D.F. v. Gore Mutual Insurance Company, 2019 CanLII 122716

RECONSIDERATION DECISION

Before: D. Gregory Flude, Vice-Chair

Date: November 13, 2019

File: 17-002799/AABS

Case Name: D.F. v. Gore Mutual Insurance Company

Written Submissions by:

For D.F.: Samia M. Alam, Counsel

For the Respondent: Danielle N. Lecours, Counsel

OVERVIEW

1D.F. asks for a reconsideration of the decision of the Tribunal released on January 25, 2018. The proceeding before the adjudicator was a preliminary issue hearing to determine if D.F. had applied for a non-earner benefit (“NEB”) within the statutory time limit. The adjudicator held that D.F.’s appeal to this Tribunal was brought outside the two-year limitation period set out in s. 56 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 O. Reg. 34/10 (the “Schedule”) and dismissed the appeal.

2Pursuant to her authority under s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointment Act, 2009, S.O. 2009, c.33, Sched. 5, the Executive Chair delegated to me the responsibility to decide this reconsideration request.

3D.F. seeks reconsideration on three grounds:

(i) The adjudicator breached natural justice and procedural fairness by taking into account factors that were not properly before him without giving the parties the right to make submissions;

(ii) The adjudicator committed significant errors in law in his interpretation and application of the law and evidence such that the Tribunal would likely have reached a different decision had these errors not been made; and

(iii) In accordance with this Tribunal’s reconsideration decision in A.F. v. North Blenheim Mutual Insurance Company, N.L. v. North Blenheim Mutual Insurance Company, 2017 CanLII 87546 (ON LAT) (North Blenheim), the adjudicator should have exercised his discretion to consider s. 7 of the Licence Appeal Tribunal Act, 2009, S.O. 2009 c. 12, Sched. G (LAT Act) and permitted the appeal to proceed.

FACTS

4As stated above, the issue before the adjudicator was the timeliness of the application for dispute resolution to this Tribunal. Gore Mutual takes the position that the application was filed after the expiry of the two-year limitation period set out in the Schedule. D.F. argues that he was within time. The application to the Tribunal was received on May 4, 2017. Therefore, if Gore Mutual’ s denial of D.F.’s entitlement to a NEB predates May 4, 2015, then the application was filed beyond the limitation period.

5D.F. was injured in a motor vehicle accident on December 8, 2014 and claims that, as a result of the accident, there were injuries to his knees and shoulders, and discomfort in his neck, mid-back, and lower back. D.F. claims he experienced psychological impairments, disturbed sleep, and headaches. He also asserts that he has a complete inability to carry on a normal life, that being the test for entitlement to a NEB

6On or about March 12, 2015, D.F. filed an Application for Benefits (“OCF-1”) and, on March 13, 2015, a Disability Certificate (“OCF-3”) with the respondent, Gore Mutual Insurance Company (“Gore Mutual”). The OCF-3 noted that D.F. did not suffer a substantial inability to perform the essential tasks of his employment, nor did he suffer a complete inability to carry on a normal life or engage in caregiving activities. Gore Mutual responded by sending D.F. an Explanation of Benefits (EOB) dated March 13, 2015 outlining its position regarding what benefits D.F. was entitled to and what benefits it felt he was not entitled to. Of particular note, Gore Mutual specifically set out that D.F. was not entitled to an income replacement benefit, a non-earner benefit or a caregiver benefit. The balance of the EOB advised D.F. that it was Gore Mutual’ s position that his injuries were subject to the $3,500 treatment limit applicable to minor injuries.

7Part 6 of the EOB outlined D.F.’s right to dispute Gore Mutual’s position within two years by way of mediation at the Financial Services Commission of Ontario (“FSCO) followed by arbitration or court proceedings. There is nothing in D.F.’s reconsideration submissions that questions the adjudicator’s finding that Part 6 of the EOB properly set out the necessary steps to prosecute an appeal of Gore Mutual’s decision. I will not address the sufficiency of notice regarding the appeal process further.

8By letter dated May 6, 2015, counsel for D.F. sent a second OCF-1 to Gore Mutual. Gore Mutual responded that it had already received an OCF-1 and had sent an EOB. It enclosed a copy of the EOB and advised D.F.’s counsel that its position remained unchanged.

