A.F. v. North Blenheim Mutual Insurance Company, 2019 CanLII 58193

RECONSIDERATION DECISION

Before: Dawn J. Kershaw, Vice-Chair

Date: May 10, 2019

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 Applicant: Miguel Maruszki, Counsel

For the Respondent: Richard J. T. Shaheen, Counsel

OVERVIEW

1This reconsideration decision deals with two decisions in two separate cases. The applications arose out of the same March 24, 2014 motor vehicle accident in relation to which the applicants, A.F. and N.L., filed claims for accident benefits. The respondent denied N.L.’s and A.F.’s various claims on April 30, June 11 & 17 and August 7, 2014.

2On March 24, 2016, A.F. and N.L. filed Applications for Mediation with the Financial Services Commission of Ontario (“FSCO”) disputing the respondent’s denials of their claims. On May 19, 2016 the Applications for Mediation were dismissed because the applicants did not confirm the mediation dates with FSCO. A.F. and N.L. then each filed an Application with this Tribunal on August 26 and September 9, 2016, respectively.

3By way of preliminary hearing, the Tribunal found in the decisions issued on March 13, 2017 that the applicants’ claims were statute-barred because they were filed after the two year limitation period for filing an application with the Tribunal. The applicants each filed a reconsideration request and re-hearings were ordered so that the Tribunal could consider section 7 of the Licence Appeal Tribunal Act¹, pursuant to which the Tribunal can extend the time for filing an application.

4On re-hearing, and in considering section 7 of the LAT Act, the Tribunal again found in two separate decisions, dated August 21, 2018 in 16-002336/AABS² and August 28, 2018 in 16-002606/AABS³, that the applicants’ claims were statute-barred.

5On September 10, 2018, the applicants filed requests for reconsideration. This is the reconsideration decision with respect to both re-hearing decisions.

6Pursuant 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.

7The applicants also have appealed the decisions to the Divisional Court, and they were scheduled to be heard on April 9, 2018, but have been adjourned without a return date pending the outcome of these reconsideration requests.

8As explained below, I grant the applicants’ requests for a reconsideration.

THE LAW

Extension of Time Limits

9Section 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.

Reconsiderations

10There are limited grounds upon which a person can request a reconsideration. In this case, the applicants assert 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 applicants assert that they therefore are 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”).

11Rule 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.

12The applicants ask that the Tribunal:

(i) find that the applications were filed within the limitation period; or

(ii) extend the time for the applicants to file their applications with the Tribunal, pursuant to section 7 of the LAT Act.

APPLICANTS’ GROUNDS FOR RECONSIDERATION

13All parties agree that in deciding whether the grant an extension of time pursuant to section 7 of the LAT Act, the following four factors are to be considered:

(1) That there was a bona fide intention to appeal within the time limit;

(2) The length of the delay;

(3) The prejudice to the other party; and

(4) The merits of the appeal.

14The applicants submit that the Tribunal erred in its application of this four-part test. I first have addressed each of the four factors. I have then considered the applicants’ additional grounds for their reconsideration requests.

Significant Error of Law – Bona Fide Intention to Appeal

15The applicants submit that they had a bona fide intention to appeal the denials of their claims, and that the Tribunal made a significant error of law in applying the law in this regard.

16They submit that the Tribunal limited its consideration of an explanation of one’s bona fide intention to appeal to illness, accident or personal crisis, and that this is not an exhaustive list of reasonable explanations for failing to appeal within the time limit⁴.

17They further submit that the Tribunal wrongly concluded that the applicants provided no evidence as to why they did not appeal in time and say they provided that evidence in their submissions and in an affidavit⁵. In addition, the applicants demonstrated their bona fide intention to appeal the decisions by continuing to engage with FSCO and with the Tribunal, and by filing.

