CITATION: Mohamed v. Aviva Insurance Company, 2021 ONSC 7175

DIVISIONAL COURT FILE NO.: 087/21

DATE: 20211029

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Abena mohamed, Appellant AND: aviva insurance company, Respondent

BEFORE: King, Favreau and Nishikawa JJ.

COUNSEL: Arsalan Wancho, for the Appellant Candace Mak, for the Respondent

HEARD at Toronto (by videoconference): October 28, 2021

ENDORSEMENT

Favreau J.

[1] Abena Mohamed appeals a decision and reconsideration decision of the Licence Appeal Tribunal that found that she is out of time to bring an application to challenge a denial by Aviva Insurance Company of her claim for Income Replacement Benefits.

[2] Ms. Mohamed was involved in a motor vehicle accident on November 10, 2016. At the time of the accident, Ms. Mohamed worked as an office manager. On January 12, 2017, Ms. Mohamed submitted an Election of Benefit Form to her insurer, Aviva. On the form, Ms. Mohamed checked off the box that stated that she chose to receive Income Replacement Benefits. On January 16, 2017, Aviva wrote to Ms. Mohamed, advising her that she was not eligible for Income Replacement Benefits because the total days she missed work did not equal the waiting period required for the benefits. The letter included information about how Ms. Mohamed could challenge that decision. Ms. Mohamed claims that, at the time she filled out the form, she was trying to do her job, but that she had to stop working in February 2017 due to accident related injuries.

[3] Ms. Mohamed commenced an application to the Tribunal on April 30, 2019, which was more than three months after the two-year statutory deadline set out at section 56 of the Statutory Accident Benefits Schedule, O. Reg. 24/10.

[4] Aviva brought a motion in writing to have the application dismissed on the basis that it was out of time.

[5] In a decision dated August 13, 2020, the Tribunal found that the application was statute barred. The Tribunal first determined that Aviva’s denial complied with the principles in Smith v. Co-operators General Insurance Co., 2002 SCC 30, at para. 14. At para. 15 of its decision, the Tribunal found that Aviva’s denial letter “satisfied the basic requirements of Smith because it stated the reasons for the denial ([Ms. Mohamed] was not off from work for the required time period); it clearly indicates she is not eligible for an [Income Replacement Benefit] on this basis; and it provides, in straightforward language, the dispute process available to [Ms. Mohamed] if she disagreed”. On this basis, the Tribunal found that the denial was valid and that the limitation period for making an application to the Tribunal expired. The Tribunal also refused to exercise its discretion under section 7 of the Licence Appeal Tribunal Act,1999, S.O. 1990, c.12, to extend the time for commencing an application. The Tribunal found that Ms. Mohamed did not provide evidence of a bona fide intention to appeal during the appeal period, she did not provide an adequate explanation for her delay and there would be prejudice to Aviva in allowing the appeal to proceed given that it issued a valid notice letter.

[6] Ms. Mohamed sought reconsideration of the Tribunal’s decision. The Tribunal denied this request in a decision dated December 21, 2020. In doing so, the Tribunal reviewed the arguments made by Ms. Mohamed’s counsel, and found that it had not made any errors of fact or law in finding that the application was statute barred.

[7] An appeal to the Divisional Court from a decision of the Tribunal can only be brought on a question of law: see subsections 11(1) and (6) of the Licence Appeal Tribunal Act, 1999. The standard of review on a question of law is correctness.

[8] This Court, in Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 (Div. Ct.), at para. 28, explained what constitutes an error of law:

On a statutory appeal limited to questions of law alone, the court considers whether the decision-maker correctly identified and interpreted the governing law or legal standard relevant to the facts found by the decision-maker. There are limited circumstances in which findings of fact, or the administrative decision-maker’s assessment of evidence, may give rise to an error of law alone for the purposes of appeal. If the adjudicator ignored items of evidence that the law required him or her to consider in making the decision, then the adjudicator erred in law: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at para. 41. Challenges to the sufficiency or weight of evidence supporting a finding of fact do not give rise to a question of law. An error in law or legal principle made during the fact-finding exercise, however, can give rise to an extricable question of law. A “misapprehension” of the evidence does not constitute an error of law unless the failure is based on a wrong legal principle: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 25 and 29. It is an error of law to make a finding of fact on a material point where the factual finding is based solely on (a) no evidence, (b) irrelevant evidence, or (c) an irrational inference (Johannson v. Saskatchewan Government Insurance, 2019 SKCA 52 at paras. 24-25). [Emphasis added]

[9] In this case, the appellant has not identified any errors of law.

[10] The Tribunal applied the correct legal test for determining whether Aviva’s notice was sufficient. The Tribunal also exercised its discretion not to extend the time on correct legal principles

[11] Ms. Mohamed argues that the Tribunal made an error of law by making an irrational inference. Specifically, she argues that it was irrational for the Tribunal to conclude that Aviva’s denial of Income Replacement Benefits in its letter of January 16, 2017 was valid given that she was still working at that time and did not yet intend to make a claim for Income Replacement Benefits. The Tribunal’s finding that Ms. Mohamed applied for Income Replacement Benefits and that Aviva’s notice was valid is not an error of law. In its decision, the Tribunal considered this argument and made a finding of fact that Ms. Mohamed applied for Income Replacement Benefits in January 2017 by ticking the relevant box on the Election of Benefit Form. This was not an irrational inference and cannot be challenged on this appeal.

[12] Ms. Mohamed also argues that the Tribunal erred in law in finding that she did not have a valid explanation for her delay in bringing the application to the Tribunal. She says that the Tribunal failed to consider that she was in the hospital for a period of time. The Tribunal did make a finding that Ms. Mohamed’s explanation for the delay was unsatisfactory, relying in part of her ongoing communications with Aviva throughout the relevant period. In its reconsideration decision, the Tribunal explicitly addressed Ms. Mohamed’s hospitalization but found that this was not a sufficient explanation for the delay given that she was represented by counsel throughout the relevant period. Again, this is not an error of law. In exercising its discretion not to extend the time period, the Tribunal found that Ms. Mohamed’s explanation for the delay was insufficient, a finding that fell within the Tribunal’s discretion.

[13] Ms. Mohamed also argues that the Tribunal made an error of law in its application of the Smith test. Specifically, he argues that the Tribunal should not have accepted Aviva’s position that the notice letter triggered the start of the limitation period in circumstances where she was working and had no intention at that time to ask for Income Replacement Benefits. In making this argument, Ms. Mohamed relies on arbitration decisions where similar arguments were accepted. However, those decisions were decided based on the facts in those cases and do not establish any legal principles that the Tribunal failed to follow in this case.

[14] In our view, Ms. Mohamed’s appeal does not raise any questions of law. As held in Yatar, at para. 30, whether there was a valid denial of benefits and whether the limitation period is triggered are issues of mixed fact and law. This Court does not have jurisdiction to grant the relief requested on this appeal.

[15] The appeal is dismissed.

[16] As agreed between the parties, Aviva is entitled to costs of $5,500.

Favreau J.

I agree _______________________________

King J.

I agree _______________________________

Nishikawa J.

Date: October 29, 2021