C.N. v. Aviva Insurance Company, 2017 CanLII 149603

Citation: C.N. vs Aviva Insurance Company, 2020 ONLAT 18-012344/AABS

Released Date: 06/30/2020

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

C.N.

Applicant

and

Aviva Insurance Company

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Jacqueline Ozor

For the Respondent:

Danielle Wilkinson

HEARD:

Via written submissions

OVERVIEW

1This file is something of a procedural rollercoaster.

2C.N. was injured in an accident on September 18, 2015, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). When C.N.’s claims for an income replacement benefit and various medical and rehabilitation benefits were denied by Aviva, he submitted an application to the Tribunal for resolution of the dispute.

3As is typical, a case conference was scheduled by the Tribunal for November 29, 2016 with notice sent out to the parties. However, C.N. failed to attend the case conference. C.N.’s representative and the representatives from Aviva did attend. It is undisputed that C.N.’s representative withdrew the application bearing Tribunal file number 16-002658/AABS on C.N.’s behalf.

4However, following the case conference, the adjudicator was concerned whether C.N.’s representative had the authority to withdraw the application on behalf of C.N. So, in the case conference report that was released to the parties, the adjudicator scheduled a second case conference for January 27, 2017.

5The second case conference took place on January 27, 2017. This time, neither C.N. nor his representative attended. Aviva’s representatives did. Attempts were made to contact C.N. and his representative without success. Thereafter, C.N. was provided with notice of the Tribunal’s intention to dismiss his appeal without a hearing due to his failure to attend two scheduled case conferences. The parties were asked to provide submissions on why the appeal should not be dismissed without a hearing, pursuant to Rules 3.4 and 3.5 of the Tribunal’s Common Rules of Practice and Procedure.

6On May 10, 2017, the Tribunal released its decision in respect of the notice to dismiss without a hearing. In response to the Tribunal’s notice, C.N. sought the Tribunal’s permission to withdraw his application, as was originally requested in the first case conference. In the decision, the Tribunal found that C.N. withdrew his application at the first case conference of November 29, 2016 and therefore the application could not be dismissed.

7Aviva then sought reconsideration and requested that the Tribunal dismiss C.N.’s hearing and award costs. In a reconsideration decision dated October 16, 2017, the Executive Chair denied Aviva’s request and upheld the Tribunal’s decision from May 10, 2017 that C.N.’s application was not abandoned but withdrawn.

8At the time of the decision, C.N. still had three months to bring forward a new application before he would be faced with any limitation issues. Yet, he did not.

9Instead, on December 12, 2018, C.N. commenced his current application under which this preliminary issue is being addressed. His current application was filed 11 months after the expiry of the first limitation of the benefits that were disputed in the first withdrawn appeal and 14 months after the Tribunal’s reconsideration decision finding the first application was withdrawn.

10The current application does not actually identify any issues in dispute but refers instead to the first application bearing Tribunal file number 16-002658/AABS and states in the related file section: “This application is further to the Reconsideration Decision of Linda Lamoureux dated October 16, 2017.”

11Adding to the confusion, in submissions C.N. seems to incorrectly reframe the issues in dispute as they were originally listed in the Tribunal’s order dated September 25, 2019 scheduling this preliminary issue hearing. C.N.’s submissions seem to propose that the issues in dispute are, first, whether he is statute-barred from re-opening his initial application and also adding “subsequent issues” due to the Reconsideration decision deeming it “neither abandoned nor withdrawn” and, second, whether he is entitled to the accident benefits listed in his initial application if he is allowed to proceed.

12Aviva disagrees and submits that C.N.’s claim should be dismissed, with its costs awarded. I turn to the actual preliminary issue in dispute.

PRELIMINARY ISSUES

13The following issues as listed in the Case Conference Order dated September 25, 2019 are in dispute:

i. Is the applicant entitled to reopen his earlier application, i.e., File no. 16-002658/AABS?

ii. Is the respondent entitled to costs for this part of the proceeding?

RESULT

14I find that C.N. is not entitled to reopen his earlier application and his claim is dismissed. I decline to order costs for this proceeding.

ANALYSIS

Is C.N. entitled to reopen his first application?

15As I understand it, C.N. submits that he is not statute-barred from “continuing” his first application in respect to his entitlement to benefits and to also add “subsequent issues” to his application. On the basis of the Tribunal’s Reconsideration decision that found his first application to be withdrawn, C.N. seems to argue the distinction that a withdrawn application can be commenced afresh with no limitation period but one that is dismissed as abandoned cannot be. Despite this argument, he then asserts that he is “well within his rights” to dispute his claim and submits that he has discharged his onus to prove that his application is “well within the limitation timeframe.” To that end, he relies on three Tribunal cases that speak to limitation periods.¹

16While C.N. offered no analysis on the authorities he provided, I find that the Tribunal cases cited by C.N. are not particularly helpful to him. Two of the cases do wrestle with extending the limitation period under s. 7 of the Licence Appeal Tribunal Act.² However, C.N. did not even reference let alone provide any substantive submissions on the four factors that the Tribunal may consider in order to extend a limitation period. The third case is very distinguishable as it dealt with an application that was not statute-barred because it was filed during the AABS transition period and properly within 90 days of a mediation. C.N. provided no other authority to support his argument that a withdrawn application is not subject to a limitation period.

