Category: Limitation Period

V.M.L. v. Aviva General Insurance Company (18-001713)

This Request for Reconsideration was filed by the claimant following a decision by the Tribunal that she was statute barred from proceeding with her appeal of the insurer’s refusal to pay an IRB and the Tribunal’s decision not to extend the limitation period by way of section 7 of the LAT Act. Vice Chair Maedel concluded that the claimant was permitted to proceed with her application to dispute the denial of IRBs. Vice Chair Maedel considered the four Manuel factors and found that there was no prejudice to the insurer in a 13-business day delay in filing the appeal. Counsel for the claimant failed to ensure that the appeal was filed in a timely manner, but Vice Chair Maedel determined that this should not prejudice the claimant who maintained a bona fide intention to dispute the denial of the IRB. As a result, the case warranted an extension of the limitation period to allow the claimant the opportunity to dispute the insurer’s denial of her IRB claim.

Raveenthiran v. Aviva Insurance Canada (19-014703)

The preliminary issue in this matter was whether the claimant was statute barred from proceeding with her claim pursuant to section 56 of the Schedule. Adjudicator Lake found that the claim for IRBs could proceed as it was not barred under s. 56 of the Schedule. Adjudicator Lake concluded that the insurer did not deliver the IRB denial letter to the claimant in accordance with section 64 of the Schedule. The letter was deemed by Adjudicator Lake to have been delivered according to the Schedule in February 2020. The insurer failed to prove on a balance of probabilities that the letter was mailed/faxed to the claimant in August 2017. Adjudicator Lake concluded that the insurer failed to comply with section 64(19) of the Schedule as there was no fax confirmation page or fax cover sheet provided and the insurer’s witness had no independent recollection of mailing the letter. As a result, Adjudicator Lake found that the claimant was not statute-barred from proceeding with her application for IRBs to the Tribunal as she filed her application to the Tribunal before the expiry of the two-year limitation period based on the delivery of the IRB denial letter in February 2020.

Mohammad v. The Dominion of Canada General Insurance Company (20-000007)

The claimant sought entitlement to benefits following an accident that occurred on August 28, 2015. At the case conference, the insurer raised the preliminary issue that the claimant was statute-barred from proceeding with his claim under s. 56 of the Schedule because he failed to appeal its valid denial within the two-year limitation period. A written hearing was scheduled, but claimant’s counsel was removed from the record prior to the deadline for the parties’ written submissions, and the Tribunal did not receive the claimant’s responding submissions by the deadline or hear from the claimant again. The written preliminary hearing proceeded. Adjudicator Boyce found that the claimant was statute-barred from appealing the denial of his claim under s. 56, as he failed to commence his appeal within two years of a valid denial. Adjudicator Boyce found that the insurer’s notice met the Smith requirements and that the claimant failed to provide any evidence or details or any exceptional circumstances or reasons as to why the application was not commenced within the two-year limitation period. Further, he did not offer submissions as to why the Tribunal should exercise its discretion to extend the limitation period under s. 7 of the Licence Appeal Tribunal Act. Despite the lack of communication and participation from the claimant, Adjudicator Boyce was satisfied that the Tribunal facilitated a fair, open and accessible process. Any further delay would offend Rule 3.1(b), which is meant to ensure efficient, proportional and timely resolution of the merits of the proceedings.

Alakoozi v. ACE INA Insurance (20-000516)

The claimant sought entitlement to benefits following an accident that occurred on December 15, 2016. At the case conference, the insurer raised the preliminary issue that the claimant was statute-barred from proceeding with his claim under s. 56 of the Schedule because he failed to appeal its valid denial within the two-year limitation period. Adjudicator Chakravarti concluded that the claimant was statute barred from proceeding with his claim for IRBs from July 11, 2017 onwards, but that the claimant could proceed with his claim related to the weekly quantum of IRBs prior to July 11, 2017 as the application was commenced within two years following the denial. Adjudicator Chakravarti found that there were two denials of IRB: the first denial was the denial of ongoing IRB entitlement as of July 11, 2017. The second denial was on March 16, 2018 wherein there was a determination of the weekly quantum of the IRB for the period of time prior to July 11, 2017. The LAT application was filed on January 20, 2020. As the application was filed prior to the expiry of the limitation period, the claimant was not barred from proceeding with his application on the issue of weekly quantum of IRBs prior to July 11, 2017.

