of the two-year limitation period.

Length of delay

40The applicant submits that the benefits determination letter of January 17, 2022, denying the psychological services treatment plan, addresses issues of the same nature as the psychological assessment, and therefore January 17, 2022 is the start of the limitation period for both denials. The applicant submits that she submitted the application to the Tribunal on May 31, 2024, and therefore the length of the delay is approximately 4.5 months, which she argues is not a significant delay.

41The respondent cites three Tribunal cases where the applicants were barred from hearings because the applicant failed to dispute their denial within the two-year limitation period:

1. Rathakrishnan v. Aviva Insurance Company, 2023 50585 ON LAT, where the adjudicator found that a delay of 20 days was “not an insignificant amount of time”;
2. M.T.G. v. Aviva General Insurance, 2020 12740 ON LAT, where the adjudicator found a delay of 6 weeks was “substantial”; and
3. Fu v. Pembridge Insurance Company, 2022 124640 ON LAT, where the adjudicator found that delays of 47 days, 91 days and 108 days were “excessive”.

42The respondent argues that the delays of over 10 months and 5 months in disputing the MIG and the two treatment plans should be considered excessive.

43I find that, although the two treatment plans address issue of a similar nature, they are separate treatment plans that were submitted and adjusted independently. The costs of the treatment plans vary significantly, and they prompted materially different responses, with IEs being requested upon receipt of the second treatment plan. I agree with the respondent that the start dates for the limitation period are September 3, 2021, and January 17, 2022.

44Under s. 55(1) of the Schedule, an insured person shall not apply to the Tribunal if the insured person has not notified the insurer of the circumstances giving rise to a claim for a benefit. The applicant did not serve the application on the respondent until June 28, 2024. I find that, under s. 55(1), the application was not duly filed until the respondent was notified. I find, therefore, that the length of the delay should be calculated based on June 28, 2024, and not May 31, 2024, as argued by the applicant.

45I find that the length of the delay to dispute the denials is more than 10 months for the first treatment plan and more than 5 months for the second treatment plan. Based on the case law before me, I find that the applicant has not demonstrated that the delay in disputing the treatment plans is insignificant. To the contrary, I find the delay significant.

Prejudice to the other party

46The applicant submits that the finality of a limitation date weighs little on the respondent’s ability to defend against the applicant’s claim, and therefore there is no significant prejudice to the respondent.

47The respondent submits there would be prejudice to its case should a hearing be allowed to proceed despite the contravention of the two-year limitation period. It argues that, by the time the application was served, it did not have the ability to investigate the claims in a timely manner, including possibly conducting further IEs and/or surveillance, without the increased likelihood of obstacles such as documentation gaps or fading memories. It argues, further, that it would be prejudiced in its ability to limit potential exposure on the claim by intervening early to provide rehabilitation if reasonable and necessary.

48I find that there is prejudice to the respondent if I grant an extension to the limitation period, because the respondent would have been unable to obtain timely information regarding whether the psychological plans in dispute were reasonable and necessary, more than 34 and 29 months after they were denied. I find that the prejudice could not be sufficiently mitigated given the time elapsed since the denials and the application. For this reason, I find there is prejudice to the respondent if I grant the extension of the limitation period for commencing a proceeding.

Merits of the appeal

49The applicant submits that she simply bears the onus of establishing that there is some merit to the application. Analysis of this factor does not require me to make a determinative ruling on the merits, just to assess whether there is some merit to her claim based on the evidence before me. She submits that the psychological assessment of Dr. Jazayeri and the other medical records satisfy the onus that the application has merit.

50The respondent did not make submissions that the application has no merit.

51I find that the application has some merit based on the disputes over the applicant’s claimed psychological impairments.

Summary of findings on the Manuel factors

52I find that the applicant has not demonstrated that she had a bona fide intention of disputing the MIG determination and the disputed psychological treatment plans before the end of the two-year limitation period.

53I find that the applicant has not demonstrated that the delay in disputing the treatment plans is insignificant. I find the delay is significant.

54I find that the applicant has not demonstrated that prejudice to the respondent in extending the limitation period could be mitigated.

55I find that the applicant has demonstrated that the application has some merit.

56In weighing the Manuel factors holistically, I find that the applicant has not demonstrated that the justice of the case requires that I grant an extension of the limitation period pursuant to s. 7 of the LAT Act.

ORDER

57I find that the applicant is barred from proceeding to a hearing for all the benefits claimed in this application because she failed to dispute their denials within the two-year limitation period.

58I deny the applicant’s request for relief under s. 7 of the LAT Act to extend the two-year limitation period.

59The application on the substantive issues is statute-barred in accordance with s. 56 of the Schedule.

60Because the applicant is statute-barred from proceeding to a hearing, I need not consider the merits of the substantive issues.

61The application is dismissed.

Released: January 22, 2026

__________________________

Bernard Trottier

Adjudicator