Yatar v. TD Meloche Monnex

The claimant appealed the Divisional Court’s dismissal of her judicial review application, in which the Divisional Court held that judicial review of a LAT decision should only be granted in exceptional circumstances. The Court of Appeal upheld the decision dismissing the judicial review, but modified the grounds on which judicial review could be sought. The Court of Appeal held that judicial review of the LAT should only be heard in the rare case where the adequate alternative remedies of reconsideration, together with a limited right of appeal, are insufficient to address the particular factual circumstances of a given case. The Divisional Court retains the discretion to hear and determine judicial review applications. Where a party commences both an appeal and a judicial review of a LAT decision, the matters ought to be joined and heard simultaneously. In terms of the claimant’s judicial review, the Court of Appeal held that the Divisional Court correctly dismissed it because the LAT’s decision that the claimant disputed her entitlement to IRBs outside of the limitation period was reasonable.

Tagoe v. The Personal Insurance Company (21-001366)

A preliminary issue hearing was held to determine whether the claimant was barred from proceeding with his claim for IRBs due to failure to commence his application within two years after the insurer’s refusal to pay the amount claimed. Adjudicator Corapi concluded that the claimant was statute-barred from proceeding with his application for IRBs and declined to extend the limitation period under s.7 of the LAT Act. The claimant had taken one day off following the accident and then worked full-time with certain limitations for about 16 months. An initial OCF-3 was submitted May 17, 2016 that indicated the claimant was able to return to work on modified hours/ duties and was advised not to return to work but did so due to financial reasons. The insurer notified the claimant he was not eligible for IRBs and pointed out the claimant had continued to work. A second OCF-3 was submitted on December 5, 2019 that stated the claimant was unable to return to his pre-accident work and to any modified hours or duties. The insurer responded that its position remained the same and the applicant was statute-barred from disputing the IRB denial. The claimant argued that the insurer had not communicated in the two year period that his IRBs were statute-barred. The claimant submitted that the insurer’s denial letter did not meet the “clear and unequivocal test” because it had not clearly stated whether the claimant’s IRBs were being denied and stated that the claimant both qualified and did not qualify for IRBs. Adjudicator Corapi wrote it was important to note the relevant requirements under section 5(1)1 and 6(2)b of the SABS that defined the level of impairment that the claimant had to suffer for IRB entitlement and the requirements changed over the time of the accident. In regard to s.7 of the LAT Act, there are four strict factors that the Tribunal weighs to determine the justice of the case for an extension to be granted. Adjudicator Corapi determined the insurer’s denial was valid and the claimant had provided no compelling reason to grant a limitation extension. Although the insurer issued a proper denial, Adjudicator Corapi found that the claimant’s action of submitting a second OCF-3 almost 3 years later was an indication the claimant believed his application for IRBs was still an option. However, the factor outlined in Manuel stated there must be a bona fide intention to appeal, which the claimant did, but almost 8.5 months after the deadline. Adjudicator Corapi found the claimant had not provided compelling evidence of a bona fide intention to appeal. There was an extraordinary lapse of time in the claimant’s appeal given the facts of the case. The adjudicator also found that the insurer would be prejudiced as it procedurally met the requirements for its denial and this would invite a second opportunity for the claimant to claim an IRB. An extension would undermine the certainty of the limitation period that insurers rely upon. The claimant would also bear the burden of defending an additional claim after several years without medical assessments to address it. The merit of the claimant’s claim was limited due to his return to work following the date of loss. Adjudicator Corapi also found the merits of the claimant’s case for post-104 IRBs was not strong as her would have to establish eligibility for benefits within the first 104 weeks after the accident to qualify under s.5 of the SABS.

Sharma v. Allstate Insurance (2022 ONSC 803)

The claimant appealed the Tribunal’s decision that she was barred from disputing NEBs due to the limitation period. She missed the limitation period by five days. The Court allowed the appeal, and ordered the Tribunal to rehear the preliminary limitation defence with a new adjudicator. The Court held that the Tribunal erred in three ways. First, the Tribunal improperly considered the length of the delay by considering the 735 days since the denial of NEBs rather than just the five day delay. Second, the Tribunal improperly analyzed the prejudice to the insurer by considering the prejudice that may have arisen during the entire 735 days since the denial of NEBs rather than the prejudice arising over the five day delay. Third, the Tribunal erred by excluding in reconsideration a new email from the claimant’s counsel to the insurer sent on the date the limitation period expired asking if the claimant had been paid NEBs.