Shih v. Economical Insurance (20-005669)

The claimant sought entitlement to Income Replacement benefits and three treatment plans. The insurer raised a limitation defence in accordance with s. 56 of the Schedule. The insurer argued that the claimant failed to challenge the denial of the IRB and two of the three treatment plans within the two-year limitation period. Adjudicator Mazerolle found that the claimant was entitled to proceed with her application for IRBs, but not the two treatment plans. Both parties accept that more than two years had passed between the three denial dates and the filing of the application on May 8, 2020. However, both parties had differing positions on whether the statutory bar under s. 56 applies. Adjudicator Mazerolle found that the claimant was entitled to pursue her claim for IRBs as the limitation period (started by the April 17, 2018 denial) was suspended before the two-year mark due to the COVID Limitations Regulation. Section 2 of that Regulation was clear that any and all requirements to act within a certain period of timeframe within the province of Ontario were suspended as of March 16, 2020. This clear language provided no indication that there was a need to establish the pandemic “contributed or caused” the late filing. Rather, the freeze was automatic, and was in place at the time the claimant filed her application with the Tribunal. Finally, with respect to the treatment plans, Adjudicator Mazerolle concluded that the LAT did not have the authority to use s. 7 to extend the limitation periods for the two treatment plans that were filed following the two-year mark. This point has been debated at the Tribunal, with these competing positions laid out in two often-cited cases: i.e., A.F. v. North Blenheim Mutual Insurance Company and S.S. Certas Home and Auto Insurance Company.

McQueen v. Aviva Insurance Canada (19-011429)

A preliminary issue hearing was held to determine whether the claimant’s application was statute-barred from appealing the denial of IRBs and medical benefits because the claimant failed to commence her appeal within two years. Adjudicator Paluch found that the claimant was statute barred from proceeding with her claim for IRBs and medical benefits . In Adjudicator Paluch’s analysis, he referred to the principals outlined in Smith and Co-Operators General Insurance Company to determine whether a denial was proper. Adjudicator Paluch failed to understand the claimant’s argument that the insurer’s denial date was something different than the actual date of the denial letter. Under section 56, the limitation period begins to run from the date of denial and not by the effective stoppage date of the benefit as argued by the claimant. In regard to the medical benefits, Adjudicator Paluch found the insurer had unequivocally informed the claimant of her right to dispute the denials, the reasons for the decision, the two year limitation period to dispute the claim, detailed the necessary steps to file an application and invited the claimant to contact the adjuster for assistance, if needed. The claimant had not offered any excuse for the delay in disputing the treatment plans. The claimant also sought relief from the expiry of limitation period under section 7 of the LAT Act. Adjudicator Paluch held that section 7 of the LAT Act did not apply because the limitation period for accident benefits claims is fixed under a regulation, the SABS, and not by or under any Act. Adjudicator Paluch therefore determined that he did not have jurisdiction to extend the limitation period.

A.G. v. Allstate Insurance Company of Canada (19-003687)

A preliminary issue hearing was held to determine whether the claimant was barred from proceeding with appealing a claim for neurological assessment that was denied because the claimant was past the two year limitation period. The claimant relied on section 7 of the LAT Act to allow for an extension of time to file an application. Vice-Chair Flude considered the justice of the case in order to determine whether an extension of time following the two year limitation period was applicable. He looked to the four factors that applied in the justice of the case: (1) an 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 case. The claimant did not make any submissions on an intention to appeal within the appeal period or on the length of the delay and the explanation for it. Vice-Chair Flude found those omissions to be detrimental to the claimant’s request for an extension of time because it did not allow the Vice-Chair to understand the circumstances and to determine if reasonable grounds existed. It was Vice-Chair Flude’s view that the Legislature set a two year limitation period and also gave the Tribunal the discretion to consider if any reasonable grounds to extend the limitation period. However, it was the Legislature’s intention that the discretion in section 7 of the LAT Act was to be available only in exceptional circumstances where it would be unjust to deny a claimant a remedy. In this case, the claimant did not establish anything exceptional about it and had not justified the missed limitation period. For that reason, the Vice-Chair declined to exercise any discretion in section 7. In regard to the substantive issues in dispute claiming entitlement to medical benefits for two physiotherapy treatment plans and interest, Vice-Chair Flude found the claimant failed to show the treatment plans were reasonable and necessary. The records from the extensive physiotherapy treatment showed no change in her condition as a result of the treatment. The Vice-Chair found it would be unreasonable to continue with treatment with no benefit and accepted the argument of the insurer’s assessors that further facility-based treatment would be of no medical value, instead recommending a self-directed home exercise program.