18The respondent on the other hand submits that the Tribunal in fact considered the explanation in the affidavit⁶, but found it was not a reasonable or credible explanation for the failure to file the appeal in time. It submits that the applicants rely on an unsupported allegation that a LAT employee told them in a telephone call that the 90 day extension after a failed mediation would extend the time for filing the application to the Tribunal, which the respondent disputes, but even if that was the case, the applicants still filed their applications after that 90 day period.

19The respondent also argues that the alleged telephone call does not explain why the applicants waited for almost two years before filing a mediation application with FSCO; failed to confirm the mediation date with FSCO, resulting in their files being closed; failed to seek to re-open the FSCO mediation files; and why the applicants waited for months to file their applications with this Tribunal after the FSCO mediation file was closed.

20My task on reconsideration is to determine whether there the Tribunal made a significant error of law, and I find it did.

21I do not find that the Tribunal wrongly limited its consideration of what constitutes a bona fide intention to appeal by referring to illness, accident or personal crisis as it appears the Tribunal referred to these as examples, and not as an exhaustive list.

22However, I find that although the Tribunal considered the affidavit evidence in paragraph 27 of its decision and concluded that the applicants did not provide any reasonable explanation for their failure to file their applications in time, the Tribunal failed to consider that the applicants continuously demonstrated their intention to appeal. The fact that the applicant waited almost two years before filing a mediation application with FSCO is not a factor the Tribunal should have considered as it was within the allowable statutory timeline. In addition, the applicants followed up with the Tribunal and received assurances that their appeals were within time.

23Added to that is the fact that the applicant not only filed a treatment plan with the respondent on June 29, 2016, for further medical benefits, but also submitted an OCF-19 on August 25, 2016 to determine if the applicant sustained a catastrophic impairment. These factors are indicative of an ongoing bona fide intention to appeal.

24I will now consider the second factor in the reconsideration request – the length of the delay.

Significant Error of Law – Length of Delay

25The applicants submit that the Tribunal made a significant error in law by failing to consider the length of the delay from the expiration of the presumptive limitation period to the time the applications were served and filed.

26The applicants submit that the Tribunal stated there was a delay in filing the applications of between 1 and 5 months and did not explain how it reached this conclusion, when in their view the delay was only 12 days after the presumptive limitation period.

27The respondent submits that the Tribunal in fact considered the limitation period in various paragraphs of its decision⁷.

28The applicants also submit that in considering any delay, the Tribunal failed to consider whether the delay was costing the tax payers money⁸. The respondent submits the Tribunal is not required to consider this.

29First, with respect to the Tribunal’s failure to consider whether the delay cost the tax payers money, I find no error in the Tribunal’s failure to consider this. The decision to which the applicants referred was a vehicle impoundment decision in which the cost of impoundment may accrue to the tax payers in certain circumstances. This consideration has no application in this case. As such, I find there was no error of law that would change the Tribunal’s decision.

30Furthermore, I find that although the Tribunal considered the length of the delay, its conclusion that if the applications were permitted to proceed, the hearing on the merits would take place at least four years after the respondent’s denials of the claims was an error in law, which may well have changed the Tribunal’s decision.

31The applicant appealed the denials within the two year legislated time frame. It is irrelevant at what point during that time frame the applicant did so. The applicant should not be held to account for two years in any assessment of delay because the applicant has the right to appeal during that time. In addition, it is also an error in law in this particular case, in my view, to include in the assessment of any delay the long backlog that existed at the time at FSCO.

32I turn now to a consideration of the Tribunal’s finding with respect to the third factor - prejudice.

Significant Error of Law and Fact - Prejudice

33The applicants submit there was no prejudice to the respondent, and the Tribunal should have considered the principle in Elkhouli v. Senathirajah⁹ that an assertion of prejudice must be accompanied by actual evidence of same. The applicants submit that the only potential issue of faded memories of assessors is insufficient to ground a finding of prejudice¹⁰.

