Tribunal File No: 18-002989/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:
L. R.
Applicant
and
RSA Insurance Company of Canada
Respondent
DECISION
PANEL:
Nidhi Punyarthi, Adjudicator
APPEARANCES:
For the Applicant:
Sylvia Guirguis, Counsel
For the Respondent:
Lora Castellucci, Counsel
HEARD:
In Writing on: November 16, 2018 (Preliminary Issue Hearing)
OVERVIEW
1The applicant was involved in an accident on March 13, 2014. He claimed certain benefits from the respondent under the Statutory Accident Benefits Schedule – Effective September 2010, O.Reg. 34/10 (“Schedule”).
2On March 25, 2015, the respondent denied the applicant’s claim for income replacement benefits under the Schedule. On May 1, 2015, the respondent denied the applicant’s claim for attendant care benefits under the Schedule.
3On April 9, 2018, the applicant applied to the Licence Appeal Tribunal (“Tribunal”) to dispute these denials of benefits.
PRELIMINARY ISSUES
4The parties agreed that the Tribunal should first decide the following preliminary issues:
a. Is the applicant barred from appealing the respondent’s denial of his claim for income replacement benefits under s. 56 of the Schedule because the appeal was filed more than two years after the insurer denied payment of it?
b. Is the applicant barred from appealing the respondent’s denial of his claim for attendant care benefits under s. 56 of the Schedule because the appeal was filed more than two years after the insurer denied payment of it?
RESULT
5More than two years have passed between the dates of the denied benefits and the date this application was filed. Nonetheless, the applicant’s time to apply to the Tribunal to dispute these denials is extended to April 9, 2018, the date he filed his application. I have granted the applicant this extension of time pursuant to my authority under s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c.12, Sch. G (“LAT Act”).
ANALYSIS
6On June 15, 2016, the applicant was found to lack capacity to instruct counsel and to require the assistance of a litigation guardian for legal matters. A licensed capacity assessor in Ontario made this determination.
7The parties submitted that I can consider the Limitations Act, 2002, S.O. 2002, c.24, Sch. B (“Limitations Act”) and, in particular, the provisions involving the suspension of limitation periods in the cases of parties having a mental incapacity.
8To that end, the parties provided me with submissions during the written hearing as well as additional submissions that followed my interim order on this question. However, I am still not persuaded that the Tribunal has jurisdiction to apply the Limitations Act. That said, I am prepared to consider the applicant’s mental status in the context of s. 7 of the LAT Act.
The Tribunal cannot consider the Limitations Act
9Section 2(1) of the Limitations Act provides that it applies to “claims pursued in court proceedings”. This proceeding is not a court proceeding. Thus, the Limitations Act is inapplicable.
10In addition, I was not persuaded by a number of the parties’ arguments as to why I should consider and apply the Limitations Act. I will summarize my evaluations of these arguments as follows:
a. I was pointed to s. 19(1) and (5) of the Limitations Act as authority for the Tribunal to follow the relevant provisions of the Limitations Act concerning the suspension of limitation periods in the case of mental incapacity. I read s. 19(1) as referring to cases in which the relevant limitation period is prescribed by the Limitations Act and by another statute at the same time (such as a court action related to a statutory accident benefits claim). In the case before me, I am not inquiring into the delay of time it took to commence a court proceeding related to a dispute that may fall under the statutory accident benefits regime. Therefore, I do not find s. 19(1) and (5) of the Limitations Act to be relevant to my analysis.
b. While I am not bound by previous decisions of this Tribunal or by FSCO, I observe that the case law of this Tribunal is evolving to confirm that the Limitations Act does not apply to proceedings before it. See, for example, the decisions of this Tribunal in S.T. v. Economical Mutual Insurance Company, 2017 CanLII 595507 (ON LAT) at para. 57; A.C. v. Economical Mutual Insurance Company, 2018 CanLII 112125 (ON LAT) at paras. 14 and 15; and S.S. v. Economical Mutual Insurance Company, 2018 CanLII 83510 (ON LAT) at paras. 33-37.
