Licence Appeal Tribunal File Number: 19-014152/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:
Tammy Allen
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION AND ORDER
VICE-CHAIR:
D. Gregory Flude
APPEARANCES:
For the Applicant:
Tammy Allen, Applicant
William Keele, Counsel
For the Respondent:
Bruce Chambers, Counsel
Heard by Videoconference:
June 18, 2021
BACKGROUND
1The applicant, Tammy Allen, was involved in an automobile accident on February 19, 2014, and is seeking benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). She was denied a non-earner benefit (“NEB”) by the respondent, Certas Home and Auto Insurance Company (“Certas”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) disputing the denial.
2At issue in this preliminary issue motion is the application of the 2-year limitation period in s. 281.1 of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”) and in s. 56 of the Schedule as they both read on February 2, 2014. If I were to find that Ms. Allen’s claim for a NEB is barred by the operation of the 2-year statutory limitation period, then Ms. Allen asks me to exercise my discretion under s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (“LAT Act”) to extend the limitation period and allow her claim to proceed.
3Having considered the submissions of the parties, I find that Ms. Allen’s claim was brought beyond the 2-year limitation period and therefore is barred by s. 281.1 of the Act and s. 56 of the Schedule. This is not a case for the exercise on my discretion under s. 7 of the Lat Act.
Statutory Scheme for Claiming a NEB and Chronology
4To understand the issue in this motion, it is necessary to understand the statutory scheme for claiming a NEB and the chronology of material events.
5Part VIII of the Schedule addresses the administrative steps necessary to apply for a benefit. Section 32 (1) required Ms. Allen to notify Certas within 7 days after the accident or as soon as practicable thereafter. The accident was on February 19, 2014. It appears that Ms. Allen notified Certas promptly because Certas sent the appropriate claim forms on February 24, 2014 in accordance with its obligations under s. 32(2).
6Pursuant to s. 12 (1) of the Schedule, to be entitled to a NEB, Ms. Allen is required to demonstrate either of the following conditions:
[She] suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.
[She] suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and,
i. was enrolled on a full-time basis in elementary, secondary or post-secondary education at the time of the accident, or
ii. completed her education less than one year before the accident and was neither employed nor a self-employed person after completing his or her education and before the accident, in a capacity that reflected his or her education and training.
7It is common ground that Ms. Allen did not qualify for an income replacement benefit. It is also common ground that she was not enrolled full-time in post-secondary education.
8A NEB is one of four benefits that are defined in s. 36 of the Schedule as a “specified benefit.” The specified benefits are, an income replacement benefit, a NEB, a caregiver benefit, and a housekeeping and home maintenance benefit. The last two benefits, a caregiver benefit and a housekeeping and home maintenance benefit, are not generally available unless the injured party is found to be catastrophically impaired or has purchased optional benefits. Since Ms. Allen had not been found to be catastrophically impaired as of the date of the hearing, nor had she purchased optional benefits, she is not entitled to either of these two benefits.
9What marks an application for a specified benefit is that, by virtue of s. 36 (2) of the Schedule, the application must be accompanied by a Disability Certificate, designated as an OCF-3. An OCF-3 is not required to apply for other benefits, such as medical and rehabilitation benefits.
10Ms. Allen was enrolled as a parttime student at a hairdressing school in Oshawa at the time of the accident. She was almost halfway through the course. To be entitled to a NEB, she would need to establish that she suffered from a complete inability to lead a normal life. This standard has been further clarified by s. 3(7)(a) of the Schedule as follows:
a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident
11Ms. Allen submitted an Application for Accident Benefits form, designated as an OCF-1. On receipt of the OCF-1, Certas responded with an Explanation of Benefits, Form OCF-9, on March 19, 2014. The OCF-9 stated: “Non-Earner Benefits: We are unable to determine your entitlement to the Non-Earner benefit as we have not received a completed Disability Certificate (OCF-3).”
12On June 23, 2014, Ms. Allen submitted an OCF-3 prepared by Dr. W. Ke, a physician. In Box 6 of the OCF-3, in response to the question “Does the applicant suffer a complete inability to carry on a normal life? (i, e. Has the applicant sustained an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident?),” Dr. Ke answered “No.”