Hasford v. Aviva General Insurance (19-010256)

A preliminary issue hearing was held to determine whether the claimant was barred from appealing a denial of benefits claimed for MIG determination, IRBs, ACBs, housekeeping, medical benefit expense claims, a CAT determination and a special award. Vice-Chair Boyce held the claimant was statue-barred from appealing the denials due to the claimant’s failure to dispute the insurer’s valid denials within the two year limitation period and that the claimant had failed to demonstrate an extension of time under section 7 of the LAT Act was warranted. Vice-Chair Boyce made reference to Smith v. Co-Operators General Insurance Company in which the Supreme Court of Canada set out the requirements to satisfy there is a proper denial of benefits. Vice-Chair Boyce found the insurer’s denials to have easily met the notice requirements in Smith. The Vice-Chair indicated that the explanation of benefit letters of the insurer in this case were some of the most detailed and specific denials he had seen and went beyond the minimum notice requirements. In regard to exercising the Tribunal’s discretion to extend the limitation period under section 7 of the LAT Act, Vice-Chair Boyce did not find the claimant had bona fide intention to appeal the denials within the two year limitation period prescribed under the SABS. The Vice-Chair noted the claimant had been represented by counsel since the accident in November 2015 and the claimant’s application had not been submitted until August 21, 2019 after he obtained his third representative. The claimant failed to show any evidence of extenuating circumstances that prevented him from filing his application or from instructing his counsel to do so over the past five years. In addition, there was an absence of routine documentation and correspondence related to certain claims that might have indicated an intent by the claimant to dispute the insurer’s appeals that also demonstrated the claimant did not have the intention from the beginning to appeal. The Vice-Chair rejected the claimant’s submission that the delay in appeal did not prejudice the insurer. The Vice-Chair found the delay caused prejudice to the insurer because it had not been able to contemporaneously assess the claimant’s impairments and adjust the file accordingly for several years as the claimant remained in the MIG. Vice-Chair Boyce found the justice of the case did not warrant what would amount to a significant extension of the limitation period.

M.L. v. The Dominion of Canada General Insurance Company (19-011699)

The claimant requested reconsideration of a preliminary issues decision in which the LAT adjudicator found that the claimant was barred from proceeding with her application for certain benefits because she failed to commence her application within two years of the insurer’s refusal to pay the benefits claimed. The claimant submitted that the LAT acted outside of its jurisdiction and made errors of law by not properly weighing evidence, failing to explain how it weighed evidence, and by misconstruing the applicant’s arguments. The request for reconsideration was dismissed.

A.M. v. Aviva Insurance Company (19-004182)

The claimant requested reconsideration of the Tribunal’s preliminary issue decision barring the claimant from disputing IRBs. Adjudicator Grant dismissed the reconsideration. The claimant submitted that the Tribunal erred in equating the OCF-10 as a request for IRBs for less than the mandated seven working days lost. The claimant submitted the OCF-10 and she did not elect to receive NEBs although the OCF-3 indicated that she suffered a complete inability to carry on a normal life. The insurer submitted that this was not sufficient grounds to change the decision. There was no evidence that the claimant was not claiming entitlement to IRBs until August 14, 2019 when the claimant sent a letter to the insurer explaining the reasons for the delay in submitting the OCF-2. Adjudicator Grant considered that the claimant was represented in 2016 and there was no reasonable explanation for the delay between the January 16, 2017 notice letter and the claimant’s failure to appeal the denial before the limitation period expired. Adjudicator Grant did not find the claimant’s delay in her letter of explanation to the insurer to be reasonable. Even though the claimant had been hospitalized, the claimant’s representative could have contacted the insurer well before the limitation period to advise of the claimant’s situation. The claimant further argued that the insurer’s January 2017 denial letter of IRB entitlement was not valid when she did not stop working until February 2017. The insurer relied upon the Court of Appeal decision Sietzema v. Economical, which held that clear and unequivocal notice given by the insurer denying benefits was sufficient to trigger the limitation period. The insurer argued that if the claimant found the denial was improper, she had the right to dispute the denial within the two year limitation period. The OCF-10 submitted by the claimant electing IRBs after the completion of the OCF-1 and OCF-3 was an indication that it was applying for IRBs and was, therefore, notifying the insurer of her intent to apply for a specified benefit.