c. Adjudicator Watt recently stated in J.V. v. Economical Insurance Company, 2019 CanLII 22190 (ON LAT) at para. 14 that the Limitations Act applies only to courts, and that tribunals are not courts. The respondent submitted that this decision was the subject of a request for reconsideration. The request for reconsideration has since been dismissed by Associate Chair Batty: see 2019 CanLII 43883 (ON LAT).
d. The parties were asked to consider paragraphs 62 and 63 of Letestu v. Ritlyn Investments, 2016 ONSC 6540. The respondent submitted that this case was overturned on appeal. The Court of Appeal, however, did not disturb the observations made by the Superior Court at the specific paragraphs identified. The Court of Appeal confirmed that the Limitations Act applied to court actions.
e. The decision of the Divisional Court in Tomec v. Economical Mutual Insurance Company, 2018 ONSC 5664, raised by the respondent, does not address the suspension of limitation periods, and is therefore not relevant to the particular analysis that I have to undertake in this case.
11The parties submitted that the Tribunal should take notice of the common law principle of affording protections to mentally incapacitated persons in cases where there is evidence that they are unable to determine and/or prosecute their claims due to a legal disability. Adjudicator Hines took these same considerations into account when she decided 17-003732 v. Royal and Sun Alliance, 2018 CanLII 39449 (ON LAT).
12It should be clarified, however, that following the provisions of the Limitations Act to suspend limitation periods to the end of accommodating a legal disability is not the correct approach in light of s. 2(1) of the Limitations Act. In fact, considering whether a limitation period should be suspended as provided in the Limitations Act is not necessary, given that the Tribunal is empowered under s. 7 of the LAT Act to analyze whether an applicant’s time to apply to the Tribunal should be extended in appropriate circumstances, such as a legal disability.
The applicant is entitled to an extension of time under [s.7](https://www.canlii.org/en/on/laws/stat/so-1999-c-12-sch-g/latest/so-1999-c-12-sch-g.html#sec7_smooth) of the [LAT Act](https://www.canlii.org/en/on/laws/stat/so-1999-c-12-sch-g/latest/so-1999-c-12-sch-g.html)
13Pursuant to s. 7 of the LAT Act, the Tribunal has the discretion to extend the time period set by any statute if it is satisfied that there are reasonable grounds for the extension. Section 7 permits me to inquire into the context of the particular case and evaluate the grounds that have been proposed to request an extension of time.
14In the reconsideration decision of A.F. v. North Blenheim Mutual Insurance Company, 2017 CanLII 87546 (ON LAT) (“Blenheim”), the Tribunal listed four factors that are generally weighed in order to determine whether the justice of the case requires an extension of time. These four factors, taken from the Divisional Court’s decision in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (Ont. S.C.), are as follows:
a. a bona fide intention to appeal within the time period;
b. the length of the delay;
c. the prejudice to the other party; and
d. the merits of the appeal.1
15The four factors are not strict elements that must all be met. Rather, they serve as a guide to assist in determining what is just and appropriate in each particular case.
The length of the delay
16One of the factors that has been emphasized in the submissions before me is the length of the delay. The applicant was assessed to be mentally incapable on June 15, 2016, which was just over a year after the benefits at issue were denied. He did not file his application with the Tribunal (which was dated March 9, 2018) until April 9, 2018.
17In the interim, on October 5, 2016, the applicant’s wife was appointed by court order as his litigation guardian in a specific court action. As well, on January 13, 2017, she filed a form to act as litigation guardian in the applicant’s FSCO proceeding. On March 9, 2018, the applicant’s wife swore an affidavit consenting to act as his litigation guardian in the proceeding before the Tribunal and attached a copy of the applicant’s capacity assessment. She filed this affidavit with the Tribunal, along with a copy of the application, following the process used by the Social Justices Tribunals of Ontario with regards to litigation guardians for parties with mental capacity issues.