34The respondent counters that the Elkhouli and Sirniak cases were not accident benefits cases and did not consider section 7 of the LAT Act. The respondent submits that the Tribunal instead, and correctly, followed a similar approach to the one taken in 17-007052 v. Unica Insurance Inc.¹¹, finding that the “four factors¹² act as a guideline but are not elements that must be met before an extension can be granted.

35I find no error of law or of fact in the Tribunal’s failing to consider the Elkhouli and Sirniak cases. The Tribunal followed the generally accepted approach of considering the four factors in deciding whether to grant an extension of time¹³. In fact the applicants did not take issue with the Tribunal applying the four part test and their submissions in their reconsideration requests addressed all four factors. I find no error of law or fact because the Tribunal did not rely on the Elkhouli and Sirniak cases.

36I find however that the Tribunal made an error in respect of its finding of potential prejudice to the respondent. The Tribunal stated that a hearing on the merits would take place at least four years from the denial dates. While this statement is factually correct, the Tribunal made an erroneous conclusion in attributing this timeline in its assessment of delay, as discussed previously, and in the way it then applied this conclusion to its assessment of prejudice. The consideration of delay should be a consideration of how much time elapsed between the expiry of the allowable time to appeal and the time the appeal was filed. As indicated, the applicants filed their applications to FSCO within the allowable time, and there was a substantial delay in FSCO’s mediation process, which should not be attributed to the applicants. I find that no new prejudice to the respondent arose from the applicant’s application to LAT and the limited extension of time between the time FSCO “closed” their files, particularly since no clear instructions were being given to the applicants for how and when to proceed after FSCO “closed” their files.

37In summary, I conclude that the Tribunal made an error in respect of its finding with respect to prejudice to the respondent.

38I turn now to the fourth of the four factors to consider – the merits.

Significant Error of Fact – Merits

39The applicants submit that the Tribunal made a significant error of fact by concluding that it could not assess the merits of the applicants’ cases because they provided information about the injuries and their effect, which the respondent did not deny.

40The respondent on the other hand submits that the existence of injuries and impairments does not automatically entitle the applicants to medical and rehabilitation benefits, and the Tribunal was correct when it stated it did not have the necessary facts before it to determine the merits.

41I find no error of fact in the Tribunal’s statement that it did not have the necessary facts before it to consider the merits. Even if the Tribunal had more information about the merits, this is only one of the four factors that act as a guideline. I find no significant error that would mean the Tribunal would have made a different decision.

42I turn now to the additional grounds upon which the applicants relied in their requests for reconsideration.

Significant Error of Law – Application of Miller and Development Company v. Alden[^14]

43The applicants submit that the Tribunal made a significant error of law by relying on the Miller decision because it relies on dated legislation that is no longer of any force or effect.

44They also submit that the Tribunal wrongly stated that Miller stood for the proposition that the first two factors of the test [set out in paragraph 12, above] may be sufficient to justify dismissing a request to extend a limitation period if the other factors do not carry as much weight. They submit that the Tribunal should have considered all four factors.

45The respondent argues that Miller remains good law and cites the four factors that were imported into the test for section 7 of the LAT Act. It submits that the Tribunal did not err in its statement that the first two factors may be sufficient to justify dismissing a request to extend a limitation period.

46I find that the Tribunal did not make a significant error of law such that the Tribunal would have reached a different decision. First, the mere fact that the Miller case is from 1979 does not make it bad law, and the applicants did not provide any case law to substantiate their position that it relies on dated legislation, or that even if it does, that the principles enunciated in Miller are no longer good law.

47Second, the applicants’ argument that the Tribunal wrongly stated that the first two factors of the test may be sufficient to justify dismissing a request for an extension of time can only succeed on a reconsideration if I am able to find that the Tribunal erred and likely would have reached a different conclusion if it had not erred. I cannot do so because in fact the Tribunal considered all four factors. As such, this reason for the reconsideration request also fails.

48I turn now to the applicants’ assertion that the Tribunal made a significant error of fact and breached natural justice and procedural fairness by not explaining how it reached its conclusion that the applicants did not take any reasonable steps to file their LAT applications.

