W.R. v. Unifund Assurance Company, 2019 CanLII 40291

Safety, Licensing Appeals and Standards Tribunals Ontario Automobile Accident Benefits Service Licence Appeal Tribunal Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3 Tel.: 416-327-6500 1-844-242-0608 TTY: 416-916-0162 1-844-650-2819 Fax: 416-325-1060 1-844-618-2566 Website: www.slasto-tsapno.gov.on.ca

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Service d'aide relative aux indemnités d'accident automobile Tribunal d'appel en matière de permis Adresse postale : 77, rue Wellesley Ouest, Boîte no 250, Toronto ON M7A 1N3 Tél.: 416-327-6500 Sans frais Tél: 1-844-242-0608 TTY: 416-916-0162 1-844-650-2819 Téléc: 416-325-1060 Sans frais Téléc: 1-844-618-2566 Site Web : www.slasto-tsapno.gov.on.ca

RECONSIDERATION DECISION

Before: Dawn J. Kershaw, Vice-Chair

Date: January 10, 2019

File: 17-007103/AABS

Case Name: W.R. v. Unifund Assurance Company

Written Submissions By: For the Applicant: Marni Miller, Counsel For the Respondent: Jonathan Tatner, Counsel

OVERVIEW

1The respondent’s request for reconsideration, filed on July 9, 2018, arises from a June 18, 2018 decision of the Tribunal on a preliminary issue of whether the applicant’s appeal of the respondent’s denial of his claim for income replacement benefits could proceed (“the Tribunal’s decision”) because it was filed six days after the two year limitation period. The Tribunal found that it could, and the respondent has requested a reconsideration of that decision.

2Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

3As explained below, I deny the respondent’s request for reconsideration.

THE FACTS

4The Tribunal made two principal findings in its decision, as follows:

(a) The applicant’s appeal was filed after the expiry of the prescribed [two year] limitation period; and

(b) It permitted the appeal to proceed under section 7 of the Licence Appeal Tribunal Act.

5The respondent appealed the Tribunal’s decision, and asked that the Tribunal find:

(a) that the applicant’s appeal is time-barred;

(b) that the applicant cannot proceed with the merits of the appeal.

THE LAW

6There are limited grounds upon which a person can request a reconsideration. In this case, the applicant asserts that the Tribunal violated the rules of natural justice or procedural fairness and made a significant error of law and of facts such that the Tribunal would likely have reached a different decision had the error(s) not been made. The respondent asserts that it therefore is entitled to a reconsideration pursuant to section 18.2(b) of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”).

7Rule 18.4 of the Rules provides:

Upon reconsidering a decision of the Tribunal, the Executive Chair or his or her delegate may:

(a) Dismiss the request; or

(b) After providing all parties an opportunity to make submissions,

(i) Confirm, vary or cancel the decision or order; or

(ii) Order a rehearing on all or part of the matter.

LIMITATION PERIOD

8In considering this request for reconsideration, the entire issue depends on first determining the appropriate date upon which the limitation period began to run in respect of the applicant’s claim for income replacement benefits (“IRB”). In response to all of the grounds upon which the respondent requested the reconsideration, the applicant raises the issue of whether or not the applicant in fact missed the limitation period. Because the rest of the reconsideration request depends on the answer to this question, I begin my analysis with that issue.

9In its decision at paragraphs 13 and 14, the Tribunal stated the following:

On September 14, 2015, [the respondent] sent an Explanation of Benefits (EOB) letter, by fax to W.R.’s legal counsel. The EOB stopped IRB payments effective September 25, 2015. It explained the reason for the stoppage: an insurer’s examination (IE) report had concluded that W.R. did not meet the criteria for receiving IRBs. The IE Report was attached to the EOB letter.

On October 23, 2015, [the respondent] send another EOB, setting out its calculation for total IRB payments, and indicating the remaining amount to be paid up to the September 25th stoppage date. No further explanation is provided in this document.

10The Tribunal noted that the chronology of events, including the two paragraphs referred to above, was uncontested. The Tribunal found that the limitation period began on September 14, 2015 for various reasons, including that the October 23, 2015 EOB “was not the denial but was simply an administrative follow up intended to close the file”.

11The applicant argues, relying on Bonilla v. Preszler¹ that the limitation period should have been found to have begun on the effective date of the stoppage of IRB, specifically September 25, 2015, rather than on the date of the EOB of September 14, 2015. He argues that the fax received date for the appeal shows it was received by the Tribunal on September 22, 2017, and it therefore was not late. However, the Bonilla case does not actually decide the issue of whether or not the latter date can be used – it simply states that even if one were to use the latter date in that case, the appeal was out of time. The other cases which are referred to in Bonilla clearly refer to the earlier date as the one upon which a limitation period begins². As such, the applicant’s argument in this regard fails.