18According to the respondent, the delay in filing this application was unduly long and unexplained, and the present case is not a situation where both parties were actively engaged in the dispute or where the delay can be considered to be outside of the applicant’s control.
19I disagree. The timeline of events put in evidence, in my view, provides an explanation for the delay. Between June 15, 2016 and March 9, 2018, it can be reasonably inferred that the applicant, through his litigation guardian, was preoccupied with the court action and then with the FSCO proceeding (which, according to undisputed submissions before me, addressed benefits other than the ones in the Tribunal application).
20It is reasonable to infer that an individual in the applicant’s situation is dependent on his litigation guardian to be apprised of, and to take action on, various legal matters that concern him. The litigation guardian also has to ensure compliance with the rules of procedure for each legal matter and completion of any procedural steps for the prosecution of each matter.
21As indicated in paragraph 6 of the applicant’s sur-reply submissions, the court order of October 5, 2016 did not enable the applicant’s wife to represent him in all other legal matters: it was limited to that specific court action. The applicant’s wife had to follow a different and separate procedure for every other legal matter to ensure that it was prosecuted through the appropriate dispute resolution forum. Following the requirements of each legal process and going through different legal proceedings takes time.
22There was also about a month of delay between the date the application for the Tribunal was prepared and the date that it was filed. It is reasonable for me to infer that this additional one-month delay took place due to administrative reasons.
23I find, for the above-noted reasons, that the time period from June 15, 2016 to April 9, 2018 can be reasonably explained by the various legal proceedings that had commenced and by the requirements that they imposed on the applicant’s litigation guardian.
Bona fide intention to apply within the time period
24In the case before me, as stated above, the applicant was assessed to be mentally incapable in June 2016, which was approximately one year following the denials of the benefits at issue. Thereafter, in a few months, in October 2016, the applicant’s litigation guardian was appointed by the court to represent his interests in a specific court action. A few months later, in January 2017, the same litigation guardian also filed forms to commence a FSCO proceeding. Just over a year later in March 2018, the same litigation guardian filled the forms to commence the proceeding before the Tribunal.
25Given that these litigation steps that were taken during the time period identified above, it is reasonable for me to infer that the applicant had the bona fide intention to apply to dispute his benefits within the prescribed time period. I infer that the applicant’s incapacity and dependence on his litigation guardian prevented him from applying in a more timely manner.
No prejudice
26I am not persuaded by the respondent’s submission at paragraph 14 of its reply submissions that it is prejudiced if the applicant were allowed to proceed with his dispute on the benefits at issue before the Tribunal. The respondent has access to the documentary record that was created to assess and deny the benefits at issue and to all subsequent relevant documents. Relevant witnesses can testify in reference to the documents to assist them with their memories as needed. Therefore, I agree with the applicant that there is no prejudice to the respondent if the application were permitted to proceed to a hearing of the substantive issues in dispute.
Merits of the application
27I am not persuaded by the respondent’s submission at paragraph 15 of its reply submission that the application has no merit. Based on the evidence before me, the benefits at issue were denied on the basis of assessments by the respondent. The applicant disputes the fact that the benefits were denied and the substance of the assessments that the respondent relies on. Therefore, the application appears to have some merit and should proceed to a hearing for a determination.
28Based on my examination of the Blenheim considerations, I find that there are reasonable grounds to grant the applicant an extension of time under s. 7 of the LAT Act to the date he filed his application with the Tribunal.
CONCLUSION
29Pursuant to s. 7 of the LAT Act, the applicant’s time to apply to the Tribunal is extended to April 9, 2018, which was the date his application was filed with the Tribunal.
30The applicant is permitted to schedule a further case conference with the Tribunal to engage in a case conference process with respect to the substantive issues in dispute in his application.
31All other provisions of previous orders of this Tribunal remain in full force and effect.
Released date: July 12. 2019
Nidhi Punyarthi
Adjudicator