13Certas responded to the June 23, 2014 with an OCF-9 Explanation of Benefits on July 2, 2014 stating: “Non-Earner: Based on the OCF-3 of June 23, 2014, completed by Dr. Ke, you do not qualify for a Non-Earner Benefit.” The OCF-9 set out the steps to be taken to appeal Certas’s decision to either the Ontario Courts or the Financial Services Commission of Ontario. This OCF-9 is at the heart of the dispute between the parties. Certas submits that it is a clear and unequivocal denial of a NEB. Ms. Allen asserts that it was superseded by an OCF-9 on November 4, 2014 and that there has been no clear and unequivocal denial, so the limitation period has not started to run.
14Ms. Allen retained the law firm of Kelly Greenside Bruce who wrote to Certas on October 29, 2014. The letter demanded payment of a NEB: It states “The Disability Certificate completed by the family doctor indicates the client was a student at the time of the accident and is unable to continue. Please issue a Non-Earner Benefit including interest.” This statement is, of course, a non-sequitur, as it is not the status of being a student that would entitle Ms. Allen to a NEB, but the fact of being completely unable to lead a normal life.
15Certas responded to the October 29 lawyers’ letter with an OCF-9 Explanation of Benefits dated November 4, 2014 stating:
Further to the letter dated 10/29/14 we have received a completed Disability Certificate (OCF-3) dated 06/23/14 advising you are unable to continue an educational program as a result of the accident. The form, however, does not support a complete inability to carry on a normal life as a result of the accident to be considered for the Non-earner benefit. Please provide our office with the Disability Certificate (OCF-3) supporting the Non-earner benefit for further [sic] consideration.
16The October 29, 2014 letter and the responding November 4, 2014 OCF-19, represents the last exchange of correspondence between Ms. Allen, or on Ms. Allen’s behalf and Certas, regarding entitlement to a NEB until Certas received an OCF-3 dated April 23, 2019 signed by Nicole Nadeau, an Occupational Therapist.
17Certas did receive other medical documentation relating to Ms. Allen’s psychological treatment and seeking further psychological sessions. Dr. Brenda Lowick, a psychologist, issued an “update” report dated November 13, 2014, detailing the treatment she had been providing Ms. Allen since she was injured in a 2003 accident, and the set-back in her recovery that the 2014 accident caused. Dr. Lowick does not specifically address the NEB test, but she does note improvement since the 2014 accident, but not to pre-accident status.
18A second update report from Dr. Lowick, dated May 3, 2016, or approximately 124 weeks post-accident, details Ms. Allen’s condition in 2016 and notes deterioration since the previous 2014 report. Dr. Lowick notes that she (Dr. Lowick) had moved to British Columbia in 2014 and sessions between 2014 and 2016 with Ms. Allen had been on the telephone.
19On March 30 and April 6, 2018, Ms. Nadeau conducted an in-home assessment of Ms. Allen at the request of Dr. Lowick. In her report dated April 9, 2018, Ms. Nadeau notes Ms. Allen advised her of greatly reduced activity in the areas of personal hygiene, housekeeping, and engagement in enjoyable activities compared to her pre-accident life. Approximately one year later, on April 23, 2019, Ms. Allen forwarded an OCF-3 signed by Ms. Nadeau indicating that Ms. Allen now met the complete inability test for a NEB. Ms. Allen applied to the Tribunal on December 20, 2019, five and a half years after the June 2014 denial and five years and seven weeks after the November 2014 denial letter.
Position of the Parties
20Ms. Allen submits that she did not apply for a NEB until the October 29, 2014 letter from her counsel asking for payment of a NEB. In her submission, the applicable OCF-9 denying the benefit is the OCF-9 dated November 4, 2014 and that that document does not unequivocally deny the benefit for two reasons; the box in Part 2 of the Form stating “Not Eligible/Stoppage of Benefits” is not ticked, and the statement “Please provide our office with the Disability Certificate (OCF-3) supporting the Non-earner benefit for further [sic] consideration” is equivocal as it suggests that Certas has not yet made a final decision. The impact of the equivocation is that the limitation period did not start to run.
21Ms. Allen further submits that the Ontario Court of Appeal decision in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 (“Tomec”) establishes that the limitation period in the Act and Schedule should be read as importing a discoverability dimension, that is, the limitation period does not to run until Ms. Allen knew or ought to have known she had a claim for a NEB. In the absence of a clear denial, Ms. Allen was unaware of her right to appeal.
