) ) Tracy Adams Appellant – v. –, 2024 ONSC 715

CITATION : Tracy Adams v. Aviva Insurance Company, 2024 ONSC 715 DIVISIONAL COURT FILE NO.: 385/23 DATE: 20240207 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Edwards, D.L., Shore, S., Leiper, J. BETWEEN: ) ) Tracy Adams Appellant – and – Aviva Insurance Company of Canada Respondent ) ) ) ) ) ) ) ) ) Kenneth Ciupka, for the Appellant Nicholas Maida, for the Respondent ) ) ) HEARD: January 24, 2024 Edwards, D.L., J.

Overview [ 1 ] This is an appeal by the Appellant, Tracy Adams, of an underlying decision and of a reconsideration decision of the Licence Appeal Tribunal (the “Tribunal”), which held that Adams’ application for statutory accident benefits ( “ SABS”) was barred because she failed to provide a “reasonable explanation” for her failure to notify the Respondent, Aviva Insurance Company of Canada (“Aviva”) of the circumstances giving rise to her claim for benefits within the prescribed timelines set out in the Statutory Accident Benefits Schedule, O Reg. 34/10 (the “

Schedule ”). [ 2 ] The Appellant submits that the Tribunal Adjudicator erred in law, and requests that the Tribunal’s decisions be set aside and that the matter be remitted to the Tribunal. BACKGROUND: [ 3 ] Ms. Adams was involved in an automobile accident on August 28, 2018. She reported the accident to the Respondent insurer on June 13, 2019. That same day, the Respondent provided the Appellant with an accident benefits package, which was completed and returned to the Respondent on October 20, 2021. The Appellant attended an Examination Under Oath on December 21, 2021.

On February 1, 2022, the Appellant was informed that the Respondent was denying her claim due to non-compliance with ss. 32(1) of the

Schedule . Preliminary Decision [ 4 ] In a decision of the Tribunal, dated January 27, 2023 (the “Preliminary Decision”), the Tribunal dismissed the Appellant’s application for insurance benefits. [ 5 ] The Tribunal stated that it was not disputed that the Appellant had submitted her application after the time period described in s. 32(1) of the

Schedule . It further noted that s. 34 of the

Schedule states that “A person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.” The Adjudicator concluded that the Appellant did not have a “reasonable explanation” for the delay and that the Appellant was barred from applying to the Tribunal because

of her failure to adhere to the SABS timelines. [ 6 ] In light of this finding the Tribunal stated that it was unnecessary to consider whether the Appellant failed to submit her application within the time limit prescribed in s.32(5) of the

Schedule . [ 7 ] Finally, the Tribunal concluded that the Appellant was precluded pursuant to s.55(1) of the

Schedule from applying to the Tribunal due to her breach of the timelines and there was no need for the Tribunal to consider whether it should use its discretion to invoke s. 55(2) of the

Schedule to permit the Appellant to continue her application to the Tribunal. Reconsideration Decision [ 8 ] On May 31, 2023, the Tribunal dismissed the Appellant’s request for reconsideration (the “Reconsideration Decision”) [ 9 ] The Appellant argued at the reconsideration hearing that the Tribunal erred in law in the Preliminary Decision in its application of ss. 32(1) , 32(10) , 34 , and 55(1) (1) of the

Schedule . The Tribunal summarized the Appellant’s argument at paragraph 7 as follows: …the gist of the applicant’s argument is that the only remedy available to an insurer for noncompliance with section 32(1) is that the insurer is entitled to delay paying or determining entitlement to a benefit in accordance with section 32(10), and that section 55(1) does not bar an application to this tribunal due to noncompliance with section 32(1). [ 10 ] On this issue the Tribunal concluded at paragraphs 9 and 10: In my view, the applicant is attempting to raise new arguments in her reconsideration request. The applicant did not argue that

section 34 of the

Schedule does not apply to section 32(1) and that it does not provide the insurer the recourse applied in denying the payment of benefits to the applicant. Nor did she argue that

section 34 does not provide the Tribunal with the statutory authority to bar her ability to apply to the Tribunal for dispute resolution. The only reference to

section 34 is found in paragraphs 22 of the applicant’s initial submissions where she states that, “section 34 of the SABS indicates that a person's failure to comply with the time limit set out in this Part [Part VIII] does not disentitle the person to a benefit if the person has a reasonable explanation”. The applicant’s submissions do make reference to sections [sic] 32(10) in paragraph 21 and 23. However, the applicant did not make clear and cogent submissions and nor did she provide any case law to support her argument.

