V.M.L. v. Aviva General Insurance Company, 2020 CanLII 12745

RECONSIDERATION DECISION

Before:

Sandeep Johal, Adjudicator

Date:

February 12, 2020

File:

18-001713/AABS

Case Name:

V.M.L. v. Aviva General Insurance Company

Written Submissions by:

For the Applicant:

Nancy Young, Counsel

For the Respondent:

Leanne W. Zabudsky, Counsel

OVERVIEW

1This Request for Reconsideration was filed by the applicant. It arises out of a decision in which the Tribunal found that the applicant was [statute]-barred from proceeding with her appeal of the respondent’s refusal to pay an income replacement benefit (“IRB”) and the Tribunal’s decision not to extend the limitation period by way of section 7 of the Licence Appeal Tribunal Act¹(“LAT Act”).

2My decision dated July 2, 2019 granted the applicant’s reconsideration request in part. The decision ordered the parties to provide written submissions on the issue of section 7 of the LAT Act to be heard in-writing before me.

3The applicant provided submissions on July 22, 2019 which included an affidavit of Michelle Arzaga, a lawyer in the applicant’s counsel’s office.

4On July 30, 2019, the respondent filed a Notice of Motion seeking to exclude the affidavit evidence as it was past the production deadline for the preliminary issue hearing, pursuant to the case conference Order of the Tribunal dated July 19, 2018.

5The respondent’s motion was heard on September 24, 2019. The Tribunal ordered that the motion to exclude the affidavit evidence be heard before me, in-writing, as part of the reconsideration on the issue of section 7 of the LAT Act, and allowed the parties to submit additional reply submissions.

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.

RESULT

7The applicant is permitted to proceed with her application to dispute the denial of her Income Replacement Benefit (“IRB”) based on section 7 of the LAT Act.

ANALYSIS

Motion to exclude the affidavit evidence

8The applicant submits that the Tribunal’s request for section 7 submissions is akin to the Tribunal determining that there was an incomplete record and seeking further submissions to be able to come to a just and appropriate result. The applicant argues that the affidavit evidence should be allowed on that basis.

9The applicant further submits additional evidence must have been contemplated by the Tribunal as I had indicated in paragraph 28 of the reconsideration decision that the length of submissions was limited to 5 pages, exclusive of evidence and case law. According to the applicant, where there is no evidence of actual prejudice due to the late delivery of material, the appropriate remedy is not exclusion of the material, but an extension of time.²

10The respondent submits that the preliminary issue hearing on whether the IRB is statute barred was already scheduled and productions were due on July 18, 2019 as per the case conference Order. Furthermore, the affidavit is considered new evidence, but that evidence was available and in the applicant’s possession at the time of the original hearing. The respondent argues that the applicant is now trying to re-argue her case based on information that they had the opportunity to, but failed to, adduce the first time around which cannot be done.³

11After a review of the submissions of the parties, I find that the affidavit evidence is not required. The submissions were sufficient for me to consider the applicability of section 7 of the LAT Act and the affidavit therefore does not factor into my decision on the applicant’s request for reconsideration.

Section 7 of the LAT Act

12In determining whether to grant an extension of time under s. 7 of the LAT Act, the Tribunal generally weighs the following four factors in order to determine whether the justice of the case requires that the extension be granted:

1. The existence of a bona fide intention to appeal within the appeal period;

2. The length of the delay;

3. Prejudice to the other party; and,

4. The merits of the appeal.

13This test was approved by the Divisional Court in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492. Notably, it is also the same test that courts use to determine whether to grant an extension of time to file an appeal: see Howard v. Martin, 2014 ONCA 309, at para. 26.⁴

14The four 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.

15The respondent submits that section 7 of the LAT Act does not apply to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The respondent relies on the unreported decision dated September 5, 2019 in 18-001196/AABS v. Certas Home and Auto Insurance Company. (“18-001196 Decision”) for its submission that it is not within the Tribunal’s jurisdiction to extend the limitation period to dispute entitlement to automobile accident benefits under section 7 of the LAT Act.

