Tribunal File Number: 18-001196/AABS
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:
S.S.
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce
APPEARANCES
Counsel for the Applicant: Todd A. Reybroek
Counsel for the Respondent: L. Kathleen Watson
Written Hearing on: August 21, 2018
OVERVIEW
1The applicant, S.S., was injured 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. S.S. sought benefits from the respondent, Certas Home and Auto Insurance Company (“Certas”), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”).
2Certas approved treatment and has paid out a significant amount of medical and rehabilitation benefits to date. However, Certas denied S.S.’s claims for non-earner benefits (“NEBs”), attendant care benefits (“ACBs”) and a neurological assessment on the basis that he missed the applicable limitation periods. S.S. disagreed and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal” or “LAT”) for dispute resolution.
3At the case conference between the parties, Certas raised the preliminary issue that S.S. is statute-barred from proceeding with his application due to the limitation period expiring, prompting this written hearing.
PRELIMINARY ISSUE
4The following is the sole issue to be decided, as per the Case Conference Order of Adjudicator Norris, dated June 7, 2018:
I. Is the applicant statute-barred from disputing the respondent’s denials for non-earner and attendant care benefits as well as entitlement to the neurological assessment pursuant to section 56 of the Schedule and subsection 280(2) of the Insurance Act?
RESULT
5I find that S.S. may proceed with his application before the Tribunal.
ANALYSIS
The denials
6I find on the evidence that all of Certas’s denials were proper and in accordance with the Schedule’s requirements, namely that the notices of refusal to pay benefits contained straightforward and clear language, were directed towards an unsophisticated person, outlined the dispute resolution process and the relevant time limits that govern the process, and therefore started the limitation period.
7Strictly speaking, S.S.’s application was filed beyond the general two-year limitation period governing applications to the Tribunal. Indeed, there is no dispute that S.S.’s application was filed late. Instead, the focus of this hearing is to determine whether the Tribunal should exercise its discretion pursuant to s. 7 of the Licence Appeal Tribunal Act2 (LAT Act) and grant S.S. an extension to proceed with his application.
Section 7 of the Licence Appeal Tribunal Act
8Section 7 of the LAT Act affords the Tribunal statutory discretion to extend the time for commencing a proceeding in certain circumstances if it is satisfied that there are reasonable grounds for applying for the extension and for granting relief. There are four factors that the Tribunal weighs in determining whether the justice of the case requires that an extension be granted: i) the existence of a bona fide intention to appeal within the appeal period; ii) the length of the delay;
iii) prejudice to the other party; and iv) the merits of the appeal.3 These four factors, to which I refer as the “Manuel 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.4
9Certas argues that on a plain statutory interpretation, the LAT Act does not apply because the limitation period in question is fixed under a regulation – the Schedule – and not “by or under any Act” as the language of s. 7 dictates.
Further, Certas submits that s. 7 does not apply because a LAT application is not a notice requiring a hearing. I disagree.
10While the Tribunal appreciates Certas’ argument, 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. Additionally, the end result of every LAT application—though not always realized—is a hearing to resolve a dispute. Therefore, the filing of a LAT application is, in effect, a notice that will necessarily require a hearing unless the parties, by their own conduct or strategy, do not require one.
11Accordingly, for the purposes of this preliminary issue, I find that s. 7 of the LAT Act is open for consideration and an analysis of the Manuel factors is required to determine whether an extension of the limitation period should be granted.
A bona fide intention to appeal
12I find that S.S.’s handling of his NEB claim in the respective FSCO and LAT files should not be interpreted as signifying a lack of bona fide intention to proceed with his appeal within the required timelines.
13S.S.’s application for NEBs was denied by Certas on January 15, 2016. His initial application to FSCO was submitted within the limitation period on March 24, 2016. However, as a result of the dispute resolution transition from FSCO to the Tribunal, a mediation date was never set. S.S. then filed his application with the Tribunal on February 13, 2018. The applicant argues that his application to FSCO under the previous regime constitutes evidence of a bona fide intention to appeal to the Tribunal as well. Although S.S. offers no reason for the significant length of time that elapsed between his FSCO and LAT applications other than the regime change, I agree that his conduct is evidence of a genuine intention to appeal.
14With regards to the issues of ACBs and the neurological assessment, I find that
S.S. never filed an initial application at FSCO including these issues as he did with the NEBs. Rather, his application for ACBs and the neurological assessment appear for the first time in the LAT application, albeit as issues included alongside the NEB determination. Here, S.S. simply argues that he intended to appeal every denial and that his intention “applies in particular to disputing the denial of attendant care benefits.” In a similar vein, S.S. argues that he would be prejudiced if he cannot proceed with disputing the denial of his neurological assessment.