9Nothing in the parties’ documents submitted for the hearing indicates that D.F. ever filed another OCF-3 after March 13, 2015 either supporting or not supporting entitlement to an NEB. There is ample evidence that D.F. applied for a range of medical benefits. Gore Mutual’s response to those applications was to send D.F. for assessments by healthcare professionals of its choosing. Those assessors determined that D.F.’s impairments sustained as a result of the accident were not minor injuries. Accordingly, Gore Mutual did not subject D.F. to the $3,500 treatment cap.

Denial of Natural Justice and Procedural Fairness

10The thrust of the first ground of D.F.’s request for reconsideration is that the last paragraph of the decision addresses the substantive issues in dispute in the case. D.F. submits that, in considering the substantive issues without giving him the opportunity to make submissions, the adjudicator denied him natural justice and procedural fairness.

11I agree with D.F. that the issue referred to the adjudicator was limited to a consideration of the limitation period and did not include a review of the case on its merits. I also agree with D.F. that had the adjudicator based his decision on a consideration of the merits without further input from the parties, that omission would be a significant breach of natural justice, but that is not what he did. The paragraph does not go as far as the respondent would have it.

12In the first 26 paragraphs of the decision, the adjudicator sets out the submissions of the parties in detail. He notes that D.F. made submissions about the subjective knowledge of the Gore Mutual as it adjusted D.F.’s claims. He notes D.F.’s submission that Gore Mutual had medical evidence before it from which it could conclude that D.F. was entitled to a NEB. D.F. asserted that Gore Mutual’s failure to consider his entitlement to a NEB was improper and should have the effect of extending the limitation period. The adjudicator rejected that argument by finding that Gore Mutual’s denial was clear and unequivocal and that it met the notice requirements to start the limitation period running.

13The impugned paragraph, paragraph 27 of the decision, does nothing more that state that, in any event, D.F. had not advanced the medical evidence relied upon for the submissions about Gore Mutual’s subjective knowledge. The focus of the paragraph is set out in the last sentence:

This fact [the lack of medical evidence] calls into question D.F.’s position that the respondent was aware of a potential Non-Earner Benefit claim because of all of the medical evidence provided to the respondent.

14The adjudicator does not make a finding that D.F. is not otherwise entitled to a NEB or that he is not completely incapable of living a normal life. That issue was not before the adjudicator and he did not rule on it.

15Even if I am wrong in my interpretation of the impugned paragraph, it is clearly severable from the decision as a whole and not central to the adjudicator’s reasoning. In his analysis, he clearly delineates the chronology of events and why he finds that the application was filed beyond the limitation period. His final comments in paragraph 27 do nothing to impact that reasoning nor do they have an impact on his decision.

Serious of Errors of Law

16D.F. also alleges that the Adjudicator made a serious error of law by not following and applying the finding in D.S. v. Certas Home and Auto Insurance Company, 2016 CanLII 73693 (ON LAT) (Certas). The facts in Certas are substantially different from the facts in the current case. Certas does not address limitation periods as the adjudicator makes quite clear at paragraph 13 where she distinguishes limitation period cases, stating that the application was brought well within the limitation period. Rather, it addresses itself to the question of whether an application for a non-earner benefit is properly brought even though there is no Disability Certificate indicating a complete inability to live a normal life. Those are not our facts. Whether D.F. was entitled to bring an application for a NEB despite a non-supportive Disability Certificate is not in issue in this case. The timing of the application is in issue.

17Similarly, the other two cases relied on by D.F., M.R. and Aviva Insurance, 2017 CanLII 33650 (ON LAT) and A.H. and Allstate, 2017 CanLII 39722 (ON LAT) afford no assistance to D.F. In neither case was the limitation period an issue. I acknowledge that in A.H. and Allstate the adjudicator did address the limitation period, but she did so solely for the purpose of finding that the application was brought within two years of the date of denial. She allowed for five days for service of the insurer’s denial letter dated September 25, 2014 and found the effective date of receipt was October 2, 2014. Since the application was filed on September 27, 2016, it was within the limitation period.

