Tribunals Ontario

Safety, Licensing Appeals and Standards Division Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca

Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca

RECONSIDERATION DECISION

Before: Brian Norris, Adjudicator

Date: March 6, 2020

File: 18-002292/AABS

Case Name: S. S. and Allstate Canada

Written Submissions by:

For the Applicant: Arash Goney-Farahani, Representative

For the Respondent: Peter Yoo, Counsel

OVERVIEW

1This request for reconsideration was filed by the applicant, S.S. It arises out of a decision in which I found that, pursuant to section 56 of the Schedule, she was statute-barred from disputing entitlement to non-earner benefits (“NEBs”) for failure to commence an application within two years of the respondent’s refusal to pay.

2The applicant makes the request pursuant to Rule 18.2(a) and (b) of the Licence Appeal Tribunal Rules of Practice and Procedure Version 1 (April 2016) (the “LAT Rules”). The applicant submits that I erred in law or fact such that I would likely have reached a different decision had the error not been made, and that I also acted outside my jurisdiction and violated the rules of natural justice and procedural fairness.

3The applicant submits the following errors of law or fact occurred:

1. I failed to explain how I concluded that the applicant’s actions were not evidence of a bona fide intention to appeal;
2. I failed to consider that the respondent was negligent in its delivery of the applicant’s accident benefit file (“AB file”);
3. I wrongly considered the prejudice to the respondent without evidence of said prejudice;
4. I failed to properly consider the length of delay following the expiration of the limitation period;
5. I failed to consider the merits of the applicant’s claim.

TIMELINE OF EVENTS

4The applicant was involved in an accident on February 20, 2015 and claimed entitlement to NEBs. The respondent denied entitlement to NEBs on March 9, 2016. The applicant filed for mediation with the Financial Service Commission of Ontario (“FSCO”) on March 14, 2016 and retained new counsel on or around June 14, 2016. The FSCO mediation was to take place on June 29, 2016, but never occurred and, thus, was deemed failed and the file closed. The respondent sent a copy of the applicant’s AB file to her new representative on July 13, 2016. Nothing happened over the next year.

5The applicant retained new counsel for a third time. She advised the respondent of this and, on August 20, 2017, requested another copy of her AB file. Unfortunately, the respondent sent a copy of the file to the applicant’s previous, incorrect, counsel on August 24, 2017.

6According to the evidence in the preliminary issue hearing, there was silence again for the next six months: there was no contact between the applicant and the respondent between August 2017 and March 9, 2018, when the respondent emailed the applicant’s counsel to advise that the limitation period expired the day before. The respondent eventually provided the AB file to the correct and current counsel on March 12, 2018, and the applicant applied to the Tribunal on March 15, 2018.

GUIDING PRINCIPLES

7In considering whether to grant an extension to appeal or apply to the Tribunal, the Tribunal has regard to the factors mentioned in A.F. v. North Blenheim Mutual Insurance Company¹ and Manuel v. Registrar, Motor Vehicle Dealers Act.² Those decisions provide four guiding factors to consider when determining whether to grant an extension under section 7 of the Licence Appeal Tribunal Act (“the LAT Act”). All four factors do not need to be met in order to grant an extension. Instead, they help determine whether one should be afforded. Importantly, the general rule is that the Tribunal will not extend a deadline to appeal unless one can demonstrate, based on these factors, that an extension is warranted.

Bona Fide Intention to Appeal

8The applicant submits that I erred in fact by determining she did not have a bona fide intention to appeal within the appeal period. The applicant claims her attempts to obtain a copy of her AB file, coupled with an email exchange with the respondent on August 21 and 22, 2017, is evidence of such an intention.

9The fact that the applicant did not receive the AB file in a timely manner has no bearing on her ability to file an application to the Tribunal within the two years of a denial of a benefit. The applicant had the information regarding her obligations in the letter denying her NEBs and did not comply with them. I see no such error in fact. My initial decision weighed the applicant’s evidence and, in paragraph 20, found that, while she may have sought legal advice and/or information, there was no evidence of a bona fide intention to appeal or apply to the Tribunal within the limitation period.