15In the absence of evidence of a bona fide intention to appeal, I am left to weigh counsel’s statement that it was always S.S.’s intention to appeal the denial against the fact that the applications were simply late. However, I question what type of evidence can be reasonably expected from a party trying to prove a bona fide intention to appeal?5 Although I stop short of making a finding on this issue, I do infer that an applicant who has received attendant care in the past and undergone a catastrophic impairment assessment recently would, indeed, have every intention to continue pursuing those benefits to support himself in the future. However, there is no evidence of this before me.
The length of the delay
16Given the ongoing involvement of both parties to this appeal, I am not prepared to make the length of delay a determining factor in this case.
17Although it is true that limitation periods provide some certainty for the parties involved, I find that the delays in question—39 days for the ACBs, 29 days for the NEB and three days for the neurological assessment—while bordering on problematic, do not constitute the sort of hiatus in the proceedings that would meet the threshold for unacceptable delay. While it is part of the Tribunal’s mandate to resolve files in a timely and expeditious manner, a delay of five weeks in the Tribunal’s calendar is, generally, not long.
18Additionally, I find on the evidence and correspondence between the parties that Certas was actively involved in the file. I find that the delay in question would not have blindsided Certas and it has not submitted evidence as to why the length of the specific delay is unreasonable.
Prejudice to Certas
19I find that Certas would not be prejudiced by proceeding with the appeal because I find that Certas has been actively engaged in handling the file from the original NEB filing at FSCO.
20Certas argues that permitting S.S. to proceed with his application despite missing the limitation deadline would undermine certainty in an industry that relies on the limitations set out in s. 56 of the Schedule. Again, while I agree that limitations are important, I do not see how extending the deadline to allow S.S.’s application to be decided on the merits would lead to uncertainty or prejudice in Certas’ evaluation or management of the file moving forward. This appeal is not in any substantive sense, a “new” appeal.
21I also find that Certas has been cooperative and attentive throughout the life of the claim, providing S.S. with the requested documentation, responding to submitted treatment plans and adjusting the file. Certas has not offered a reason why or evidence of how it is prejudiced by the delay and, based on my review of the file, it is apparent that the parties are still actively involved in adjusting other aspects of S.S.’s injuries and care. Further, Certas provided no indication that potential witnesses or medical evidence would be unavailable in the event that an extension of time in this matter were granted. Indeed, I only see prejudice to S.S., who may be deprived of a decision on his entitlement to benefits that he may very well need.
Merits of the appeal
22I find on the evidence that S.S.’s LAT application and submissions provide sufficient evidence to convince me that his appeal has some merit. I find that the medical evidence—combined with the recent catastrophic designation6 and subsequent requests for continuing catastrophic assessments by Certas—is a compelling indication that the appeal has merit and should be determined on those merits.
23The documents submitted by S.S. reveal significant injuries. I find that S.S. continually followed up with his physicians complaining of pain and attended consistently at physiotherapy and with his psychological treatment providers in an attempt to control his pain and explore his impairments. Further, the evidence reveals that S.S. has already received significant attendant care to date from outsider providers, has submitted a claim for ACBs provided by his daughter and may require a full-time caregiver in the future.
24On this basis, I find that there is merit to S.S.’s appeal and agree that the weight of the evidence and arguments from the parties should be afforded the opportunity to be evaluated by a hearing adjudicator, especially in light of the fact that S.S. may prove to be catastrophically impaired.
Discretion
25I find that it is in the interest of fairness to allow S.S. to proceed on the merits of his case despite missing the limitation period. In doing so, I exercise the Tribunal’s discretion under s. 7 of the LAT Act to extend the limitation period and allow him to proceed with his application before the Tribunal.
26After reviewing the facts of this case, I find there is significant merit to S.S.’s appeal, that there is limited prejudice to Certas and that the delay is not significant enough to disrupt procedural fairness. While S.S.’s reasons for delay were, in my view, lacking, entitlement to benefits should be determined on the merits. In the end, the paltry excuse for delay was outweighed by the other factors. Given S.S.’s recent catastrophic determination and subsequent requests for further testing by Certas, it is reasonable, in my view, to afford S.S. the opportunity to have the evidence heard by the Tribunal rather than sacrificed by the limitation period.
CONCLUSION
27For these reasons, the limitation period is extended. I find that S.S. may proceed with his application before the Tribunal, pursuant to section 7 of the LAT Act.
Released: September 24, 2018
Jesse A. Boyce
Adjudicator
Footnotes
- O. Reg. 34/10.
- 1999, S.O. 1999, c. 12, Sched. G.
- Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492.
- A.F. v. North Blenheim Mutual Insurance Company and N.L. v. North Blenheim Mutual Insurance Company, 2017 CanLII 87546 (ON LAT), at paras. 28-30.
- At paragraph 23 of Manuel, the Court indicates that there is no reason to require that a person demonstrate an intention to appeal “from the outset” and that it is sufficient if an intention to appeal is demonstrated during the appeal period.
- S.S.’s Whole Person Impairment (WPI) resulted in a 60% WPI, meeting the catastrophic threshold. See: OCF-19, dated February 26, 2018; Catastrophic Impairment Determination by 101Physio, dated February 26, 2018.