Significant Error of Fact and Breach of Natural Justice/Procedural Fairness

49The applicants argue that the Tribunal made a significant error of fact by not explaining its finding that the applicants took no reasonable steps to file their LAT applications. The applicants’ submissions recount again the steps they took, including calling the Tribunal on July 6 and 25 and September 20, 2016, which they rely on as reasonable steps. The applicants also included the affidavit in which the affiant advised that in the July 25, 2016 telephone call, someone from LAT told her that because of the transition from FSCO to LAT the 90 day rule to apply for arbitration after a failed mediation did not apply.

50The respondent argues that the applicants mischaracterized their phone call to the Tribunal as constituting “numerous steps” to file their applications. It argues that to allow the applicants to rely on an undocumented telephone call with an anonymous LAT employee to circumvent a statutory time period would be a breach of the respondent’s entitlement to natural justice and procedural fairness.

51The respondent also submits that the Tribunal provided reasons at paragraph 18 of its decision why it found that the applicants’ explanation not credible and reasonable.

52When the Tribunal considered the available evidence about the steps the applicants took to file their appeals, and explained its reasoning at paragraph 18 of its decision, it relied on there being no written confirmation from the Tribunal about the telephone call in which they allege that the Tribunal told them the two year limitation period did not apply to issues claimed in the Application for Mediation (to FSCO), dated March 24, 2016. This in my view is an error, given that it is likely no written confirmation could in fact exist.

53When FSCO informed the applicants on May 19, 2016 it was closing their files, they did not have clear instructions on what to do next. They were told the 90 day extension rule would not apply, and they filed their applications to this Tribunal on August 26 and September 9, 2016, respectively, with relatively minimal delay given the circumstances at the time. In addition, it seems that FSCO closed their files before the mediation date even took place.

54Overall, I conclude there were significant errors of fact or law in the Tribunal’s decisions that mean that the Tribunal likely would have reached different decisions with respect to these files.

ORDER

55For the reasons set out above, I grant the applicants’ requests for reconsideration and extend the time for filing their appeals.

56The Tribunal shall send the parties a Notice of Case Conference with respect to these appeals.

Dawn J. Kershaw

Vice Chair

Tribunals Ontario – Safety, Licensing Appeals and Standards Division

Footnotes

1. 1S.O. 1999, c. 12, Sched. G (“LAT Act”)
2. 2A.F. v. North Blenheim Mutual Insurance Company, 16-002336/AABS
3. 3N.L. v. North Blenheim Mutual Insurance Company, 16-002636/AABS
4. 4Manuel v. Registrar, Motor Vehicles Dealers Act, 2012 ONSC 1492.
5. 5Paragraph 38 of the Applicants’ submissions & Affidavit of Alex Bratseiko (“the affidavit”), paragraphs 6 to 15.
6. 6Paragraphs 18 & 29 of the affidavit
7. 7Paragraphs 16, 17, 19, 20, 26, 27 & 30.
8. 8Appellant v. Registrar of Motor Vehicles, 9155/MVIA.
9. 92014 ONSC 6140 (“Elkhouli”)
10. 10Relying on: Sirniak v. Dhaliwal, 2008 CanLII 38365 (ONSC) (“Sirniak”) at paras. 64 & 113.
11. 11(2018), 2018 CarswellOnt (Ont. LAT), at para. 20 (“17-007052”)
12. 12Namely: the existence of a bona fide intention to appeal within the limitation period; the length of the delay and the explanation provided for the delay; prejudice to the other party; and the merits of the appeal.
13. 13See, e.g.: A.F. v. North Blenheim Mutual Insurance Company and N.L. v. North Blenheim Mutual Insurance Company, December 13, 2017 Reconsideration Decision at para. 28-30; Manuel, above at foonote 4
14. 14(1979), 199 CarswellOnt 2578 (Ont. C.A.) (“Miller”)