16-002606 v North Blenheim Mutual Insurance Company, 2018 CanLII 112139

Date: 2018-08-28

Tribunal File Number: 16-002606/AABS

Case Name: 16-002606 v North Blenheim Mutual Insurance Company

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

Between:

Applicant

Applicant

and

North Blenheim Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Robert Watt

APPEARANCES:

Counsel for the Applicant: Miguel Maruszki

Counsel for the Respondent: Richard Shaheen

HEARD: Written Hearing: May 7, 2018

OVERVIEW

1The applicant was injured in a motor vehicle accident on March 24, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule-effective September 1, 2010 (the “Schedule”).

2The applicant made claims to North Blenheim Mutual Insurance Company on March 24, 2014, for various types of benefits. Her claims were denied on April 30, June 11, June 17, and August 7, 2014.

3The applicant submitted an application to the Licence Appeal Tribunal- (the “Tribunal’) on September 9, 2016.

4After a hearing on March 13, 2017, adjudicator Avvy Go found that the applications made by the applicant were statute barred.

5A reconsideration decision was made on December 13, 2017, ordering a rehearing on the issue as to whether an extension of time should be granted under Section 7 of the LAT ACT. The Reconsideration Decision also dealt with the issue of Section 7, and Sections 280 and 56, and found no conflict between the sections.

6The parties have consented to a written hearing to determine whether an extension of time should be granted to the applicant under s.7 of the LAT ACT.

7The applicant has apparently filed an appeal in the Ontario Divisional Court, to determine whether the preliminary decision as to the limitation period was correct. That hearing has been adjourned, pending the completion of this hearing.

ISSUES IN DISPUTE

8The reconsideration decision made on December 13, 2017, directed the Tribunal to decide the following narrow issue;

a. Should an extension of time under Section 7 of the LAT ACT, be granted to the applicant, for commencing a proceeding under the Schedule?

RESULT

9No extension of time under Section 7 of the LAT ACT is granted to the applicant to commence a proceeding under the Schedule.

BACKGROUND

10The applicant filed an application for mediation at FSCO on March 24, 2016, which was within the time limits as set out in the Schedule.

11The applicant received notification from FSCO on May 5, 2016, that the mediation was set for May 24, 2016.

12On May 6, 2016, representatives from both parties agreed by telephone to reschedule the mediation date. This agreement for rescheduling the mediation date was not confirmed with FSCO by the applicant. The mediation never took place.

13FSCO in its notice dated May 5, 2016, advised the parties that mediation is deemed failed, unless settlement is achieved within 60 days of the filing of the application. The notice also stated that it was not necessary to complete mediation at FSCO, in order to proceed to LAT.

14FSCO informed the parties on May 19, 2016, that it was closing their file.

15The applicant’s counsel contacted the Tribunal on July 6, 2016, and was advised by LAT, that an application had to be filed with LAT to dispute the issues set out in the Application for Mediation.

16On July 25, 2016, the applicant’s counsel was again advised by LAT, that the 90 day rule to apply for arbitration post-mediation no longer applied.¹

17The applicant filed her application with the Tribunal on September 9, 2016, more than two years after her claims were denied on April 30, June 11, June 17, and August 7, 2014.

ANALYSIS

18The applicant has filed material for this hearing by way of an affidavit of the applicant’s counsel’s staff. This affidavit claims that they were advised by LAT staff that there was a grace period and that applications were being accepted beyond the two year period. There was no written confirmation from LAT attached to the affidavit, to support the advice allegedly given. Only the Tribunal can extend any limitation period following applications to be filed.

19Under the FSCO regime, which applied before April 1, 2016, the Insurance Act and Schedule provided 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.

20As of April 1, 2016, s. 56 of the Schedule requires a proceeding to adjudicate a Schedule –related dispute, to 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 any dispute adjudicated was to commence a proceeding at the Tribunal.

21Section 7 of the LAT ACT allows the Tribunal to extend the time for giving notice either before or after the expiration of the limitation of time, if the Tribunal is satisfied that there are reasonable grounds for applying the extension and for granting relief.

22The courts have set out four factors to determine whether the justice of the case requires that the extension be granted:²

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

b. The length of the delay;

c. Prejudice to the other party; and,

d. The merits of the appeal.

