Gareau v. Economical Mutual Insurance Company, 2020 CanLII 94748

Citation: Gareau v. Economical Mutual Insurance Company, 2020 ONLAT 19-011520/AABS

Released Date: 11/05/2020

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:

Richard Gareau

Applicant

and

Economical Mutual Insurance Company

Respondent

REASONS FOR DECISION AND ORDER ON A PRELIMINARY ISSUE

ADJUDICATOR: Sandeep Johal

APPEARANCES:

Counsel for the Applicant: John P. Lundrigan and Ludmilla Jarda

Counsel for the Respondent: Nadine Rizk

Heard by way of written submissions.

OVERVIEW

1The applicant was injured in an automobile accident on June 5, 2010 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996¹ (the ''Schedule'').

2The applicant applied for housekeeping and home maintenance benefits that were denied by the respondent due to the applicant not suffering from a catastrophic impairment as defined under the Schedule. The applicant disagreed with that decision and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3At the case conference, the respondent raised a preliminary issue and whether the applicant is required to proceed with his claim for housekeeping and home maintenance benefits prior to obtaining a catastrophic impairment designation.

4The applicant seeks a stay of his Tribunal application or an adjournment sine die (adjourned with no fixed date for a hearing) until the applicant obtains a catastrophic impairment designation.

ISSUES IN DISPUTE

Preliminary Issue

5The following is the preliminary issue which will be addressed as part of this hearing:

(i) Is the applicant compelled to proceed with his Tribunal application to dispute his claim for a housekeeping and home maintenance benefit denied by the respondent prior to obtaining a catastrophic impairment designation?

Substantive Issues

6The following are the substantive issues in dispute:

(i) Is the applicant entitled to a housekeeping and home maintenance benefit in the amount of $240.00?

(ii) Is the applicant entitled to an award under s. 10 of Ontario Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant?

(iii) Is the applicant entitled to interest on any overdue payment of benefits?

7Only the preliminary issue will be addressed as part of this hearing.

RESULT

8The applicant’s Tribunal application is dismissed. As a result of the Tomec² decision the applicant is not prejudiced to bring his claim once he has “discovered” his entitlement to a housekeeping and home maintenance benefit. The Tribunal’s mandate is to provide efficient and timely resolutions of disputes, and to order a stay or an adjournment sine die goes against the Tribunal’s mandate.

ANALYSIS

9The applicant’s position is that at the time of his Tribunal application the Tribunal and Divisional Court decisions³ held that the limitation period was a hard limitation period and if the applicant did not dispute his entitlement within two years he would be barred from claiming it.

10In Tomec, the applicant applied for housekeeping and home maintenance benefits and the insurer advised that she did not qualify for them. She did not apply for a catastrophic impairment designation at the time and so therefore did not dispute the denial. Several years later she was designated as suffering from catastrophic impairments and applied for those benefits. The insurer took the position that she failed to apply within the limitation period. The Tribunal and Divisional Court agreed with the respondent.

11Upon appeal to the Court of Appeal, it was held that the limitation period under the Schedule is not a hard limitation period and is subject to the rule of discoverability because the refusal to pay a benefit and the ability to make a claim are inextricably intertwined in the cause of action. The refusal cannot be stripped out of the cause of action and treated as if it is independent from it.⁴

12According to the applicant in this case, his cause of action relates to the housekeeping and home maintenance benefits which are inextricably tied to whether he has obtained a catastrophic impairment. The applicant takes the position that If he is forced to proceed with his Tribunal application he may only be able to lead speculative evidence that he might someday have a catastrophic impairment and this is the situation the decision in Tomec intended to prevent.⁵

13The applicant further relies upon the Tribunal case of R.D. v Pafco Insurance Company,⁶ that he cannot be forced to dispute a benefit when he was not legally eligible to claim it. However, in R.D. the respondent took the position that the applicant was statute-barred from claiming housekeeping and home maintenance as the claim was made more than two years after the denial. In R.D. the Adjudicator agreed with the Tomec reasoning that the claim was not barred as the applicant was not yet found to have a catastrophic impairment. However, In R.D. the issue of whether the applicant sustained a catastrophic impairment was in dispute for that hearing. In the present case, the applicant has not yet applied for a catastrophic impairment designation and that issue is not before the Tribunal.