16The 18-001196 Decision is in direct contrast to the reconsideration decision of the Executive Chair, Linda P. Lamoureux in A.F. v North Blenheim Mutual Insurance Company ⁵ who found that section 7 of the LAT Act does apply to the Tribunal for an extension of the limitation period to dispute entitlement to automobile accident benefits. The Executive Chair analyzed the legislator’s 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.⁶

17The respondent did not provide any submissions with respect to section 7 of the LAT Act or the North Blenheim decision.

18In the 18-001196 Decision, the Adjudicator’s finding was that section 7 of the LAT Act does not apply to matters under the Schedule. According to that decision, the Adjudicator’s opinion was that the Executive Chair in North Blenheim was not asked to consider the definition of an “Act” and “regulation” and whether the words “under any act” in section 7 does not mean a regulation.

19However, I am not bound by another member’s decision and, in any event, I prefer the opinion of the Executive Chair and the reasoning in North Blenheim that the legislature is presumed to know the law and not make mistakes (Sullivan on the Construction of Statutes, 5th ed., p. 245)⁷. Section 7 of the LAT Act was not repealed or amended when the Tribunal assumed jurisdiction for matters under the Schedule as of April 1, 2016 and, as a result, I agree with the Executive Chair that section 7 of the LAT Act does apply.

Did the applicant have a bona fide intention to appeal within the appeal period?

20The applicant submits it was her intention to file an appeal to dispute the denial of the IRB. However, the delay in filing her appeal was not due to any fault of the applicant. An employee at the firm failed to follow her instructions and did not advance the appeal when instructed to do so.

21There is no direct evidence from the applicant to this point other than her submissions that it was an error of the firm and not as a result of any fault that can be attributed to the applicant. I find this to be a plausible explanation to show an intent to appeal within the appeal period and that this factor is in support of the applicant’s position. In any event, as mentioned above, all four factors do not have to be satisfied, as long as the justice of the case requires granting the extension.

Length of the Delay

22The length of the delay is 13 business days. A delay of this kind would not, in my opinion, be considered a significant delay by any means.

Prejudice to the respondent

23The applicant submits there is no prejudice to the respondent in the expiration of a few days.

24The respondent has not provided any submissions on any prejudice it may have suffered as a result of the 13 business day delay in disputing the denial. I do not consider a delay of 13 business days to prejudice the respondent’s ability to defend against the applicant’s claim. As a result, I find that this factor weighs in favour of the applicant.

Merits of the appeal

25The fourth factor does not require an in-depth analysis of the merits of the appeal and I make no finding on the applicant’s entitlement to IRBs as claimed. However, based on the submissions that the applicant has been approved to receive CPP Disability Benefits, there may be some merit in her appeal that warrants the applicant having an opportunity to dispute the denial.

CONCLUSION

26As stated above, all four factors do not need to be satisfied as long as the justice of the case requires granting of the extension of the limitation period under s. 7 of the LAT Act. I find that there is no prejudice to the respondent in a 13 business day delay in filing the appeal application. As a result of the combination of all four factors, I find that the justice of the case warrants an extension of the limitation period to allow the applicant the opportunity to dispute the respondent’s denial of her IRB claim.

27As a result of this decision, either party may contact the Tribunal in order to schedule a case conference to discuss the substantive issues in dispute in this application.

Footnotes

1. 1S.O. 1999, c. 12, Sched. G.
2. 2E.L. v. Certas Direct Insurance Company 2019 CanLII 72195 (ON LAT) at para. 12.
3. 3Reconsideration Decision of Aviva Insurance Canada v. G.P. 2018 CanLII 81914 (ON LAT)
4. 4A.F. v. North Blenheim Mutual Insurance Company, 2017 CanLII 87546 (ON LAT)
5. 52017 CanLII 87546 (ON LAT) “North Blenheim”
6. 6A.O. v Unifund Assurance Company 2019 CanLII 58501 (ON LAT) at para. 12 citing 17-007103 v. Unifund Assurance Company, 2019 CanLII 40291 (ON LAT) at para. 28.
7. 7North Blenheim at paragraph 19.