17With regards to C.N.’s submission that the Executive Chair found in her Reconsideration decision that withdrawn applications can “be commenced afresh (no date limitation)”, I find the latter portion of this submission was concerningly and improperly read in by C.N. to support his argument. At para. 3 of her Reconsideration, the Executive Chair does not strip Aviva of its right to make a limitation defence against future claims. The phrase “(no date limitation)” was added to the quotation by C.N. in submissions in order to use as argument here.

18This is problematic for several reasons. Most pertinent, of course, because it is still incorrect. Section 56 of the Schedule provides that an application to this Tribunal to dispute the payment of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed. C.N. has consistently maintained that he withdrew his first application, and this was confirmed by the Tribunal in its first decision, by the Executive Chair on Reconsideration and reiterated by Aviva here. There is no question that C.N.’s first application was withdrawn. Therefore, to entertain his argument, in order to dispute the benefits listed in his first application, C.N. must have filed a new appeal which is, contrary to his submissions, still subject to the expiry of the limitation period under s. 56.

19In any event, whether C.N.’s claims are barred by s. 56 is not a question that is properly before this Tribunal. Aviva is correct that C.N. has not referenced any disputed benefits in his current application upon which a determination could be made by the Tribunal. As noted, the limitation period for the benefits in C.N.’s first application elapsed well before his current application to the Tribunal was filed: 11 months after the expiry of the first limitation and 14 months after the Tribunal’s reconsideration decision. Even if the date of withdrawal, being November 29, 2016, was somehow used for the limitation—which, for clarity, would be incorrect and is not the case here—C.N. is still out of time to re-commence his application and has not provided analysis under s. 7 to extend the limitation.

20Putting all of this aside reveals the larger issues facing C.N. and raised by Aviva. None of the Statutory Powers Procedure Act,³ the Licence Appeal Tribunal Act, nor the Tribunal’s Common Rules provide any authority for the Tribunal or an avenue for a party to revive, refresh, renew, or reopen a previously withdrawn application. I agree with Aviva’s submission that there is no express or implied authority for the Tribunal to allow a previously withdrawn application to continue. C.N. has not directed the Tribunal to any authority granting otherwise.

21Aviva correctly points out that the question in this preliminary issue hearing is whether C.N. is entitled to reopen his first application. For these reasons, I find C.N. has not satisfied his onus to prove that he can reopen his first application. I further find that a withdrawn matter cannot be reopened, refreshed, renewed, or revived so as to circumvent the limitation period established in s. 56 of the Schedule. Accordingly, C.N.’s application is dismissed.

Costs

22Aviva submits that C.N. has acted unreasonably, frivolously and in bad faith and his behaviour is worthy of attracting cost consequences under Rule 19 of the Tribunal’s Common Rules. Aviva provided particulars as follows: C.N. frivolously and unreasonably commenced an appeal with the Tribunal, disclosing no benefits in dispute whatsoever; C.N. has unreasonably and frivolously attempted to reopen his first application, notwithstanding that there is no legal basis to do so nor has he provided any legal argument to support his position; C.N.’s current application is nothing more than a bad faith attempt to circumvent the legislated limitation period under s. 56 of the Schedule; C.N. acted in bad faith by significantly misstating the issues in dispute to frame the issue in a more favourable light; and, by misquoting the Executive Chair’s Reconsideration by reading in the words “(no date limitation)” without properly notifying the Tribunal that the phrase was added by C.N. himself.

23For these reasons, Aviva submits that C.N. has demonstrated “a complete disregard for the Tribunal’s valuable resources.” It submits that C.N.’s failure to attend scheduled case conferences and abide by Tribunal orders, his attempt to circumvent the legislated limitation period, and his bad faith attempt to mislead the Tribunal is conduct that has interfered with the Tribunal’s ability to carry out a fair, efficient and effective process. Aviva requests $500 in costs, a figure which it submits only nominally reflects its actual costs for the current application and does not include the first application.

24C.N. does not directly offer responding submissions on costs but seems to rely on language from the Reconsideration decision that found he was not acting in bad faith or in a vexatious manner and was not abusing the Tribunal’s processes. While C.N.’s submissions on this preliminary issue were concerning to the Tribunal, cost considerations are confined to a specific proceeding under Rule 19.1. In this specific proceeding, having dismissed C.N.’s application, I find the prejudice to Aviva is minimal under Rule 19.5. Further, I find C.N. did not actually breach a Tribunal order and while his submissions were unhelpful at best and careless at worst, I find they did not prevent the Tribunal from carrying out a fair, efficient and effective process. I decline to order costs.

CONCLUSION

25C.N.’s application is dismissed.

Footnotes

1. 1See, S.W. v. Pafco Ins. Co. 2019 CanLII 18324 (ON LAT); Applicant v. Wawanesa Mut. Ins. Co., 2018 CanLII 13182 (ON LAT); and A.F. v. North Blenheim, (LAT Reconsideration, 16-002336/AABS dated January 13, 2017).
2. 21999, S.O. 1999, c.12, Sched. G.
3. 3RSO 1990, Ch. S.22.