Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal Automobile Accident Benefits Service Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3 In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260 1-800-255-2214 TTY: 416-916-0548 1-844-403-5906 Fax: 416-325-1060 1-844-618-2566 Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis Service d'aide relative aux indemnités d'accident automobile Adresse postale : 77, rue Wellesley Ouest, Boîte no 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2 Tél. : 416 314-4260 1 800 255-2214 ATS : 416 916-0548 1 844 403-5906 Téléc. : 416 325-1060 1 844 618-2566 Site Web : www.slasto.gov.on.ca/fr/AABS

RECONSIDERATION DECISION

Before: Linda P. Lamoureux, Executive Chair

Date: December 13, 2017

File: 16-002336/AABS 16-002606/AABS

Case Name: A.F. v. North Blenheim Mutual Insurance Company N.L. v. North Blenheim Mutual Insurance Company

Written Submissions By:

For the Applicants: Miguel Maruszki, Counsel

For the Respondent: Richard Shaheen, Counsel

Overview

1. This reconsideration deals with two decisions in separate cases that the Licence Appeal Tribunal (the “Tribunal”) rendered under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). In both those decisions, the Tribunal determined that the applications were statute-barred by the two-year limitation period in s. 56 of the Schedule. I decided to reconsider both decisions on my own initiative. For the sake of convenience, I have dealt with them together in these reasons.

2. On September 6, 2017, I invited the parties to make submissions on the extent to which the Tribunal should have considered s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G (the “LAT Act”) before rendering its decisions. That section permits the Tribunal to extend the time period for commencing a proceeding. The parties then made submissions on this issue.

3. For the reasons that follow, I am satisfied that the Tribunal made a significant error of law by failing to consider whether an extension of time should be granted under s. 7 of the LAT Act. Therefore, I order a rehearing on the issue of whether an extension of time should be granted.

Background

4. The applicants, A.F. and N.L., were injured in a motor vehicle accident on March 24, 2014. They each made a claim to North Blenheim Mutual Insurance Company (“North Blenheim”) for various types of benefits under the Schedule. North Blenheim denied the claims at issue on June 17 and August 7, 2014 for A.F.; and on June 17, July 24 and August 7, 2014 for N.L. The two-year limitation period begins to run on the date that the claims are denied.

5. On March 24, 2016, the applicants each applied for mediation at the Financial Services Commission of Ontario (“FSCO”). This was within the then-applicable two-year statutory limitation period for commencing a mediation proceeding at FSCO. It was also approximately one week before the Tribunal assumed jurisdiction from FSCO over all new automobile accident benefit disputes commenced on or after April 1, 2016.

6. On May 5, 2016, FSCO sent a letter to the parties setting the mediation date for May 24, 2016. This date was set unilaterally by FSCO, given the “unprecedented volume of mediation applications received immediately prior to April 1, 2016.” The letter also stated that the mediation is deemed failed unless settlement is achieved within 60 days of filing the application. The parties agreed over the telephone to reschedule the mediation date, but failed to advise FSCO of their agreement. On May 19, 2016, FSCO notified the applicants that their file had been closed because the parties did not confirm the mediation date seven days in advance, as required.

7. Under the FSCO regime, which applied immediately before April 1, 2016, the Insurance Act and Schedule provided, in essence, that a proceeding to adjudicate a Schedule-related dispute must be commenced at FSCO within two years after the insurer’s refusal to pay the benefit claimed or, if one applied for mediation within that two-year period, within 90 days after the mediator reports to the parties.

8. As of April 1, 2016, the Tribunal now deals with all accident benefits disputes. As the Tribunal does not have separate mediation and adjudication steps in its process, as did FSCO, the post-mediation 90-day grace period was eliminated from the Schedule. This leaves only the requirement currently in s. 56 of the Schedule that a proceeding to adjudicate a Schedule-related dispute must be commenced with the Tribunal within two years after the insurer’s refusal to pay the benefit claimed. If a mediation failed after April 1, 2016, the only option to have the dispute adjudicated was to commence a proceeding at the Tribunal.

9. FSCO advised the applicants on May 19, 2016 that their files were closed. The applicants applied to the Tribunal for dispute resolution on August 26, 2016, which was more than two years after North Blenheim had denied their claims.