22Finally, Ms. Allen submits that, should I find that the limitation period did commence running in 2014, either in July or November, then I should exercise my discretion under s. 7 of the LAT Act to extend the limitation period because the justice of the case demands it.
23Certas makes two submissions. It submits that the applicable denial is the OCF-9 dated July 2, 2014. It submits that Ms. Allen applied for a NEB in June 2014 and the July 2 denial is unequivocal. Ms. Allen does not seriously dispute the fact that the July 2, 2019 OCF-9 is an unequivocal denial. In Certas’s submission, the November 4, 2014 OCF-9 simply restates the grounds for denial set out in the earlier OCF-9. The statement requesting a supporting OCF-3 is nothing more than a good faith indication that Certas would consider other evidence that might be provided.
24Certas’s second submission addresses entitlement to a NEB and the application of the LAT Act. It points out that Ms. Allen carries the onus to establish that she met the complete inability test within 104 weeks of the date of the accident. In its submission, there is no evidence to support such a finding. It submits that the prejudice it would suffer is obvious. In addition to the lack of medical evidence to support entitlement, the delay is three and a half years, and the appeal has little merit to it.
ANALYSIS
25The leading case with respect to the sufficiency of a denial of a benefit for the purpose of starting the running of the limitation period is Smith v. Co-operators General Insurance Co. 2002 SCC 30 (“Smith”). In that case, the Supreme Court of Canada addressed an insurance company’s obligation to “inform the [insured] in writing of the procedure for resolving disputes that are described in subsection 280 (1) of the Act” where an insurance company refuses to pay or reduces a benefit. The wording in that case stemmed from the 1993 version of the Schedule and the current wording is arguably more stringent, requiring “notice” in writing, not simply a duty to “inform.”
26The question before the court was “whether the insurer fulfilled its obligation under s. 71 of the Statutory Accident Benefits Schedule - Accidents after December 31, 1993 and before November 1. 1996, O. Reg. 776/93 ("SABS''), to inform the insured of the procedure for resolving disputes set out in ss. 279 to 283 of the Insurance Act, R.S.O. 1990, c. 1.8,” thus the focus of the court was on the adequacy of the information concerning the dispute resolution process. Even where the court introduces the concept of “an equivocal sense of indeterminacy”, its focus is still on the information the insurer gave about the appeal process. The “equivocal” wording was: “If you disagree with our assessment, please contact us immediately. If we cannot settle the application to your satisfaction, you have the right to ask for mediation.”
27In the current case, Ms. Allen has not impugned the wording advising of the appeal process. She impugns the wording of the November 4, 2014 denial, because in her submission, after reasserting grounds for denial set out in the July 2, 2014 OCF-9, Certas goes on to say, “Please provide our office with the Disability Certificate (OCF-3) supporting the Non-earner benefit for further [sic] consideration.”
28Ms. Allen relies on Zeppieri v. Royal Insurance Co. of Canada [1994] O.I.C.D. No. 147 ("Zeppieri”) to expand the Smith doctrine from information regarding the appeal process to the substance of the denial itself. Zeppieri predates Smith. Despite this caveat, Zeppieri sets out a useful two-part approach to determining when the limitation period commences:
In my view, a two-step process must determine whether the limitation period applies in the circumstances of this case. First, it is necessary to ask whether, and when, there was a refusal to pay benefits; and second, whether the insurer may rely on a limitation period that runs from the date of the refusal.
29While the cases Ms. Allen cites that follow Zeppieri, Adami v. Wawanesa Mutual Insurance Co. [2008] O.F.S.C.D. No. 142 (“Adami”), Gill v. Economical Insurance Co. [2010] I.LR. 1-4936, 183 A.C.W.S. (3d) 965 and Kehoe v. Allstate Insurance Co. of Canada [2016] O.F.S.C.D. No. 146, all deal with much clearer failures by the insurer to deny a benefit in clear and unequivocal language, they do establish that the onus is on the insurer to prove that its refusal to pay benefits is clear and unequivocal before it can rely on the limitation period.