10The applicant refers to her engagement with the FSCO mediation process in 2016, implying an intention to appeal within the appeal period. I find that it is not evidence of a bona fide intention to appeal within the appeal period. Mediation is a non-binding and informal process provided to assist the parties in the resolution of disputes. After April 1, 2016, mediation was no longer a mandatory step in the dispute resolution process for claims under the Schedule. In other words, the applicant was not required to participate in mediation in order to adjudicate the issue. In addition, participation in the mediation process does not displace the applicant’s obligation to file an appeal within two years of a denial.

11The August 21 and 22, 2017 email exchange shows the applicant emailed a .pdf document to the respondent, requesting the AB file. The respondent replied, asking for future correspondence to be sent by mail or fax, and the applicant replied after that, advising an email was sent because the respondent’s “fax is always busy”. The email exchange submitted by the applicant is not evidence of a bona fide intention to appeal the NEB denial. Nowhere in the email exchange does the applicant request the AB file for the purpose of filing an application, nor does she indicate any intention of doing so.

12The applicant also submits that an email dated March 8, 2018, which was not included in the preliminary hearing, is evidence of an intention to file an application within the two-year limitation period. I disagree. While the email requests the denial date for NEBs and was sent on the day the two-year limitation period expired, it was sent shortly after 6:00 p.m. and, pursuant to LAT rules, it was sent after regular business hours and is deemed to have been sent on March 9, 2018, the day after the limitation period expired. In any event, neither party provided this correspondence for my consideration in the preliminary issue hearing. As a result, in addition to occurring a day following the expiration of the limitation period, I consider this is akin to making new arguments at the reconsideration stage and reject the premise.

13The applicant further submits I made a significant error in fact by not finding the applicant took reasonable steps to obtain the limitation dates and file the application. By failing to explain this, the applicant submits, I violated the rules of natural justice. I find no such error or violation of the rules of natural justice.

14My decision on this issue is explained in paragraph 20 of the preliminary decision. In it, I found the applicant’s actions, or lack thereof, did not support a finding of a bona fide intention to appeal. I found the applicant’s evidence failed to show reasonable steps taken to obtain the limitation dates and file an application within the limitation period. There was no evidence, within the limitation period, of a request for the denial dates or any discussion about filing an application. Instead, I found evidence showing the applicant sought legal advice and a copy of the AB file.

15The applicant’s argument centers around the issue that the respondent failed to provide a copy of the AB file in a timely manner. I acknowledge the respondent’s failure, but this alone does not relieve the applicant of her obligation to file an appeal within the two-year limitation period. In paragraph 23, I noted the applicant did not dispute receipt of the initial denials. To date, the applicant has provided no explanation as to why she was unable to determine the limitation deadline from the initial denials. Considering this, it is irrelevant whether the respondent provided the AB file in a timely manner because there is no evidence or submissions disputing receipt of the denials in the first place. In addition, the applicant presented no evidence suggesting that she attempted to mitigate the delay following the August 2017 request for the AB file. As previously noted, there is no evidence the applicant contacted the respondent at any time between August 22, 2016 and March 12, 2017 to follow up on the status of the requested AB file. Instead, the applicant did nothing for over six months.

16The applicant also submits that I failed to consider actions such as: contacting the adjuster to request the applicant’s file, requesting clarification from the respondent as to why the applicant’s file was not provided, and the applicant’s attempts to retrieve denial dates from the adjuster. While I have addressed the first two points, I will now address the last position.

17In the preliminary hearing, the applicant provided no submissions or evidence to suggest an attempt to obtain or retrieve the denial dates or, likewise, to determine the end of the limitation period. As noted above, the evidence only showed the applicant received legal advice and attempted to obtain a copy of the file. There was no evidence, such as emails or other correspondence, to support the applicant’s claim that she asked the respondent for the denial dates or the end of the limitation period. I have already addressed the March 8, 2016 email and, as noted above, there is no evidence the applicant ever followed-up with the respondent to inquire about the status of the AB file until the limitation period had expired.

The Prejudice to the Other Party

18The applicant also submits I erred by failing to consider the principles in Elkhouli v. Senathirajah³ and ignored the proposition that prejudice, in the applicant’s case, should be assessed on reviving the application after missing the limitation period. I disagree.

19I find the applicant’s matter distinguishable from Elkhouli v. Senathirajah and I did not need to address it in my initial decision. Elkhouli v. Senathirajah considered prejudice in reviving a civil matter after the claim was administratively dismissed as abandoned. In the applicant’s case, it does not involve an administrative dismissal after initiating a claim, but the failure to initiate one in the first place.

