) ) BHIN THI NGUYEN Appellant – v. –, 2023 ONSC 2541

CITATION : Nguyen v. Economical Mutual Insurance Company, 2023 ONSC 2541 DIVISIONAL COURT FILE NO.: 109/22 DATE: 2023/04/28 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Sachs, Stewart and Newton JJ. BETWEEN: ) ) BHIN THI NGUYEN Appellant – and – ECONOMICAL MUTUAL INSURANCE COMPANY AND THE LICENCE APPEAL TRIBUNAL Respondents ) ) ) ) ) ) ) ) ) ) ) ) ) Ashu Ismail , for the Appellant Catherine A. Korte , for the Respondent, Economical Mutual Insurance Company Valerie Crystal , for the Respondent, the Licence Appeal Tribunal ) ) HEARD at Toronto by videoconference: April 11, 2023 H. Sachs J. Overview [ 1 ] Ms.

Nguyen appeals the decision and reconsideration decision of the Licence Appeal Tribunal (the “LAT”) that time barred her accident benefit application for a declaration of catastrophic impairment and any benefits that would flow from that designation. In its decisions the LAT found that the limitation period for Ms. Nguyen’s claim had expired because it was filed more than two years after her claim was denied. Central to its decision was its finding that Ms. Nguyen received the letter denying her claim on the day it was authored. [ 2 ] Ms.

Nguyen submits that the LAT made two errors of law that require its decisions to be set aside. First, the LAT made its finding in the absence of any evidence to show that the letter in question was delivered or emailed, instead of being sent by ordinary mail. Second, the LAT relied on the fact that Ms. Nguyen had introduced no evidence to the contrary even though the onus was on the Respondent insurer, Economical Mutual Insurance Company (“Economical”), to show that the limitation period had expired. Part of satisfying this onus was establishing that Economical’s letter denying Ms.

Nguyen’s claim was received on the day it was written. [ 3 ] For the reasons that follow, I would allow the appeal and remit that matter back to the LAT for a new hearing. Background [ 4 ] On January 27, 2003, Ms. Nguyen was involved in a motor vehicle accident. She thereafter sought benefits from her insurance company, Economical. [ 5 ] On March 13, 2018, Economical wrote a letter to Ms. Nguyen denying her application for a catastrophic impairment designation. Ms.

Nguyen filed her dispute with the LAT in relation to this denial on June 2, 2020. [ 6 ] On October 7, 2021, the LAT determined that the two-year limitation period with respect to the denial letter started on March 14, 2018 and expired on March 14, 2020. Thus, Ms. Nguyen’s application was out of time. The LAT refused to exercise its discretion under s. 7 of the Licence Appeal Tribunal Act , 1999 , S.O. 1999, c. 12, Sched. G . (the “ LAT Act ” ) to extend the limitation period. [ 7 ] Ms. Nguyen (who was self represented at the initial hearing) hired counsel to file a request for reconsideration.

In that request, Ms. Nguyen argued that the LAT failed to consider s. 64(18) of the Statutory Accidents Benefits

Schedule , O.Reg. 34/10 (“ SABS ”), which states that if a letter of denial is sent by ordinary mail it is presumed to be received five business days after it is mailed absent evidence to the contrary. Thus, applying this section, if the March 13 denial letter was sent by ordinary mail, Ms. Nguyen was

presumed to have received it on March 20, 2018. [ 8 ] Ms. Nguyen also submitted that the LAT failed to consider the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 , S.O. 2020, c. 17 that came into force on March 16, 2020 and suspended all limitation periods until September 14, 2020. Therefore, if Ms. Nguyen’s deemed date of receipt of the March 13 denial letter was March 20, 2018, by operation of s. 64(18) of the SABS , the limitation period for filing her dispute did not expire until September 14, 2020 and her claim was not out of time. [ 9 ] Ms.

Nguyen filed a request that the LAT reconsider its decision and on January 24, 2022, the LAT issued its decision denying Ms. Nguyen’s reconsideration request. The LAT Decisions on the Limitation Period Issue [ 10 ] In its October 7, 2021 decision the LAT made the following findings that are relevant to the limitation period issue; (

a) First it noted that s. 56 of the SABS “provides that an application before the Tribunal in respect of a benefit shall be commenced within 2 years after the insurer’s refusal to pay the amount claimed. The onus is on the [Respondent Economical] to show that the limitation period has expired”: original decision, at para. 12. (

b) It found that “after considering all of the evidence, submissions and legal authorities put forward by the parties” Economical “had met its burden of proof to establish that [Ms. Nguyen] is barred from proceeding with her application for benefits, because she failed to commence her application within two years after [Economical’s] denial to pay the amount claimed and the limitation period expired”: original decision, at para. 20. (

c) It found that the limitation period started on March 14, 2018 (the day after the March 13 denial letter) and expired on March 14, 2020: original decision, at para. 22. [ 11 ] On January 24, 2022 the LAT gave the following reasons for denying Ms. Nguyen’s request for reconsideration: [11] On a balance of probabilities, the evidence of [Economical] establishes that the denial letter of March 13, 2018 was given to [Ms. Nguyen] on its date which started the limitation period on March 14, 2018.

This is not an error of law or fact but is my finding based on the totality of the evidence before me. […] [13] Section 64(18) of the [ SABS ] does not assist [Ms.Nguyen] because it applies only “in the absence of evidence to the contrary”. On the totality of the evidence before me, I found that the March 13, 2018 letter constituted a denial letter which started the limitation period on March 14, 2018. Implicit in this finding is the finding that [Ms. Nguyen] received the March 13, 2018 letter on its date. [Ms.