Clear and Unequivocal Denial
30A review of the evidence shows that Ms. Allen’s submission that she did not apply for a NEB until October 29, 2014 when her lawyer sent a letter on her behalf, does not withstand scrutiny. As a defined specified benefit, a NEB requires an extra step in the benefit application process, the preparation and filing of an OCF-3 Disability Certificate. Thus, by filing an OCF-3 on June 23, 2014, Ms. Allen applied for a specified benefit. As stated above, she did not qualify for the other three specified benefits. The only specified benefit available to her was a NEB, and by filing an OCF-3 on June 23, she was unequivocally applying for that benefit. I find that Ms. Allen applied for a NEB on June 23, 2019.
31The wording of the July 2, 2014 OCF-9 denying Ms. Allen entitlement to a NEB is short and to the point: “Non-Earner: Based on the OCF-3 of June 23, 2014, completed by Dr. Ke, you do not qualify for a Non-Earner Benefit.” It would be difficult to conceive of clearer wording than “you do not qualify for a Non-Earner benefit.” I can see no ambiguity that might mislead Ms. Allen into misunderstanding Certas’s position on her entitlement to a NEB.
32A second question arises out of the wording of the November 4, 2014 OCF-9. Does the inclusion of the last sentence, “Please provide our office with the Disability Certificate (OCF-3) supporting the Non-earner benefit for further [sic] consideration” somehow muddy the waters? I find that it does not. A major question in Zeppieri was the post-denial discussions between Mrs. Zeppieri’s counsel and Royal Insurance. Following counsel’s representations, Royal Insurance accepted that Mrs. Zeppieri had suffered a relapse and reinstated the benefit. It refused to pay the benefit between the date of its initial refusal to pay and the date it determined Mrs. Zeppieri had relapsed, a period of approximately one year. The adjudicator did not find that the continued discussions about paying the unpaid benefit had any impact on the original refusal, and that Mrs. Zeppieri was beyond the two-year limitation period.
33In Adami, the adjudicator recognized the ongoing obligation of an insurer to adjust a claim in good faith. He stated:
I am aware that insurers are required to keep an open mind, even after denying a claim and that the jurisprudence supports the approach that a valid refusal is not voided because an insurer continues discussions after giving the refusal.
34I find that the November 4, 2014 denial is no more than Certas keeping an open mind. The explanation of benefits says no more than Certas denied the application for a NEB because of the lack of a supportive OCF-3, the position asserted in the July 2 OCF-9, but it is maintaining an open mind. It will reconsider its position if further evidence is forthcoming. This statement does not create the “equivocal sense of indeterminacy in the decision of the insurer” urged on me by Ms. Allen. More importantly, it does not negate the original refusal.
35I also cannot find that the failure to select the Not Eligible/Stoppage of Benefits option on the November 3, 2014 OCF-9 created an ambiguity that might confuse Ms. Allen. It is clear that the section in question addresses entitlement to an income replacement benefit, a benefit that was not available to Ms. Allen and which she admittedly did not apply for. The section starts with a check box marked “A-Eligible” followed by a chart to set out calculations on the amount of income replacement benefit. It ends with a check box marked “B-Not Eligible/Stoppage of Benefits.” There is nothing in the section that might mislead Ms. Allen into believing it deals with a NEB or that leaving it blank means that Certas was not denying her a NEB.
Tomec and Discoverability
36Ms. Allen argues that the discoverability principle in Tomec operates in this case to extend the limitation period. I have some difficulty with that proposition.
37Tomec establishes the principle that the two-year limitation period in the Schedule incorporates a discoverability dimension. Tomec involved a claim for an attendant care benefit. Ms. Tomec was found to be entitled to that benefit but subject to the statutory payment limit of 104 weeks for non-catastrophically impaired claimants. Payment of the benefit was terminated after 104 weeks, not because Ms. Tomec no longer required attendant care but, because she had not yet been found to be catastrophically impaired. The respondent, Economical Mutual, took the position that it had “denied” the benefit at the conclusion of 104 weeks and refused to resume payment when Ms. Tomec was subsequently determined to be catastrophically impaired some years later.
38The discoverability principle requires consideration. Ms. Tomec knew she required an attendant care benefit from early in her claims process, and Economical Mutual agreed with her. It was her subsequent discovery that she qualified for further benefits that operated to extend the limitation period.
