RECONSIDERATION DECISION

Before: Deborah Neilson, Adjudicator

Date: September 5, 2019

File: 18-001196/AABS

Case Name: [S.S.] vs. Certas Home and Auto Insurance Company

Written Submissions by:

For the Applicant: Christina Campoli, Counsel

For the Respondent: L. Kathleen Watson, Counsel

I. OVERVIEW

1This request for reconsideration, filed by the respondent insurer, arises from the Tribunal’s preliminary issue decision dated September 24, 2018 on whether the applicant’s claims were barred by a limitation period. The Tribunal exercised its discretion to extend the limitation period for the applicant’s claims for non-earner benefits (“NEBs”), attendant care benefits (“ACBs”) and a neurological assessment. The respondent submits that the Tribunal exceeded its jurisdiction, made significant errors of law and fact and that there is new evidence that could not be obtained earlier that would have affected the result. It seeks an order dismissing the applicant’s claims for NEBs, ACBs and the neurological assessment on the basis the applicant missed the limitation period in s.56 of the Schedule for commencing an appeal to the Tribunal for those benefits.

2Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the LAT Rules.¹

II. RESULT

3The respondent’s request for reconsideration is accepted and the applicant’s claims for non-earner benefits, attendant care benefits and a neurological assessment are dismissed.

III. BACKGROUND

4The applicant was involved in a motor vehicle accident on April 28, 2015. As a result of the accident, he suffered injuries to his back, neck, left shoulder, left knee/foot, a fracture to his lumbar spine, pain, headaches, dizziness and psychological impairments. He sought and received benefits from the respondent pursuant to the ''Schedule''.² After the respondent denied the applicant’s claims for NEBs, his request for further medical benefits and for payment for cost of examinations, he applied to the Tribunal.³ The respondent sought a determination from the Tribunal that the applicant was barred from proceeding with his claims before the Tribunal because he missed the two year limitation period in s.56 of the Schedule.

5The Tribunal made two principal findings in its decision, as follows:

(i) The applicant’s appeal was filed after the expiry of the prescribed two year limitation period for all the benefits claimed; and

(ii) The applicant’s appeal was permitted to proceed under s.7 of the Licence Appeal Tribunal Act.⁴

IV. ANALYSIS

6The grounds for a request for reconsideration are contained in LAT Rule 18. The grounds that the applicant argues applies to this case are LAT Rule 18.2(a), (b) and (d):

(a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;

(b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made; and

d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.

7Specifically, the respondent submits that the Tribunal exceeded its jurisdiction as follows;

(a) exceeded its jurisdiction by finding that that it has the jurisdiction under s. 7 of the LAT Act, to extend the limitation period; and

(b) exceeded its jurisdiction and violated the rules of procedural fairness by reversing the burden of proof when it required the respondent to show that the applicant does not meet the test for granting an extension of the limitation period.

(c) the Tribunal violated the rules of procedural fairness and erred in law because in the absence of evidence bona fide intention to appeal, the Tribunal weighed the submissions of the applicant on the issue as if it was evidence.

8Additionally, the applicant argues that the Tribunal erred:

(a) in law because the Tribunal failed to consider each of the four factors outlined in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002 with respect to the applicant’s claim for payment of cost of examinations for the neurological assessment;

(b) in law because the Tribunal found that the Manuel factors are not strict elements that must each be met in order to grant an extension of time, but a guide to assist in determining the justice of the case;

(c) in law and fact in finding that there was bona fide intention to appeal the denial of the neurological assessment or attendant care benefits based on submissions and not evidence;

(d) erred in law by reversing the onus for proving delay when it required the respondent to prove that it was not blindsided by the delay and that the delay was unreasonable;

(e) erred in law and fact by finding the respondent was not prejudiced by the delay by placing the onus on the respondent to show it was not prejudiced by finding that ongoing adjusting of the claim was evidence that the respondent was not prejudiced; and

(f) erred in fact in finding there was merit to the applicant’s claim by finding the applicant was declared catastrophically impaired based on an application for catastrophic impairment.

10The respondent also submits that there is evidence that was not available to the Tribunal that the applicant was not catastrophically impaired. I am not persuaded by the applicant’s arguments that the Tribunal made any jurisdictional or other errors of fact or law. Nor am I persuaded that if the Tribunal did make any errors, a different decision likely would have been reached but for the error.

a) Exceeded Jurisdiction

11The Tribunal determined that it had jurisdiction to extend the time for the applicant to appeal under s.7 of the LAT Act. The respondent submits this is an error of law and reiterates its two argument as follows:

(a) on a plain statutory interpretation, s.7 of the LAT Act does not apply because the limitation period in is fixed under a regulation – the Schedule – and not “by or under any Act” as the language of s. 7 dictates; and

(b) section 7 does not apply because a LAT application is not a notice requiring a hearing.

(a) Limitation Period Fixed by Regulation

12The respondent submits that the Tribunal erred in finding that s.7 of the LAT Act applies to limitation periods fixed under a regulation. The Tribunal rejected the respondent’s argument and stated at paragraph 10 the following:

the limitation period in question is contained within a regulation, the Schedule, which in turn was enacted under an Act, the Insurance Act. Put a different way, the applicable limitation period is one that is prescribed under an Act.