12I find that the Tribunal did not make an error when it determined the start date upon which the limitation period began to run. As such, I turn now to the applicant’s alternative argument – that the Tribunal must decide if the September 14, 2015 was in fact a clear and unequivocal denial, particularly that it contained “medical and other reasons”.

13The Tribunal’s decision stated that the IE report was attached to the EOB, and this is not disputed. Given this fact, this not a case where there were no medical reasons given. Those medical reasons would have been contained in the IE that was sent to the applicant with the EOB.

14The applicant argues that the respondent had to draw the applicant’s attention to the specific medical findings in the IE report, but provides no authority for this assertion. In this case where the IE setting out the reasons for the decision that the applicant no longer was entitled to IRB was attached to the EOB, I find that the September 14, 2015 denial was clear and unequivocal and the second EOB did not change the date upon which the denial was made. The second EOB was administrative only. It set out the calculation of the total amount of IRB’s to be paid up to the date they ceased, but in my view there was nothing in the second EOB that would change the fact that the denial date for IRB’s was September 14, 2015.

15Having found that the appeal was in fact filed late as found in the Tribunal’s decision, I turn now to the respondent’s arguments for its reconsideration request.

RESPONDENT’S GROUNDS FOR RECONSIDERATION REQUEST

16I address first the issue of whether or not the Tribunal acted outside its jurisdiction by raising the issue of section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (“LAT Act”) of its own accord. My analysis of the interplay between section 7 of the LAT Act with section 56 of the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (“SABS”) made under the Insurance Act, R.S.O. 1990, c. I.8 (“Insurance Act”) will then follow.

Did the Tribunal raise [section 7](https://www.canlii.org/en/on/laws/stat/so-1999-c-12-sch-g/latest/so-1999-c-12-sch-g.html) of the [Licence Appeal Tribunal Act, 1999](https://www.canlii.org/en/on/laws/stat/so-1999-c-12-sch-g/latest/so-1999-c-12-sch-g.html) on its own, and if so, did it exceed its jurisdiction in doing so?

17The respondent submits that the Tribunal acted outside its jurisdiction because it raised section 7 of the LAT Act on its own accord, without the applicant requesting that it do so, and relied on it to extend the time for the appeal. Section 7 of the LAT Act states:

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.

18The applicant in its submissions in the hearing had asked that the Tribunal “exercise its discretion for the ‘reconsideration’ to be permitted to be filed late” and to “grant access to procedural fairness”.

19The applicant in its submissions on this reconsideration raises another reconsideration decision of the Tribunal in A.F. v. North Blenheim Mutual Insurance Company and N.L. v. North Blenheim Mutual Insurance Company³ (“A.F.”) and submits that based on that decision there is no requirement that a party specifically raise section 7 of the LAT Act in order to have the Tribunal apply it. I agree.

20The Executive Chair held in that decision that the limitation period was at the very heart of the dispute between the parties and there was no requirement that a party specifically cite section 7 in order that it be considered by the Tribunal. The Executive Chair concluded that in fact it was a significant error for the Tribunal not to consider a statutory provision that gave the Tribunal the discretion to extend the limitation period⁴. I agree.

21In this particular case, as in the reconsideration case cited above, the limitation period issue was at the centre of the dispute. The fact that the appellant did not specifically ask for relief under section 7 does not mean that the Tribunal should not consider that relief in the face of arguments about whether the appeal was out of time.

22I find therefore that the Tribunal in this case did not act outside its jurisdiction in considering section 7 of the LAT Act. I turn now to the interplay between section 7 of the LAT Act and section 56 of the SABS.

Section 7 of the LAT Act and [section 56](https://www.canlii.org/en/on/laws/regu/o-reg-34-10/latest/o-reg-34-10.html) of the [SABS](https://www.canlii.org/en/on/laws/regu/o-reg-34-10/latest/o-reg-34-10.html)

23Section 56 of the SABS states:

An application under subsection 280 (2) of the Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.

24In contrast, section 7 of the LAT Act gives the Tribunal the power to extend a limitation period as follows:

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 […]

25Section 280 of the Insurance Act deals with the resolution of disputes in respect of an insured person’s entitlement to, or amount of, statutory accident benefits. The respondent in its reconsideration submissions refers to section 280.4 of the Insurance Act that states:

The dispute shall be resolved in accordance with the Statutory Accident Benefits Schedule [SABS].

26It submits that by using section 7 of the LAT Act to extend the limitation period, the Tribunal in effect overrode the SABS. It submits that in statutory interpretation, the specific (section 56 of the SABS) prevails over the general (section 7 of the LAT Act).

27In addition, it points to the mandatory language of section 56 of the SABS, specifically that an application shall be commenced within two years, submitting that the legislators did not intend this to be discretionary, and that instead the Tribunal read this as permissive.