Mai v. Aviva Insurance Company of Canada (20-0105232)

The insurer brought a motion seeking to dismiss the application for IRBs as statute barred by section 56 of the SABS. Adjudicator Farlam held that the claimant’s application was statute-barred. The insurer submitted: (1) the claimant was statute-barred from bringing its IRB claim pursuant to section 56 as the claimant commenced the application more than two years after the insurer’s denial and, (2) the Tribunal did not have discretion under section 7 of the LAT Act to extend the limitation period. The claimant submitted that the insurer failed to adduce evidence that the denial letter was sent to the claimant, who did not discover the denial until she read the correspondence from her lawyer of August 24, 2020 and argued that the COVID regulation extended the time for her application. She alternatively sought an extension under section 7 of the LAT Act and submitted she met the grounds for an extension. Adjudicator Farlam found the insurer met its burden of proof to establish the claimant was statute-barred. On cross-examination, the claimant admitted that her lawyer received the denial letter on March 9, 2018. She also testified that she was living in Vietnam at the time of delivery of the denial letter and had not asked anyone to collect her mail. She further testified she relied on her lawyer to keep track of the limitation periods. Adjudicator Farlam found the claimant had received the denial letter on its date because her lawyer had received the denial as her agent. The COVID-19 regulation was not of assistance in this case as it came into effect after the date of the denial letter and more than two years after the denial letter. Adjudicator Farlam further indicated the claimant had failed to notify the insurer that she would be out of the country from January to April 2018 and the claimant had not provided a satisfactory explanation as to why she had not been in contact with her lawyer after IRBs stopped in March 2018. In regard to the claimant’s request for an extension of the limitation period, Adjudicator Farlam found the claimant failed to show bona fide or good faith intention to appeal within the appeal period, which ended on March 9, 2020. Adjudicator Farlam indicated the claimant had excessively delayed filing her IRB claim with the Tribunal more than 5 months after the limitation period expired. Adjudicator Farlam stated that the insurer would be prejudiced and uncertainty would result to the insurer if the statutory limitation period was disregarded. The insurer was also denied the opportunity to obtain evidence as to the applicant’s ongoing medical and vocational state during the last several years.

Mijatovic v. The Co-operators (19-012215)

The claimant applied to the LAT disputing entitlement to IRBs. The insurer brought a preliminary motion arguing that the claimant was barred by the two-year limitation period. The claimant applied to the LAT on November 1, 2019 after 5:00 pm. The insurer denied IRBs on November 2, 2017. The insurer argued that the claimant’s LAT application was deemed to be filed on November 4, 2019, which was the next business day, and that therefore the claimant’s application was outside the two years. The claimant noted that the insurer denied IRBs on November 2, 2017 via fax and that as the deadline would have been November 2, 2019, a Saturday, she argued that her deadline actually expired on November 4, 2019, being the next business day. Adjudicator Makhamra agreed with the claimant. The two-year limitation expired on November 4, 2019, because two years after the denial, November 2, 2019, fell on a Saturday. Therefore, the claimant’s LAT application, deemed received on November 4, 2019, was served within the two-year period.

Varriano v. Allstate (2021 ONSC 8242)

The claimant was in an accident in September 2015. He was paid IRBs until December 2015. In a December 30, 2015 EOB letter, the insurer notified the claimant that: “Your Income Replacement Benefit has been stopped on December 2, 2015, as you returned to work full-time on December 2, 2015. No further Income Replace Benefit will be paid after this date.” In July 2018, the claimant applied to the insurer to resume his IRBs on the basis that he was forced to stop working as a result of accident-related injuries. The insurer denied the claim, stating: “Please refer to our explanation of benefits dated December 30, 2015. Our position remains unchanged.” In September 2018, the claimant applied to the LAT seeking entitlement to IRBs. The insurer argued that the claim for IRBs was time-barred because the claimant failed to apply to the LAT within two years of the December 30, 2015, IRB termination letter. The issue before Adjudicator Boyce was whether the December 2015 letter complied with the requirement in s. 37(4) of the SABS to provide “medical and any other reasons” for the decision to terminate IRBs. Adjudicator Boyce found that the insurer was not required to provide medical reasons for its denial of IRBs under s. 37(4), the December 2015 letter was a proper refusal under s. 56 of the SABS, and the limitation period had expired. A request for reconsideration was dismissed. The claimant appealed to the Divisional Court. Justice Mandhane allowed the appeal, finding that the December 2015 letter did not comply with s. 37(4) or case law requirements for medical and other reasons because it did not refer at all to the claimant’s medical condition or the specific provisions of the SABS that it relied upon to deny benefits. Justice Mandhane held that “insurers are not required to manufacture medical reasons where they do not exist, but to be explicit as to whether or not such medical reasons support denying or limiting coverage. If they explicitly deny having medical reasons to support their determination, the Applicant will come to understand that their disability or “impairments” is not currently in issue.” Pursuant to the Court of Appeal decisions in Sietzema and Bonaccorso, the insurer argued that even if the reasons in the December 2015 letter were deficient, the limitation period was triggered because the denial was clear and unequivocal. Justice Mandhane found that “Sietzema and Bonaccorso are of limited assistance because the Court was considering the proper interpretation of the pre-2010 SABS, which did not explicitly require ‘medical and any other reasons’ as part of the insurer’s decision to deny IRBs. The Court of Appeal’s narrow focus on the clarity of the insurer’s ultimate decision to deny benefits cannot be justified in the face of the legislature’s 2010 amendments….” Justice Mandhane found that the December 2015 letter was not a valid refusal and did not trigger the running of the limitation period.

