R.M. v. Certas Home and Auto Insurance Company, 2020 CanLII 19575

Citation: R.M. v. Certas Home and Auto Insurance Company, 2020 CanLII 19575

Tribunal File Number: 18-007521/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:

R.M.

Applicant

and

Certas Home and Auto Insurance Company

Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR:

Sandeep Johal

APPEARANCES:

For the Applicant:

Kevan Wylie, Counsel

For the Respondent:

Devon McIntyre, Counsel

Heard in writing on:

November 4, 2019

OVERVIEW

1The applicant was injured in an automobile accident on August 13, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant applied for a non earner benefit (“NEB”), physiotherapy treatment and payment for cost of examinations for catastrophic assessments that were denied by the respondent. The applicant disagreed with these denials and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3The respondent raised a preliminary limitation issue at the case conference and as a result this written preliminary issue hearing was scheduled.

PRELIMINARY ISSUE

4The preliminary issue is whether the applicant is statute barred from bringing this application to the Tribunal to dispute the NEB and physiotherapy denials as they were not disputed within the two year limitation period as per section 56 of the Schedule.

RESULT

5The applicant’s claim for a NEB and the physiotherapy treatment is statute-barred in accordance with section 56 of the Schedule.

ANALYSIS

6Section 56 of the Schedule sets out that the application to dispute a denial of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.

7The applicant does not dispute the denial date for the NEB being November 10, 2015 and for the physiotherapy treatment plan being denied on December 14, 2015. Nor does the applicant submit that the denials were unclear or ambiguous.

8The applicant’s application to the Tribunal was filed on August 13, 2018, which is clearly outside the two-year limitation period contemplated in s. 56 of the Schedule.

9The applicant submits the Tribunal has jurisdiction to extend or vary the limitation period under s. 7 of the Licence Appeal Tribunal Act, 1999. (“LAT Act”).² Furthermore, the applicant relies upon the reconsideration decision of the Executive Chair which sets out the four-part test to determine whether the justice of the case requires that the extension be granted.³

10The respondent submits the Tribunal previously used s.7 of the LAT Act to extend the limitation period as set out in s. 56 of the Schedule, however it relies on the unreported reconsideration case of 18-001196/AABS v. Certas Home and Auto Insurance Company (“18-001196”) by Adjudicator Neilson for its position that the Tribunal lacks jurisdiction to extend the limitation period with s. 7 of the LAT Act. As a result of its position, the respondent did not provide any submissions on whether the limitation period should be extended by s. 7 of the LAT Act.

Does section 7 of the LAT Act apply to extend the limitation period to allow the applicant to dispute the denial of the NEB and physiotherapy treatment plan?

11I do not agree with the respondent that the Tribunal does not have jurisdiction to extend the limitation period under s. 7 of the LAT Act. According to the 18-001196 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. In 18-001196 the adjudicator ultimately found that the Tribunal does not have jurisdiction to extend the limitation period.

12I am not bound by another member’s decision; however, 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).⁴ 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.

13As a result, I will now turn to discuss whether or not the limitation period should be extended.

Should the Limitation period be extended by virtue of [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 [LAT Act](https://www.canlii.org/en/on/laws/stat/so-1999-c-12-sch-g/latest/so-1999-c-12-sch-g.html)?

14The Tribunal has jurisdiction to extend the time for filing of an appeal pursuant to section 7 of the LAT Act,⁵ which reads:

Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by 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.

15In Manuel v. Registrar, Motor Vehicle Dealers Act, 2002,⁶ the Divisional Court ruled that the overriding consideration on a request for an extension of time is whether the justice of the case requires that the extension be granted. The factors to be considered in making this determination are:

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

b. The length of the delay;

c. Prejudice to the other party; and

d. The merits of the appeal.

16The appellant has the onus to establish that the justice of the case requires the granting of the extension, but he or she need not satisfy all four factors. Rather, the analysis requires a balancing of the conclusions reached when applying the facts of the case to the factors.

Did the applicant have a bona fide intention to appeal?

17The applicant submits she was incapacitated at the material time from commencing the Tribunal application due to substance abuse issues and submits that her substance abuse issues were documented in the insurer examination (“IE”) report of Dr. Ligate dated September 23, 2015.

18The applicant further submits that incapacity has been found to be a ground for extending a statutory limitation period at the Tribunal and relies upon the case of L.R. v. RSA Insurance.⁷ However, that case is distinguishable on its facts. In that case, the applicant was assessed to be mentally incapable and the applicant’s wife was appointed by the court to be his litigation guardian. It was the result of administrative reasons of going through the legal process and different legal proceedings that caused the delay.⁸ Those facts do not apply in the case before me. I have not been directed to any evidence that the applicant was suffering under a mental incapacity that required a litigation guardian to be appointed.