10. On March 13, 2017, the Tribunal determined that the applications were statute-barred due to the two-year limitation period in s. 56 of the Schedule. The Tribunal referred to its previous decision in P.C. and State Farm, 2016 CanLII 106918, in which the Tribunal found that the 90-day extension from the FSCO regime applied to applicants whose limitation periods expired prior to April 1, 2016 but whose mediations failed after that date. However, in the present cases, the applicants commenced the proceeding at the Tribunal more than 90 days after FSCO informed the parties that it would be closing their files. The Tribunal noted that the applicants had not pointed to any authority that allowed it to extend the limitation periods beyond the 90-day extension.

11. In its decision, the Tribunal did not consider s. 7 of the LAT Act, which allows the Tribunal to extend the time “fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal.” At my request, all parties have made submissions on the extent to which the Tribunal should have considered s. 7 of the LAT Act before rendering its decisions.

ANALYSIS

12. Rule 18.1 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) states that the Executive Chair of SLASTO may reconsider a decision of the Tribunal on the request of a party or on his or her own initiative. Rule 18.2(b) states that one of the grounds for granting a request for reconsideration is that the “Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision.”

13. I am satisfied that the Tribunal made a significant error of law by failing to consider whether to grant an extension of time under s. 7 of the LAT Act.

14. Section 7 of the LAT Act states:

Extension of time

7 Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of the Tribunal under section 11 or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,

(a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and

(b) give the directions that it considers proper as a result of extending the time.

15. Section 56 of the Schedule states that an application to the Tribunal under s. 280(2) of the Insurance Act “shall be commenced within two years after the insurer’s refusal to pay the amount claimed”. As I explain below, I find that this is a “limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal”, within the meaning of s. 7 of the LAT Act. Accordingly, the Tribunal may grant an extension of time if it “is satisfied that there are reasonable grounds for applying for the extension and for granting relief.”

16. North Blenheim argues that s. 7 of the LAT Act does not allow the Tribunal to extend the time for applying to the Tribunal in this case. It makes several submissions in that regard.

Intention of the Legislature

17. North Blenheim argues that the legislature never intended s. 7 of the LAT Act to apply to Insurance Act proceedings that are adjudicated at the Tribunal in its Automobile Accident Benefit Service (“AABS”). North Blenheim argues that by transferring automobile accident benefit disputes from FSCO to the Tribunal, the legislature did not intend to change the law on the limitation period for commencing a proceeding. North Blenheim notes that neither FSCO nor the courts had this discretion previously. North Blenheim refers to Straus v. Aviva, 2015 ONSC 4589 (S.C.J.), which states at para. 68 that the “Court of Appeal has repeatedly said that, so long as the insurer provides a valid refusal, the limitation period should be strictly applied.”

18. I disagree. Nothing in the wording of s. 7 or the LAT Act as a whole suggests that s. 7 is limited in its application to only certain types of proceedings. To the contrary, the discretion to grant an extension of time applies “[d]espite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal” (emphasis added).

19. While s. 7 of the LAT Act predates the transfer of automobile accident benefit disputes from FSCO to the Tribunal, it was open to the legislature to amend the LAT Act to exclude Insurance Act matters from the application of s. 7 of the LAT Act. In fact, the legislature did amend other provisions of the LAT Act when it transferred these matters from FSCO to the Tribunal. Subsection 11(6) of the LAT Act was added to specify that an appeal from the Tribunal to the Divisional Court on an Insurance Act matter may be made on a question of law only. Otherwise, there would have been a right of appeal on any issue, as is the case under the majority of the Tribunal’s other statutes. By contrast, the legislature chose not to amend s. 7 of the LAT Act to carve out an exception for Insurance Act proceedings. As the legislature is presumed to know the law and not make mistakes (Sullivan on the Construction of Statutes, 5th ed., p. 245), I must assume that the legislature directed its attention to s. 7 of the LAT Act and made an intentional decision not to create an exception for Insurance Act proceedings, as it did with respect to Insurance Act related matters in s. 11(6).

20. With respect to the statement in Straus v. Aviva that the limitation period should be strictly applied, that case was decided before there was express statutory discretion to extend the time for commencing a proceeding.