20The respondent holds a more appropriate legal authority is outlined in Szpakowsky v. Tenenbaum.⁴ The respondent submits there is a presumption of prejudice in actions which arise after the passage of a limitation period. I agree. As noted in my initial decision, there is an inherent prejudice to insurer’s in defending untimely claims which are long passed the initial decision to deny the benefit whereby it must locate, produce, and rely on experts and evidence which may not be available anymore. Limitation periods address this prejudice and provide finality to the parties involved.

Length of Delay

21The applicant submits that I erred in law by failing to consider the length of the delay properly. The applicant submits that my decision should have only focused on the delay following the limitation period’s expiration and ending on the date the application was filed. The respondent disagrees and submits the applicant provided no LAT decisions or other legal authority to support this position.

22While the applicant submits the intention of this factor may be to focus on the length of delay following the expiration of the limitation period, I am permitted to interpret jurisprudence broadly and consider a wide range of factors or reasons in justifying why an extension should or should not be given. The guiding principles are not strict elements that must each be met, and they may push or pull differently when making that analysis. The length of the delay is just one of the principles and I disagree that my decision should only focus on the delay immediately following the expiration of the limitation period. I see no reason why the overall delay in filing an application cannot be considered during the analysis and the applicant provided no specific reference to any caselaw to support her position.

23If I am wrong, I find the caselaw is unsupportive of the applicant’s position. Specifically, Manuel notes that a short delay does not automatically entitle the applicant to an extension of the limitation period.⁵ The applicant must explain the extenuating circumstances causing the delay, regardless of how long or short it is. Here, the applicant’s only reason for the delay is because the respondent failed to produce the AB file to her new representative, and as a result, she was unable to determine when the limitation period expired. This position fails to consider the applicant received the denial on two different occasions. Further, counsel has other methods to confirm when the date of denial of benefits occurred in order to ensure compliance with the Schedule.

24The applicant submits that I ought to consider the decision of Appellant v. Registrar of Motor Vehicles⁶ (“A v. R”) which, according to the applicant, focuses on the reason to grant or deny an extension on whether the delay would cost taxpayers money. While I do not see the same overarching focus as the applicant, I differentiate the decision from this case because, in A v. R, the respondent, which happened to be the Registrar of Motor Vehicles, is essentially a representative of the Government. In this case, the parties are an insurance company and an insured person. Since neither are a representative of the Government and both are represented by their own counsel, the bearings on taxpayer dollars play an insignificant role in determining the issue before me. What is important to note is that timelines are put in place to ensure finality. It is very difficult for two parties of a contract to manage disagreements without some finality. Timelines are also put in place to ensure procedural fairness for the parties.

25In any event, a hearing should not occur, and stakeholders and the Tribunal should not incur the costs associated with a hearing, if, as in this case, an applicant has failed to reasonably justify missing the limitation period.

Merits of the appeal

26The applicant submits she was unable to proffer any evidence to support the merits of the appeal because the respondent failed to deliver a copy of her AB file. The respondent submits this cannot be true considering the applicant eventually received a copy of the AB file on March 12, 2018, about six months prior to the applicant’s deadline to file response submissions. I agree.

27There is no reasonable explanation as to why the applicant failed to address this factor. The applicant was in possession of the AB file and could have submitted evidence to show the appeal is with merit but chose not to. Further, the applicant can access her medical records independent of the respondent and the AB file is not required to make submissions on the merits of her case.

CONCLUSION

28The applicant filed her application after the expiration of the two-year limitation period. Her only argument to extend the limitation period is because the respondent failed to provide a copy of her AB file. I have considered this position and the four factors and find that justice of this case does not require granting an extension of the limitation period.

29For the reasons noted above, I deny the applicant’s request for reconsideration.

Footnotes

1. 1A.F. v. North Blenheim Mutual Insurance Company, 2017 CanLII 87546 (ON LAT).
2. 2Manuel v. Registrar, 2012 ONSC 1492.
3. 3Elkhouli v. Senathirajah, 2014 ONSC 6140.
4. 4Szpakowsky v. Tenenbaum, 2017 ONSC 18.
5. 5Manuel v. Registrar, 2012 ONSC 1492.
6. 6Appellant v. Registrar of Motor Vehicles, 9155/MVIA.