28The interplay between section 7 of the LAT Act and section 56 of the SABS was considered in the Executive Chair’s reconsideration decision, A.F. The Executive Chair analyzed the legislators’ intent, noting that section 7 permits an extension of a limitation period “despite any limitation of time fixed by or under any Act”. The Executive Chair concluded that the legislators could have amended this section of the LAT Act, but did not do so, despite amending other sections of it. For the same reasons, I agree with the Executive Chair’s reasoning that the LAT Act permits the Tribunal to extend a limitation period despite the mandatory language of section 56 of the SABS.

29The respondent argues that section 56 of the SABS is specific and should prevail over section 7 of the LAT Act that is general. However, in considering this argument, it is my view that statutory interpretation generally requires a finding that an Act prevails over a regulation.⁵ In this case, therefore, I find that section 7 of the LAT Act prevails over section 56 of the SABS. As a result, I find that the Tribunal did not make an error of law in its conclusion that it could consider and apply section 7 of the LAT Act to extend the limitation period in this case.

30The respondent relies on several cases decided by the courts and the Tribunal that conclude that limitation periods must be construed narrowly to provide certainty and ensure that evidence is maintained and parties do not sleep on their rights.⁶ However, none of these cases considered section 7 of the LAT Act, which I have found applies. Therefore, they do not change my decision.

31In reaching my decision, I have considered the respondent’s submission that applying section 7 of the LAT Act in effect does away with the mandatory limitation period in section 56 of the SABS which it submits is a breach of natural justice and procedural fairness. I disagree with the respondent’s position that this breaches natural justice and procedural fairness because these aspects will still be considered in the Tribunal’s analysis of whether or not to extend a limitation period under section 7 of the LAT Act. It does not do away with a limitation period – it merely gives the Tribunal discretion to extend a limitation period in certain circumstances.

32I turn now to a consideration of the Tribunal’s application of section 7 and the four factors that one must consider in applying that section.

Tribunal’s application of the four factors in section 7 of the LAT Act

33The Tribunal correctly set out the four factors as follows:

(i) The existence of a bona fide intention to appeal within the appeal period;

(ii) The length of the delay;

(iii) Prejudice to either party; and

(iv) The merits of the appeal.⁷

34The respondent asserts that the appellant did not give any reasons why he filed his appeal late, nor why it ought to be permitted to be filed late. It also argues that the Tribunal erred in law by considering section 7 of the LAT Act without giving the respondent an opportunity to make submissions on the four factors, which it asserts was a denial of natural justice and procedural fairness.

35As I said above, in this particular case the limitation period issue was at the centre of the dispute. Given that finding, I reject the respondent’s argument that it did not have the opportunity to make submissions on the four factors that are essential to a determination of that issue. In addition, even if I am wrong, both parties make arguments on the four factors in their reconsideration submissions, and I have considered those.

36In its decision, the Tribunal considered the four factors at paragraph 28. In this particular case, the applicant filed his appeal six days late, and the Tribunal found that he had a bona fide intention to appeal but was mistaken about how long he had to do so. The Tribunal also considered the prejudice to both parties, and while the respondent asserts that the Tribunal wrongly put the onus on the respondent to show prejudice to it, the Tribunal’s decision does not reflect that position. It is clear from the decision that the Tribunal considered the prejudice to both parties and concluded that in light of a six day delay, the prejudice to the applicant of losing the potential for entitlement to two years of income replacement benefits outweighed the prejudice to the respondent.

37Finally, I find that the Tribunal considered whether or not the application had merit and concluded that it did. The respondent argues in its reconsideration submissions that the applicant did not submit any medical, income or employment records, an argument that the Tribunal addressed in its decision. The Tribunal found in its decision that the respondent’s concerns could be alleviated by case management and also would ultimately be part of a decision made by the Tribunal.

38I find no error of fact or law with respect to the Tribunal’s application of the four factors.

ORDER

39The respondent’s request for reconsideration is denied.

Dawn J. Kershaw Vice-Chair Safety, Licencing Appeals and Standards Tribunals Ontario

Footnotes

1. 12016 ONCA 759
2. 2See also, e.g.: Kirkham v. State Farm Mutual Automobile Insurance Co., 1998 CarswellOnt 2811; Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 S.C.R. 129; Sietzma v. Economical Mutual Insurance Company, 2014 ONCA 111
3. 3December 16-002336 and 16-002606
4. 4ibid, para. 26
5. 5Sullivan on the Construction of Statutes, Fifth Edition, p. 341
6. 6See, e.g. Straus v. Aviva, 2015 ONSC 4589; A.P. v. Unifund Assurance Company, 17-001639/AABS, September 11, 2017; Katanic v. State Farm Mutual Automobile Insurance Company, 2013 ONSC 5103
7. 7See: Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492