19A review of the clinical notes and records shows a few notations from 2014 of blood tests for hepatitis B and C and syphilis, however the majority of the medical documentation is from February 2018 onwards. There was a notation of an admission to the hospital for being unresponsive,⁹ and that she suffered from mood and anxiety issues,¹⁰ as well as a note from Dr. Ghuman from March 29, 2018 that the applicant’s past psychiatric history included being seen by Dr. O’Doherty from October to December 2017. However, I have not been directed to any evidence that the applicant had a bona fide intention to appeal within the appeal period as these medical issues were mostly past the two year mark to appeal the denials.

20The applicant further submits she applied for a residential treatment program for her substance abuse issues, however that was an application to apply for the program and not a confirmation that she was attending the program. In any event, the date of the application was March 26, 2018 which was past the two year limitation period.¹¹ As a result, I have not been persuaded on a balance of probabilities that the applicant had a bona fide intention to appeal within the appeal period and the first factor has not been satisfied.

The length of the delay

21The length of the delay in filing the appeal application past the two year mark is more than nine months for the NEB claim and almost eight months for the physiotherapy claim. The applicant relies upon the L.R. v. RSA Insurance case in support of her position that the delay is relatively small. I do not agree with the applicant. The delay in the L.R. v. RSA Insurance was twelve months; however, as stated above, the facts of that case were unique and there was a documented reason for the delay. Those facts do not apply in the present case. I am not directed to any compelling evidence to explain the delay. The applicant’s submissions state that her potential catastrophic impairment and/or substance addictions prevented her from instructing counsel; however, those submissions have not been supported by the evidence and submissions are not evidence. I find this to be a significant delay and as a result, this second factor does not favour the applicant.

Prejudice to the respondent

22The applicant submits that there is no prejudice to the respondent as it has access to the documentary evidence to evaluate the applicant’s entitlement to the NEB and the physiotherapy treatment and the respondent has prepared two IE reports to address the NEB. As stated above, the respondent did not provide any submissions on the four factors.

23I find that there is prejudice to the respondent to have to defend its denial that is well over the two-year mark and outside the requirements of s. 56 of the Schedule; however, in my opinion, any prejudice to the respondent is more likely than not to be minimal. That being said, each factor does not need to be found to be in the applicant’s favour or the respondent’s favour in order to grant or not grant an extension to the limitation period. As the Manuel case states, it is whether the justice of the case favours an extension after taking into account the four factors.

Merits of the appeal

24This factor does not require me to make a determinative ruling on the merits, but on the facts to assess whether the applicant has a reasonable chance of success. The applicant submits she suffered physical and psychological impairments as a result of the accident and most likely meets the NEB test under the Schedule. Furthermore, the applicant submits she has submitted a treatment plan for catastrophic assessments—the costs of which are in dispute with the Tribunal.

25In my opinion, this is not a determination that can be made at this time. This written hearing was a preliminary issue hearing and not on the merits of the applicant’s case. I am unable to make a ruling on this factor without knowing the applicant pre-accident and post-accident activities and whether they have been affected as a result of the accident and I have not been provided with any medical evidence from the time the physiotherapy treatment plan was submitted in November 2015 to make a determination on whether the applicant’s request for physiotherapy has any merit.

26All four factors do not need to be satisfied; however, an analysis and balancing all the factors as discussed above is required. After a consideration of the four factors, the applicant was unable to direct me to evidence that showed she had a bona fide intent to appeal within the limitation period or an explanation for the delay that was supported by the evidence. It is also unclear whether there may be any merit in the appeal at this stage. Despite my finding that the prejudice to the respondent would be minimal, in my opinion, no one factor weighs more heavily than the others, but after considering all four factors together, I conclude that the justice of the case does not warrant extending the limitation period for the NEB and the physiotherapy treatment plan.

ORDER

27The application for a NEB and the physiotherapy treatment plan is statute barred in accordance with section 56 of the Schedule and is hereby dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2S.O. 1999, chap. 12, Sched G (“LAT Act”)
3. 3A.F. v. North Bleinheim Mutual Insurance Company 2017 CanLII 87546 (ON LAT) (North Blenheim)
4. 4Ibid at paragraph 19.
5. 5LAT Act, supra note 2
6. 62012 ONSC 1492 (“Manuel”)
7. 72019 CanLII 76846 (ON LAT) (“LR v RSA Insurance”)
8. 8Ibid at paras 21-22.
9. 9Applicant’s Written Submissions, Exhibit 2, Clinical Notes and Records of Dr. Ghally dated March 20, 2018.
10. 10Ibid Clinical Notes and Records dated May 29, 2018 at page 14 of 26.
11. 11Applicant’s Written Submissions, Exhibit 1, Letter date March 26, 2018 from Alcontrol.