39Ms. Allen seeks payment of a NEB. What negates the discoverability principle and distinguishes the facts from Tomec is that Ms. Allen applied for a NEB in June 2014. Indeed, the application was in response to Certas advising her that it could not determine her entitlement to a NEB without an OCF-3. On receipt of an unsupportive OCF-3, Certas denied the benefit. There is no subsequent sequence of events which terminates entitlement or triggers further entitlement as there was in Tomec.
40The dispute between the parties in this case is fundamentally different. Ms. Tomec was entitled to attendant care benefits and lost entitlement because of the expiry of the statutory entitlement period. On the current facts, Ms. Allen was aware that she might be entitled to a NEB but failed to produce evidence of entitlement, despite being requested to do so. She had the facts by June 23, 2014 and knew of the denial in and around July 2, 2014. She knew by the latter date, or ought to have known, that she had a potential claim which she chose not to advance for over five more years.
Legal Representation
41By June 23, 2014, Ms. Allen was represented by counsel. Her evidence was that counsel did not keep her informed of the steps necessary to advance a claim for a NEB. She first became aware that she might be entitled to a NEB when Nicole Nadeau, the occupational therapist referred to Ms. Allen by Dr. Lowick, asked her if she was getting a “monthly cheque.” The earliest this conversation might have occurred was on March 30 or April 6, 2018 when Ms. Nadeau attended to do an assessment of Ms. Allen in her home.
42Ms. Allen testified that she retained counsel to advance her claim for benefits. She stated that there were no discussions about a NEB claim, and she was unaware if counsel had claimed the benefit on her behalf. She was not advised of Certas’s response to her claim.
43The record shows not only that an OCF-3 was filed on Ms. Allen’s behalf, but that counsel also made further enquiries about entitlement on October 29, 2014, triggering the November 4, 2014 OCF-9. If I accept Ms. Allen’s evidence, then counsel acted without instructions from June 2014 to October 2014, a difficult proposal to accept. In the absence of counsel’s file and notes of conversations, I cannot conclude that Ms. Allen was negligently represented. In any event, the larger question is whether the failings of counsel, if any, should be borne by Certas after a lapse of over five years. In my view, they should not. I find that counsel’s alleged lack of action should be addressed in another forum on the full record of the dealings between counsel and Ms. Allen, and does not excuse Ms. Allen’s failure to dispute the denial of a NEB within two years.
Qualification for a NEB
44The qualification prerequisites for entitlement to a NEB straddle the analysis of the applicability of Tomec and the merits of the case with respect to the application of s. 7 of the LATA. I will discuss both aspects here.
45According to s. 12 of the Schedule, Ms. Allen must show that she suffered “a complete inability to carry on a normal life as a result of and within 104 weeks after the accident” [emphasis added]. There is no equivalent qualification period in s. 19, the section that governs entitlement to attendant care benefits. While I recognize that the discoverability principle in Tomec may apply to s. 19 claims where, after an initial blanket denial of benefits early in the claim process, a claimant’s condition deteriorates to the point of needing an attendant care benefit, Ms. Allen is required to show entitlement to a NEB within 104 weeks.
46It seems to me that the 104-week qualification period is an evidentiary matter, that is, notwithstanding, the claim was advanced after the 104-week period, if the evidence shows that Ms. Allen met the test within the 104-week period, then she may be entitled to the benefit. Certas submits that the evidence advanced in this case does not extend that far. There is unsupportive evidence in the form of an OCF-3 Disability Certificate and a 2014 report from Dr. Lowick indicating Ms. Allen was engaged in some of her previous lifestyle activities. Dr. Lowick states:
She also began texting me about her progress, which provided the opportunity for further encouragement. This activation plan has been working, and she is now planning and making regular meals, and is gradually increasing personal care and household tasks. We have recently been adding some social contact tasks, and she has been working on that as well.
47Later reports from Dr. Lowick and Ms. Nadeau show varied levels of day to day functioning from 2016 onwards. There is continued fear of driving and unease being a passenger in a car. There is lack of self-care from someone who, pre-accident, took pride in her appearance, but there are also efforts to cook for her children and make sure they get out to school fed, and on time. It is beyond the scope of this enquiry to make a definitive finding on whether the evidence supports a finding of entitlement to a NEB within 104 weeks, so I will limit my comments to saying there is evidence which may be supportive as well as evidence which may negate entitlement.