Paragraph 23 of her initial submissions seems to suggest that the respondent relied upon section 32(10) to deny her claim for an entitlement to accident benefits. Moreover, based on my review of the respondent’s initial submissions, they did not rely upon section 32(10) to deny her claim. The applicant had the opportunity to submit the case law in advance the arguments in support of her position at the preliminary issue hearing. She failed to do so. Moreover, I am not obligated to address every single argument that a party advanced.

Jurisdiction and Standard of Review [ 11 ] On an appeal from a decision of the Tribunal, this Court has jurisdiction to hear an appeal on questions of law only; section 11(3) of the Licence Appeal Tribunal Act , 1999, S.O. 1999, c.12 (the “ LAT Act ”). [ 12 ] As for the standard of review, in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , the Supreme Court of Canada determined that “appellate standards of review” are to be applied on statutory appeals (i.e., correctness on questions of law and palpable and overriding error on questions of fact and mixed fact and law).

Because this appeal is limited to questions of law only, the applicable standard of review in this appeal is correctness: Aviva Insurance Company of Canada v. J.A. and Licence Appeal Tribunal , 2021 ONSC 3185 at para. 2 . The Law [ 13 ] A person involved in an automobile accident may seek accident benefits from their insurer. Section 32(1) of the

Schedule provides: A person who intends to apply for one or more benefits described in the Regulation shall notify the insurer of his or her intention no later than the 7th day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that date.

[ 14 ] Section 32(10) of the

Schedule states: Despite any shorter time limit in this Regulation, if an applicant fails without a reasonable explanation to notify an insurer under subsection (1) within the time required under that subsection, the insurer may delay determining if the applicant is entitled to a benefit and may delay paying the benefit until the later of, (a) 45 days after the day the insurer receives the completed and signed application; or (b) 10 business days after the day the applicant complies with any request made by the insurer under subsection 33(1) or (2). [ 15 ]

Section 34 of the

Schedule provides that “[a] person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.” [ 16 ] Finally,

section 55 of the

Schedule provides:

(1) Subject to subsection (2), an insured person shall not apply to the Licence Appeal Tribunal under subsection 280(2) of the Act if any of the following circumstances exist: 1. The insured person has not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted an application for the benefit within the times prescribed by this Regulation. 2. The insured has provided the insured person with notice in accordance with this Regulation that it requires an examination under

section 44, but the insured person has not complied with that section. 3. The issue in dispute relates to the insurer's denial of liability to pay an amount under an invoice on the grounds that, i. the insurer requested information from a provider under subsection 46.2(1), and ii. the insurer is unable, acting recently, to determine its liability for the amount payable under the invoice because the provider has not complied with the request in whole or in part.

(2) The Licence Appeal Tribunal may permit an insured person to apply despite paragraph 2 or 3 of subsection (1).

Positions of the Parties [ 17 ] The Appellant argued that the Tribunal made an error of law in the Preliminary Decision in holding that she was required to provide a reasonable explanation in accordance with s.34 for her failure to comply with the time limit prescribed in s. 32(1) , and that this failure disentitled her from claiming accident benefits. [ 18 ] She further submitted that the Tribunal made an error of law in the Reconsideration Decision in holding that the Appellant was raising a new issue upon appeal when she submitted that, in effect, s. 32(10) overrode the operation of s. 34 as it pertained to her application. [ 19 ] The Respondent submitted that the Tribunal did not err in ruling that s. 34 created a complete bar to the Appellant’s application.