14As a result of Tomec and R.D. the applicant submits she cannot be compelled to proceed with her claim for housekeeping and home maintenance as she has not yet been determined to have a catastrophic impairment. Therefore, her Tribunal application should be stayed or adjourned sine die. The applicant further relies upon Rule 3.1 of the Tribunal’s Common Rules of Practice and Procedure that the Rules will be liberally interpreted and applied and may be waived, varied or applied on the Tribunal’s own initiative to ensure efficient, proportional and timely resolution of the merits of the proceedings before the Tribunal.

15The applicant also relies upon s. 2 of the Statutory Powers Procedure Act,⁷ that the SPPA and any rule made by a tribunal shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.

16The respondent submits the applicant is seeking to stay his Tribunal application in order to preserve the two year limitation period and the Court of Appeal decision in Tomec found that the doctrine of discoverability applies to the Schedule. As a result, the cause of action only arises when the applicant became eligible to receive the benefits, namely when the applicant is declared catastrophically impaired.

17The respondent’s position is that given the state of the law in Ontario as a result of the Tomec decision, the applicant does not have a cause of action as he has not been deemed to be catastrophically impaired and he would not be prejudiced by withdrawing his application and brining the application before the Tribunal if, and when, he is deemed catastrophically impaired.

18According to the respondent, it would be unreasonable to order a stay of the applicant’s Tribunal proceeding for an indeterminate period of time when the Court of Appeal has stated that the limitation period does not begin to run until a cause of action arises. To do so, would risk utilizing the Tribunal’s precious resources and allowing the influx of applications that could possibly be held by the Tribunal indefinitely.

19I agree with the respondent. As a result of Tomec, I find that the applicant is not barred from claiming housekeeping and home maintenance benefits until he has discovered his claim to them which would be once he has sustained a catastrophic impairment. To dispute the benefits at this stage when the applicant has yet to apply for a claim of a catastrophic impairment would create an absurd result, which would be that the applicant would be attempting to dispute a claim for housekeeping and home maintenance to which he has no entitlement until his medical status deteriorates to the point of making a catastrophic impairment claim. That has not happened.

20Rule 3.1 of the Tribunal’s Common Rules of Practice and Procedure, and s. 2 of the SPPA does not assist the applicant in seeking a stay of his Tribunal application for an indefinite adjournment or an adjournment sine die.

21Rule 3.1 reads as follows:

These Rules will be liberally interpreted and applied and may be waived, varied or applied on the Tribunal’s own initiative, or at the request of a party, to:

(a) Facilitate a fair, open and accessible process and to allow effective participation by all parties, whether they are self-represented or have a representative;

(b) Ensure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal; and

(c) Ensure consistency with governing legislation and regulations.

22Section 2 of the SPPA reads as follows:

This Act, and any rule made by a tribunal under subsection 17.1(4) or section 25.1, shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.

23Section 17.1 (4) relates to rules made with respect to costs and s. 25.1 states that a tribunal may make rules governing the practice and procedure before it.

24In my view, the key take-away from Rule 3.1 that relates to this matter are that the Tribunal must ensure an efficient, and timely resolution of the merits of the proceeding before the Tribunal. (emphasis added). The key take-away from s. 2 of the SPPA is that the tribunal rules shall be construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits. (emphasis added)

25What the applicant seeks with a stay or an adjournment sine die is contrary to the Tribunal’s mandate to provide an efficient, timely resolution which is just and the most expeditious. Furthermore, it would not be cost-effective for the Tribunal to keep files open in a care-taker capacity for applicants such as this case, where the file is unable to proceed because the applicant has not met the requirements to qualify for the benefit.

26As a result, of the above, I find that the applicant’s claim cannot proceed at the Tribunal at the present time and should be dismissed without prejudice to the applicant.

ORDER

27The applicant’s Tribunal application is dismissed. As a result of the Tomec decision the applicant is not prejudiced to bring his claim once he has “discovered” his entitlement to housekeeping and home maintenance. The Tribunal’s mandate is to provide efficient and timely resolutions and to order a stay or an adjournment sine die goes against the Tribunal’s mandate to provide efficient and timely resolutions of disputes.

Released: November 5, 2020

___________________________

Sandeep Johal

Adjudicator

Footnotes

1. 1O. Reg. 403/96.
2. 2Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882. (“Tomec”)
3. 3Tomec v. Economical Mutual Insurance Company, 2018 ONSC 5664
4. 4Tomec at para. 36.
5. 5Tomec at para. 50-52.
6. 62020 CanLII 34421 (ON LAT) (“R.D.”)
7. 7R.S.O. 1990. C. S.22 (“SPPA”)