23The four factors are not strict elements that 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.³

24The appellate courts have held:

i. The consideration of extending a time limit in these decisions is initiated at the request of the moving party seeking the extension;

ii. A long lapse of time contributes to the prejudice that a respondent might suffer from prolongation of proceedings.⁴

iii. The first two factors of the test may be sufficient to justify dismissing a request to extend a time limitation if other factors do not carry much weight.⁵

iv. The general rule is that time for an appeal is not extended unless the appellant has shown that these factors apply to an extension…..the appellant bears the onus of establishing the necessary factual foundation.⁶

EXISTENCE OF A BONA FIDE INTENTION TO APPEAL WITHIN THE APPEAL PERIOD

25The applicant fails to explain why she did not confirm with FSCO the mediation date for May 24, 2016, which was agreed upon by the parties to be rescheduled. The new date had apparently been agreed upon between the parties, on May 6, 2016.

26The applicant did file an appeal on September 9, 2016, well over the two year period after the claims were denied on April 30, June 11, June 17, August 7, 2014.

27There is no evidence before me as to why the applicant, after contacting LAT on July 6, 2016, and on July 25, 2016, did not file the application with LAT. The applicant knew at this time that an application had to be filed. The instructions from LAT were very clear. Filing at this time would have been within the two year period for two of the denials of the applicant’s claims.

28The applicant did file a treatment plan on June 29, 2016, for further medical benefits. On August 25, 2016, the applicant submitted an OCF-19 to determine if the applicant has sustained a catastrophic impairment. These plans however have nothing to do with the issue of submitting an application to appeal the respondent’s decisions on April 30, June 11, June 17, and August 7, 2014, denying the applicant’s claims for benefits. A catastrophic impairment assessment dated February 8, 2017, found that the applicant did not meet the test for a catastrophic impairment.

29The applicant has not set out any reasonable explanation for the delay. As set out in the Manuel v Ontario case, there has been no evidence to show extenuating circumstances such as illness, accident, or personal crisis of any sort to offer a reasonable or credible explanation for failure to file on time. ⁷

LENGTH OF DELAY

30There has been a delay in the applicant’s filing of the application on September 9, 2016, being approximately 1-5 months for the four claims that were denied. The delay caused further hearings to decide preliminary issues. This means that if the applicant’s claims were to go forward to a hearing on the merits of the issues, that the hearing would be taking place at least four years after the denials of the applicant’s claims.

PREJUDICE TO THE OTHER PARTY

31The failure to proceed in a timely matter with the application, prejudices the respondent in having to locate, produce and rely on old evidence that may not be available any more. Any hearing, if there is to be one, will take place at least four years from the time that the applicant’s claims were denied. The choice of hearing process has not yet been decided at this stage by the parties.

32LAT’s mandate is to promote timely and efficient resolution, of SABS disputes, relying on accurate evidence.

MERITS OF THE APPEAL

33I have no knowledge on the evidence provided to me of the merits of the applicant’s claims that were denied. No evidence was provided to me to assist me on the issue of the merits of the applicant’s claims.

34The applicant did not address the merits of the appeal by giving explanations on the application issues that were denied by the respondent. The applicant indicated that there are serious issues in dispute that deserve full engagement before the Tribunal. The applicant indicated that she apparently stands to lose entitlement to income replacement, attendant care, and medical benefits if her application is dismissed. However the merits of those issues were not elaborated on by the applicant, so the Tribunal cannot assess the merits of the applicant’s claims.

35I find that although the applicant initially filed her application with FSCO, once the application was dismissed, the applicant took no reasonable steps to re-file with LAT, as she was told by LAT to do, in order to proceed with her appeal.⁸

36I find that no reasonable explanation has been provided by the applicant as to why the applicant did not file with LAT within the two year limitation period, when the applicant had the opportunity to do so. The applicant has not provided any evidence setting out reasonable extenuating circumstances as to why the appeal was not filed with LAT within the proper time.

37I find that the respondent will be prejudiced if the applicant is given extended time to proceed with her application. The respondent’s, (as well as the applicant’s evidence), evidence, if the application was allowed to proceed, may not now be available, or may not be able to be presented fairly and accurately, when presented, because of the time delay, witness availability, and witness memory as to the evidence collected over four years ago.

ORDER

38I am not granting an extension under section 7 of LAT Act to the applicant and I am therefore dismissing his application.

Released: August 28, 2018

___________________________

Robert Watt, Adjudicator

Footnotes

1. 1Applicant’s Written Submission para 14
2. 2Manuel v Registrar, Motor Vehicle Dealers Act 2002, 2012 ONSC 1492
3. 3Reconsideration dated December 13, 2017 para 30
4. 4Miller Manufacturing and Development Company v. Alden (1979) 199 carswellOnt,2578 (Ont. C.a.) para 6 Tab 31
5. 5Ibid para 6 Tab 31
6. 6Supra above Note 1 para 17, Tab 31
7. 7Supra above note 1 para 28, 29 Tab 31
8. 8Applicant’s written submissions para 13