Further, it asserted that the Appellant was raising a new issue on appeal when she argued that s. 32(10) saved her application, and therefore this court did not have jurisdiction to hear this appeal relying on Basuric v. Dominion of Canada General Insurance Company , 2022 ONSC 6148 , Analysis [ 20 ] First, the Appellant did not contest the Tribunal’s findings with respect to s.34 . Ms. Adams conceded that she had submitted her application after the period of time prescribed in s. 32(1) . She did not assert that the Tribunal employed the wrong legal test in ascertaining whether she had a reasonable excuse.

The finding by the Tribunal that she did not have a reasonable excuse is a finding of fact from which there is no appeal.

[ 21 ] Therefore, s.34 does not assist the Appellant. I would note, however, that s. 34 does not bar entitlement, but rather appears to act as a path to forgiveness for a missed time limit. [ 22 ] The Respondent supported the Tribunal’s findings that the Appellant was raising a new issue on appeal. However, we were provided with the submissions made by the Appellant at first instance regarding the interplay of ss. 32(1) , 32(10) and 34.

I am satisfied that she did assert, at first instance, that s. 32(10) provides the only consequence to a late delivery of an application, when the late delivery is made without reasonable excuse. The Appellant argued that s. 34 is inapplicable to s. 32(1) , as it is displaced by the specific wording of s. 32 (10) . She argued that s. 32(10) sets out the only recourse that an insurer has where an insured fails, without a reasonable excuse, to comply with the time limits prescribed by s. 32(1). [ 23 ] Curiously, in paragraph 11 of the Reconsideration Decision the Tribunal appeared to both reject and accept such

interpretation: In any event, I do not agree with the applicant’s

interpretation of section 32(10).

In my view, the purpose of section 32(10) is to provide the respondent with additional time to respond to a claim for benefits where an applicant fails without a reasonable explanation to notify the respondent of his/her intent to seek accident benefits as per section 32(1) . [ 24 ] Nevertheless, the Tribunal concluded that the Appellant was raising a new argument on appeal and denied the request for reconsideration. [ 25 ] I find that the Tribunal erred in the Preliminary Decision when it failed to consider this issue, and in the Reconsideration Decision, when it concluded that it was a fresh issue on appeal. [ 26 ] If it was not a fresh issue on appeal during the reconciliation hearing, it is not a new issue on this appeal.

It is proper for this court to hear the appeal and to remit the issue back before the Tribunal for a first instance hearing. [ 27 ] There are other issues raised on appeal but not fully argued. Depending on the Tribunal’s finding on s. 34(10), these issues may also need consideration. These include whether the Appellant failed to comply with s. 32(5) ; whether by virtue of s. 55 the Appellant was precluded from appealing to the Tribunal; and whether in these circumstances the Tribunal could exercise the discretion set forth in s. 55(2).

As I have ordered a new first instance hearing all issues may be argued then. [ 28 ] Accordingly, I order that a. The preliminary decision of Adjudicator Kaur dated January 27, 2023, is hereby set aside; b. the reconsideration decision of Adjudicator Kaur dated May 31, 2023, is hereby set aside; and c. the matter is remitted back to the Licence Appeal Tribunal for a new hearing at first instance, to be heard by a different adjudicator. Costs [ 29 ] The parties agreed that costs would be set at the amount of $3,500, inclusive of HST, payable by the losing party to the winning party.

I therefore order that the Respondent pay to the Appellant the sum of $3,500 inclusive of HST. _______________________ Edwards, D.L. _______________________ Shore S. _______________________ Leiper J. Released: February 7 th , 2024 CITATION : Tracy Adams v. Aviva Insurance Company, 2024 ONSC 715

DIVISIONAL COURT FILE NO.: 385/23 DATE: 20240207 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Edwards, D.L., Shore, S., Leiper, J. BETWEEN: Tracy Adams Appellant – and – Aviva Insurance Company of Canada Respondent REASONS FOR JUDGMENT Released: February 7 th , 2024