18The appellant alleges other serious errors of law: the adjudicator failed to consider the medical evidence and he failed to take into account the respondent’s failure to examine the appellant. I would not give effect to either of these arguments. The issue before the adjudicator was the applicability of a limitation period. It was unnecessary for him to consider evidence other than evidence relating to the timing of the denials and the application to the Tribunal. He focussed on those issues notwithstanding his last paragraph may have become the basis for the first ground of the application for reconsideration. He made no error of law in doing so.

19I also find no error in the adjudicator not considering the fact that the insurer did not schedule any medical examinations. The insurer had made its position clear when it received an unsupportive Disability Certificate. D.F.’s remedy was to apply to this Tribunal for a remedy within two years. I note that D.F. never did file a supportive Disability Certificate. D.F. provided me with no binding authority either that a blanket denial is not a valid denial or that the failure of an insurer to conduct insurer’s examinations extends the limitation period.

20In finding that D.F. provided me with no binding authority on the extension of a limitation period, I am cognizant of the fact that the D.F. relies on two decisions from the Financial Services Commission of Ontario (FSCO): Beltrame and Dominion of Canada General Insurance Company (FSCO A12-001522, June 13, 2014) (Beltrame) and Moran and Economical Mutual Insurance Co. (FSCO A13-001759, April 1, 2016) (Moran). While I am not bound by FSCO decisions, they can be persuasive. I find neither case particularly on point or persuasive.

21In Beltrame, the applicant had filed three Disability Certificates, none of which were supportive of entitlement to a NEB. The primary issue in Beltrame was whether, in the absence of a supportive Disability Certificate, the applicant could proceed with arbitration. In this, the adjudicators finding is in line with Certas and A.H. and Allstate above. The adjudicator then goes on to suggest that, notwithstanding three non-supportive Disability Certificates, these certificates were not for the purpose of seeking a NEB. She held it was open to an applicant to file Disability Certificates for specific benefits. I am not persuaded by this interpretation. Applying her reasoning to the present facts, given that D.F. has never filed a supportive Disability Certificate, it follows that there has been no application for a NEB and the Tribunal has no jurisdiction to hear this matter. This line of reasoning runs directly counter to D.F.’s position set out in the Request for Reconsideration that D.F. was always seeking a NEB and Gore Mutual was well aware of that fact.

22Moran is of no assistance to D.F. either, since it addresses the application of the two-year limitation period to a minor. Its focus is primarily on what constitutes a litigation guardian for the purposes a commencing the running of the limitation period.

23I am bound by the Court of Appeal decision in Haldenby v. Dominion of Canada General Insurance Co., 2001 CanLII 16603 (ON CA). Haldenby holds that there is only one limitation period that commences when an insurer first denies a benefit. Accordingly, I would not give effect to D.F.’s submissions that the adjudicator made a serious error of law that would have altered the outcome.

Failure to consider s. 7 of the LAT Act.

24Section 7 of the LAT Act gives the Tribunal the discretion to extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and give the directions that it considers proper as a result of extending the time, if there are reasonable grounds for doing so. D.F. did not argue the applicability of s. 7 at first instance, but since the decision of the Executive Chair in North Blenheim, it is clear that the Tribunal is under an obligation to point out this provision and give the parties the opportunity to make submissions

25North Blenheim incorporates the test set out by the Divisional Court in Manuel v. Registrar, 2012 ONSC 1492, an appeal from this Tribunal. The Court reasserted that the focus of the enquiry is the justice of the case, but in analyzing the justice of the case, the Court set out four factors for consideration:

1. The existence of a bona fide intention to appeal;
2. The length of the delay;
3. Prejudice to the other party; and,
4. The merits of the appeal.

26D.F. bears the onus of establishing the necessary factual foundation for the elements of the test. I find that D.F. has failed to do so and that the justice of the case requires that I do not exercise my discretion to grant and extension of time to file an appeal.

27D.F.’s Request for Reconsideration does not address the merits of the appeal in any detail. The submissions on merit are limited to one paragraph:

44. With respect to the final prong, although entitlement to the non-earner benefit need not be proven here, the Applicant submits that his claim for NEBs should proceed on its merits. His claim for a specified benefit is a contractual one with his first party insurer. It is not a frivolous or unfounded claim.