13The applicant relies on the reconsideration decision of A.F. v. North Blenheim Mutual Insurance Company⁵ and submits that that the Tribunal’s analysis was endorsed in A.F. v. North Blenheim. The Executive Chair in A.F. v. North Blenheim determined that Legislature’s intention was for s.7 of the LAT Act to apply to apply to statutory accident benefit claims because there was nothing in s.7 of the LAT Act excluding Insurance Act matters. However, the respondent’s argument about the difference between a regulation and an Act was not before the Executive Chair in A.F. v. North Blenheim. Nor was the Executive Chair asked to consider that both “Act” and “regulation” are used in s.3 of the LAT Act, which refers to the duties assigned to the Tribunal “by or under any Act or regulation.” However, in s.7 of the LAT Act, only “Act” is used. If “by or under any Act” is meant to include regulations made under an Act, then the use of “regulation” in s.3 of the LAT Act is redundant. Such an interpretation is contrary to the principles of interpretation adopted by the Supreme Court of Canada as follows:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.⁶

14The Executive Chair in A.F. v. North Blenheim was not asked to consider the definitions of “Act” and “regulation” in s.87 of the Legislation Act, 2006.⁷ Under the Legislation Act,2006, the definition for “Act” is different from the definition for “regulation.” Under s.87 of the Legislation Act, 2006, the word “statute” has the same meaning as the definition of “Act.” To read into the definition of “regulation” that it has the same meaning as “Act” or “statute” would result in a change to the legislative process for enacting laws.⁸ It would mean that the law (under a statute) would not have be subject to repeal, amendment or revocation by the Legislature, but by the Lieutenant Governor in Council, a minister of the Crown, an official of the government or a board or commission. This is contrary to the powers conferred under the Legislative Act.

15I also find the respondent’s argument is persuasive because the Insurance Act used to have a section that imposed a limitation period for accident benefit claims that was repealed when the dispute resolution process was transferred to the Tribunal.⁹ If the Legislature had intended to give the Tribunal the discretion to extend the limitation period for appealing a denial of accident benefits, the limitation period in s.281.1 (1) of the Insurance Act would not have been repealed, but would have been amended to state that it was subject to the discretion of the Tribunal in accordance with the LAT Act. Instead, only s.56 of the Schedule imposing a limitation period was amended. That amendment allows the Tribunal to permit an applicant to apply to the Tribunal, despite the applicant’s failure to submit to an insurer’s examination under s.55(1) 2 of the Schedule or when the dispute relates to an invoice that is under investigation under s.55(1)3 of the Schedule.¹⁰ The Schedule is silent on whether the Tribunal may extend the limitation period. However, the amendment to s.121(1)26 of the Insurance Act effective April 1, 2016 gives the Lieutenant Governor in Council the power to make regulations governing the proceedings before the Tribunal, including the imposing time limits or limitation periods. Section 7 of the LAT Act could have been amended to include “regulations,” but was not, even though s.11(1) and (6) of the LAT Act was amended to include the Insurance Act. If the Tribunal’s reasoning is accepted, the amendments and repeals would have to be considered oversights or errors by the Legislature, which I do not accept. I agree with the respondent that on a plain reading, the Legislative intent was to remove the limitation period from the jurisdiction of s.7 of the LAT Act, as it is no longer a limitation of time fixed by or under any Act, but rather it is fixed under a regulation. Accordingly, I find that the Tribunal erred in law in finding that it had the discretion under s.7 of the LAT Act to extend the limitation period designated by a regulation and not an Act. For these reasons, the Tribunal erred in law in determining that it had the discretion to extend the limitation period in s.56 of the Schedule.

16The respondent submits that the Tribunal erred in finding s.7 of the LAT Act does not apply because a LAT application under s.280(2) of the Insurance Act is not a “notice requiring a hearing” as required by s.7. I need not consider this submission given my finding above. However, if s.7 of the LAT Act had included limitation periods made under regulations, I would have found no error in the Tribunal’s analysis that a notice requiring a hearing includes an application to the Tribunal under s.280(2) of the Insurance Act. Accordingly, this portion of the respondent’s application for reconsideration is dismissed.

b) The Manuel Test

19Given my determination that the Tribunal erred in law in finding it has a discretionary power to extend the limitation period in s.56 of the Schedule, I need not consider the respondent’s alternate argument, that the Tribunal erred in exercising its discretion.

V. CONCLUSION

20For the reasons noted above, I find that the Tribunal erred in law in finding that it has the jurisdiction under s.7 of the LAT Act to extend the limitation period in s.56 of the Schedule.

21The Tribunal determined that the applicant missed the limitation period for his claim for NEBs, attendant care benefits and the neurological assessment. There was no request for a reconsideration of these findings. Because the Tribunal has no discretion to extent the limitation period in s.56 of the Schedule, the applicant’s claims for these benefits are dismissed.

Deborah Neilson

Adjudicator

Tribunals Ontario – Safety, Licensing Appeals and Standards Division

Footnotes

1. 1Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) ["LAT Rules"]
2. 2Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10.
3. 3Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal")
4. 4Licence Appeal Tribunal Act, 1999, SO 1999, c. 12, Sch G ("LAT Act")
5. 5A.F. v. North Blenheim Mutual Insurance Company, 2017 CanLII 87546 (ON LAT), LAT File 16-002336/AABS ("A.F. v. North Blenheim")
6. 6Rizzo & Rizzo Shoes Ltd. (Re) [1998] 1 S.C.R. 27, 1998 CanLII 837 (SCC), at paragraph 21 citing Elmer Driedger in Construction of Statutes (2nd ed. 1983).
7. 7Legislation Act, 2006, SO 2006, c 21, Sch F
8. 8Under s.7 (1) of the Legislation Act, every Act reserves to the Legislature power to repeal or amend it and to revoke or modify any power or advantage that it confers.
9. 9s.281.1 (1) Insurance Act, RSO 1990, c I.8 was repealed on April 1, 2016.
10. 10s.55(2) of the Schedule.