Form of the AABS application

21. North Blenheim also relies on procedural differences between AABS and other Tribunal proceedings to support its argument that s. 7 of the LAT Act was not intended to apply to Insurance Act matters. North Blenheim notes that other Tribunal proceedings have distinct procedures and forms, are considered “appeals”, and are commenced by a “Notice of Appeal”. North Blenheim contrasts those “appeals” with proceedings under the Insurance Act, which are called applications. As I understand it, North Blenheim’s argument is that s. 7 does not apply to AABS proceedings because of its unique procedures within LAT and does not apply to proceedings commenced by “application”.

22. The Tribunal has certain rules that apply only to AABS proceedings. It also has forms that are specific to AABS. However, I fail to see how this affects the Tribunal’s discretion to grant an extension of time under s. 7 of the LAT Act. I also note that the majority of the Tribunal’s procedural rules apply to proceedings at the Tribunal generally.

23. Nor am I satisfied that anything turns on the fact that proceedings under the Insurance Act are commenced by application as opposed to “appeals”. The word “appeal” does not appear in s. 7 of the LAT Act. Rather, that section allows the Tribunal to extend statutory time limits for “the giving of any notice requiring a hearing by the Tribunal” (emphasis added). A party who commences a proceeding at the Tribunal has a right to a hearing, regardless of whether it is called an “application” or an “appeal”. Therefore, I find that an application to the Tribunal under the Insurance Act is a “notice requiring a hearing” within the meaning of s. 7 of the LAT Act.

Whether a motion is required

24. North Blenheim also argues that because s. 7 of the LAT Act is a discretionary power, and no request for relief under s. 7 was made at the hearing, the Tribunal made no error in failing to consider it. North Blenheim argues that the Tribunal cannot extend a limitation period on its own initiative and that the requesting party must bring a motion.

25. The Tribunal may grant an extension of time under s. 7 of the LAT Act only if “the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief”. The Tribunal has consistently held in other types of matters that the onus is on the party requesting the extension to show that there are reasonable grounds for granting it. However, that does not mean that parties are required to cite s. 7 specifically in order to request that a limitation period be extended.

26. The question of the limitation period was the very issue before the Tribunal at the hearing. In essence, the applicants were arguing that they were entitled to relief from the strict application of the limitation period in their particular circumstances. Therefore, I find that it was a significant error for the Tribunal not to consider a statutory provision that expressly gave it the discretion to extend that limitation period. This is particularly the case given that the Tribunal concluded its analysis by stating that the applicants had “not pointed to any authority which would allow [the Tribunal] to extend the limitation periods beyond the 90 days extension.”

27. I also note there is no strict requirement that a request for an extension of time be made by way of a formal motion. The form of the request is a procedural choice of the Tribunal, which is guided by the need to ensure “efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal.”

The test for granting an extension of time under s. 7 of the LAT Act

28. In determining whether to grant an extension of time under s. 7 of the LAT Act, the Tribunal generally weighs the following four factors in order to determine whether the justice of the case requires that the extension be granted:

29. The existence of a bona fide intention to appeal within the appeal period;

30. The length of the delay;

31. Prejudice to the other party; and,

32. The merits of the appeal.

33. This test was approved by the Divisional Court in Manuel v. Registrar, Motor Vehicle Dealers Act, 20002, 2012 ONSC 1492. Notably, it is also the same test that courts use to determine whether to grant an extension of time to file an appeal: see Howard v. Martin, 2014 ONCA 309, at para. 26.

34. The four factors are not strict elements that must each be met in order to grant an extension of time. Rather, they are a guide to assist in determining the justice of the case. Whether to grant an extension of time depends on the specific facts of each case.

35. In considering those factors, there may be unique considerations in AABS proceedings that do not arise in other types of proceedings at the Tribunal. For example, the statutory limitation period for commencing many proceedings at the Tribunal is 15 days, whereas the limitation period under the Schedule is two years. That difference in time will undoubtedly influence the Tribunal’s consideration of the existence of a bona fide intention to commence a proceeding during that period, the length of the delay, as well as prejudice to the other party.

36. The parties have made submissions on whether an extension of time ought to be granted based on a consideration of the four factors. In my view, that determination should be made at a hearing.

Order

33. For the reasons set out above, I order a rehearing in order to determine whether an extension time should be granted under s. 7 of the LAT Act.

Linda P. Lamoureux

Executive Chair

Safety, Licensing Appeals and Standards Tribunals Ontario

Released: December 13, 2017