Perrigard v. Primmum Insurance Company (19-010651)

The claimant applied to the LAT disputing entitlement to IRBs and a medical benefit. The insurer brought a preliminary motion arguing that the claimant was barred from proceeding with the dispute as he applied to the LAT more than two years after the denials. Adjudicator Boyce agreed with the insurer and dismissed the claimant’s medical benefits dispute. With respect to IRBs, the claimant had argued that the insurer’s denial letter did not comply with section 37 as it did not include medical and other reasons. Adjudicator Boyce disagreed and noted that when an insured returns to work, an insurer was not required to fabricate a medical reason for stopping an IRB, as the medical reason is the return to work. With respect to the disputed medical benefit, Adjudicator Boyce found the insurer’s denial letter to be clear and it provided medical reasons, being that the claimant was discharged from treatment. The insurer also argued that the claimant was barred from applying to the LAT disputing IRBs pursuant to s. 55. Adjudicator Boyce noted that the insurer’s s. 44 notices complied with the SABS and there was correspondence indicating that the claimant was fully aware of the IEs but chose not to attend. Adjudicator Boyce dismissed the claimant’s IRB claim based on s. 55 as well.

Pena v. Allstate Insurance Company of Canada (20-007893)

The claimant applied to the LAT disputing entitlement to IRBs. The insurer brought a preliminary motion arguing that the claimant was barred from disputing entitlement due to the two-year limitation period, as the application was made six years after the accident. Adjudicator McGee disagreed and found that the claimant could proceed with his dispute. Adjudicator McGee reviewed the case law submitted by both parties and noted that the question of whether the discoverability principle applied to IRBs was unsettled. In this case, the claimant returned to work after the accident and worked for a number of years. The insurer terminated the claimant’s IRB within the 7-day waiting period because of his return to work. Then, several years later, the claimant was unable to work and renewed his claim for IRBs. The insurer argued that the initial denial letter started the limitation period clock. Adjudicator McGee disagreed finding that it would be unreasonable and unfair to expect insured persons to make premature claims based on the possibility of not working in the future. Adjudicator McGee found that it would be an absurd result to expect that where an insured continues to work and mitigate losses that they should also dispute a denial of an IRB premised on their return to work. Adjudicator McGee found that even if she was wrong about the limitation period and discoverability, she would use her discretion afforded by s. 7 of the Licence Appeal Tribunal Act to extend the limitation period.

Allen v. Certas Home and Auto Insurance Company (19-014152)

The claimant applied to the LAT disputing her entitlement to NEBs. The insurer raised a preliminary motion arguing that the claimant’s dispute was barred by the limitation period, as it was commenced two years after a valid denial. Adjudicator Flude agreed with the insurer and dismissed the claim. The insurer denied the claimant’s NEBs on two occasions: first after receipt of an unsupportive OCF-3 and second in response to counsel’s request to pay the claimant NEBs. In the second denial, the insurer wrote: “Please provide our office with the Disability Certificate (OCF-3) supporting the Non-earner benefit for further consideration”. Adjudicator Flude held that both letters constituted a valid denial and that the second denial did not “muddy the waters.” Adjudicator Flude relied on supportive case law to determine that the second denial was no more than the insurer keeping an open mind as the original OCF-3 did not support NEBs. Moreover, Adjudicator Flude dismissed the claimant’s argument that the failure to check off the “not eligible/stoppage of benefit” box created ambiguity. Adjudicator Flude also noted that the claimant was represented by counsel during this time. Adjudicator Flude found that he would not exercise his discretion to extend the limitation period per s. 7, noting that the delay of five years after the insurer’s denial was a major consideration.

Mohamed v. Aviva Insurance Company (2021 ONSC 7175)

The claimant appealed the Tribunal’s decision that the limitation period barred her claim for IRBs. The Court dismissed the appeal as the Tribunal did not commit an error of law. The Tribunal applied the correct legal test for determining whether the insurer’s denial was sufficient. The Tribunal also exercised it discretion not to extend the limitation period applying the correct legal principles. The claimant’s arguments primarily turned on findings of fact which were not reviewable by the Court on appeal. The Court also noted its decision in Yatar v. TD had held that whether a valid denial of benefits and whether a limitation period is triggered are issues of mixed fact and law.