28I accept D.F.’s submission that entitlement to a NEB need not be proven here, but there should be some evidence before me upon which to make a determination that D.F.’s case has some merit. In the absence of specific submissions from D.F. I have briefly reviewed the medical record in the hearing brief. It indicates that D.F. has a complicated medical history involving suffering horrific family losses in the 2003 Iraq war as well as a serious gunshot wound. These events left him both physically and psychologically scarred. At a minimum, it is agreed by all assessors that the December 8, 2014 accident exacerbated his pre-existing severe psychological condition. On the basis of this evidence, I am prepared to find that there is evidence which, if accepted, might lead to a finding that he suffers a complete inability to live a normal life.

29The evidence of a bona fide intention to appeal must focus on the period between the conclusion of proceedings before FSCO in October 2016 and the end of the limitation period in March 13, 2017. As set out in the decision at first instance, D.F. had applied to FSCO for dispute resolution. D.F. points to this proceeding as evidence of a bona fide intention to appeal within the limitation period. The FSCO application sought an income replacement benefit. At a preliminary hearing on October 13, 2016 at FSCO, Gore Mutual refused to consent to amending the claim to a claim for a NEB and D.F. apparently withdrew his application as the FSCO file was marked “Resolved.” No further procedural steps were taken until May 4, 2017, when D.F. applied to this Tribunal.

30D.F. provides no explanation for the failure to take any procedural steps in the five months between October 13, 2016 and March 13, 2017 beyond trying to blame Gore Mutual because Gore Mutual allegedly encouraged him to withdraw his FSCO application suggesting that he had until May 2017 to file with this Tribunal. At its highest, this comment, if made, might amount to negligent misrepresentation. D.F. does not advance any facts to support the elements of negligent misrepresentation. The comment, then, can be no more than casual chat. It was up to D.F. and his legal advisors to take appropriate steps to advance his legal interests.

31D.F. asserts that the delay was not lengthy as it was only two months after the expiry of the limitation period. I beg to differ. In Manuel, the delay was five days. In addressing this submission in its decision, the Divisional Court said: “The logical consequence of this submission would be that a relatively short delay would always result in an extension, undermining the very purpose of appeal periods.” This same thought is echoed in North Blenheim where the Executive Chair states:

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.

32The final ground is prejudice to the other party. D.F. does not address prejudice to Gore Mutual in his submissions. His submissions are limited to the prejudice he will suffer if he is denied the right to proceed. In formulating the four factors for consideration, it must be assumed that the courts have considered prejudice to an applicant or plaintiff as a result of the loss of a cause of action. It asks the decision maker to focus on prejudice to the non-moving party, in this case Gore Mutual.

33To the extent that he does address prejudice to Gore Mutual, D.F. focusses on the fact that Gore Mutual always knew he intended to seek a NEB. I do not disagree. In fact, that is why Gore Mutual issued a denial letter in March 2015. It is entitled to finality in its dealings, especially following the October 13, 2016 FSCO proceeding and D.F.’s inaction for 5 months. I note Gore Mutual did not specifically address prejudice in its submissions. Given that the onus is on D.F. to establish the factual basis for finding there is no prejudice to Gore Mutual, I find that D.F. has failed to do so.

34It is important to note that the four factors considered above do not represent a checklist that definitively determines the success or failure of a s. 7 motion. They are guides to assist in determining the justice of the case. The policy enunciated Manuel and North Blenheim is that statutory limitation periods are to be given effect except in circumstances where a strict application of the time limit would work an injustice.

35The concept of injustice must incorporate, not only the prejudice of the parties, but also the public interest in the finality of proceedings as encapsulated in the two year limitation period. The Legislature has determined that, after the lapse of two-years, the interest in finality outweighs the private interests of litigants, even where that policy may have harsh results. In section 7 of the LAT Act it has allowed for the possibility that in special circumstances, LAT may extend that limitation period. It is not a catch-all where an extension is granted automatically because it may deny a litigant the right to a hearing. Weighing the factors in this case, I do not find that there are such circumstances in this case. I decline to exercise my discretion under s. 7 to extend the time for D.F. to appeal.