Nguyen] made no submissions to the contrary at the hearing and provided no evidence to the contrary as noted in paragraph 27 of the Decision. [14] Although [Ms. Nguyen] now submits the March 13, 2018 letter was mailed to her, there is no evidence to support this submission and [Ms. Nguyen] did not point to any in her reconsideration submissions. As a result, extension of the time limitations for COVID-19 does not assist [Ms. Nguyen] here.

Jurisdiction and Standard of Review [ 12 ] Pursuant to s.11(6) of the LAT Act the LAT’s final decisions may be appealed to the Divisional Court on a question of law alone. [ 13 ] On an appeal on a question of law, the standard of review is one of correctness: ( Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , [2019] 4 S.C.R. 653, at para. 37 . Analysis [ 14 ] In its original decision the LAT found that the applicable limitation period commenced on March 14, 2018. In its reconsideration decision the LAT confirmed that implicit in this finding was a finding that Ms.

Nguyen received the denial letter of March 13, 2018 on its date. Is there any evidence to support this finding? [ 15 ] There is no evidence to support the finding that Ms. Nguyen received the March 13, 2018 letter on its date or on March 14, 2018. She could only have done so if the letter was emailed or delivered to her. Economical provided no evidence that the letter was emailed or delivered to Ms. Nguyen. In her reconsideration request Ms. Nguyen stated that the letter was mailed to her.

[ 16 ] Whose onus was it provide when Ms. Nguyen received the denial letter? In its original decision the LAT recognized that the onus was on Economical to prove on a balance of probabilities that the limitation period had expired pursuant to s. 56 of the SABS . An essential fact that must be proved to satisfy this onus is when Ms. Nguyen actually received the March 13 denial letter as the two-year limitation period only begins to run on the date Ms. Nguyen was aware of the denial. Economical provided no evidence that Ms.

Nguyen actually received the March 13 denial letter prior to the deemed date of receipt if it was mailed (March 20, 2018). [ 17 ] Given this, I find that the LAT made two errors of law in its decision. First, it made a finding, without evidence, on a material fact, namely that Ms. Nguyen received the March 13 denial letter on its date. In Drewlo Holdings v. MPAC , 2023 ONSC 1466 (Div. Ct.), the Divisional Court cited its decision in Yatar v. TD Insurance Meloche Monnex , 2021 ONSC 2507 , where, at para. 28, the Court sets out the circumstances under which a finding of fact can constitute an error of law.

One such circumstance is when a finding of fact on a material point is based on no evidence. [ 18 ] Secondly, the LAT faulted Ms. Nguyen for providing no evidence to support her assertion that the March 13 denial letter was mailed to her. In doing so it committed a second error of law by reversing the onus of proof for establishing that the limitation period had expired. The onus was not on Ms. Nguyen to prove when she received the denial letter and the limitation period started to run.

It was on Economical. [ 19 ] These two errors mean that both LAT decisions must be set aside and a new hearing held by the LAT on the limitation period issue. Other Issues [ 20 ] The LAT found that Ms. Nguyen’s claims, other than any claims flowing from a catastrophic impairment designation, were res judicata. Ms. Nguyen was clear that she is not seeking to appeal that finding. [ 21 ] Ms. Nguyen also asserted that the LAT made an error of law in its analysis of whether it should grant leave to extend the applicable limitation period.

In view of our finding that the limitation period issue must be referred back to the LAT for a new hearing there is no need to address this issue. [ 22 ] Economical argued before the LAT that Ms. Nguyen’s application for a catastrophic impairment designation should be dismissed because of Ms. Nguyen’s non-attendance at insurer’s medical examinations. The LAT did not deal with this issue because it dismissed the claim as time barred. Thus, if on the new hearing the LAT finds that the claim is not time barred, Economical is entitled to renew its submission that the claim should be dismissed because of Ms.

Nguyen’s non-attendance at insurer’s medical examinations. Ms. Nguyen’s explanation for her non-attendance was Economical’s refusal to allow her to have these examinations videotaped. Whether this was a valid excuse for non-attendance is also an issue that the LAT may have to deal with on the new hearing. [ 23 ] In her factum Ms. Nguyen raised the issue of bias. The factum does not set out a sufficient basis for finding that the high threshold for proving bias on the part of a decision maker has been met. Conclusion [ 24 ] For these reasons the appeal is allowed.

The LAT decisions dated October 7, 2021 and January 24, 2022 are set aside and the matter is referred back to the LAT for a new hearing in accordance with these reasons before a different adjudicator. Pursuant to the agreement of the parties, Ms. Nguyen is entitled to her costs of this appeal from Economical, fixed in the amount of $5000.00, all inclusive. _______________________________ Sachs J. I agree _______________________________ Stewart J. I agree _______________________________ Newton J. Released: April 28, 2023

CITATION : Nguyen v. Economical Mutual Insurance Company, 2023 ONSC 2541 DIVISIONAL COURT FILE NO.: 109/22 DATE: 2023/04/28 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Sachs, Stewart and Newton JJ. BETWEEN: Bhin Thi Nguyen Appellant - and - Economical Mutual Insurance Company and The Licence Appeal Tribunal Respondents REASONS FOR JUDGMENT Sachs J. Released: April 28, 2023