Limitation and Tomec Conclusion
48With respect to the application of the two-year limitation period and the Tomec discoverability principle, I find that there was a clear and unequivocal denial on July 2, 2014. The subsequent correspondence between counsel and Certas in October and November 2014, leading to the November 4, 2014 OCF-9 did not create a “equivocal sense of indeterminacy” or stay the running of the limitation period.
49Ms. Allen applied for and was denied entitlement to a NEB in mid-summer 2014. At that point she was advised of her appeal rights. There was nothing else she needed to discover to advance a claim for a NEB. The discoverability principle in Tomec does not apply in this case.
50Ms. Allen submits that I should exercise my discretion under s. 7 of the LAT Act. That section states:
Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of 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.
51The onus, then, is on Ms. Allen to demonstrate that “there are reasonable grounds for applying for the extension and for granting relief.” The courts have provided guidance on the application of this section, most notably in the oft-cited test in Manuel v. Registrar, 2012 ONSC 1492:
The LAT cited the relevant sections of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, and Frey v. MacDonald, stating that it would consider the following factors as constituting “reasonable grounds” for assessing this request for an extension of time in which to file an appeal:
The existence of a bona fide intention to appeal;
The length of the delay;
Prejudice to the other party; and,
The merits of the appeal.
52The Manuel test is not a checklist where failure to satisfy one of the elements results in failure to establish reasonable grounds. Rather the test sets out factors to be weighed in determining the justice of the case. Weakness in one area may be offset by strength in another area. The approach is to consider each element individually and then weigh each element, together with any other material factors, to determine whether I should exercise my discretion in Ms. Allen’s favour.
53The exercise of the s. 7 discretion should not be undertaken lightly. The Legislature has made it clear, by establishing the two-year limitation period, that the overriding legislative policy is to have no-fault insurance claims advance relatively expeditiously. A person who may have a claim for benefits may not sit on the claim indefinitely and then invoke s. 7 to avoid the consequences of the expiry of the limitation period. To do so successfully would render the clear policy statement of the Legislature nugatory. The s. 7 discretion, in my view, is to be reserved for exceptional circumstances.
54In considering the first arm of the test, the bona fide intention to appeal, there is no evidence to support such an intention. According to Ms. Allen, she first became aware of her entitlement to a “weekly cheque” when the issue was raised by Ms. Nadeau in 2018 or 2019. It flows from this evidence that she had no intention to prosecute an appeal of the July 2, 2014 denial of the benefit during the two-year limitation period.
55The length of the delay in this case is a major factor. The limitation period expired on or about July 2, 2016. Her application to the Tribunal was received on December 20, 2019, approximately 3½ years late.
56It flows from the length of the delay, that Certas has suffered significant prejudice. Ms. Allen submits that this is a case which can be completely resolved based on the medical record and thus, there is no loss of evidence. I do not accept this submission. Under the Schedule, Certas is entitled to take a cynical view of any claim for benefits. That concept is codified in s. 44 which gives Certas the right to have Ms. Allen independently assessed by its own healthcare professionals. The delay has completely denied Certas its s. 44 rights such that it has no independent evidence of Ms. Allen’s condition within 104 weeks of the accident, and whether that condition justified her claim for a NEB.
57I have covered the merits of the case above. The hurdle is not high at this stage of the enquiry. There is evidence, which, if accepted, may support Ms. Allen’s claim. In my view the evidence is thin, as contemporaneous reports focus on her abilities and do not consider the NEB test, but I would not say she has no chance of success.
58Synthesizing the above factors, I find the justice of the case does not support an exercise of my discretion. The lengthy delay has seriously prejudiced Certas’s ability to assess Ms. Allen’s claim such that it would work an injustice on Certas were this matter to proceed.
59Ms. Allen has not pointed to any special circumstances that would justify extending the two-year limitation period established by the Legislature. The sole ground she advances is the failure of her counsel to advise her properly and advance her claim. The remedy for that failure, if there was such a failure, lies elsewhere.
ORDER
60Ms. Allen’s appeal to this Tribunal from Certas’s denial of her entitlement to a NEB is dismissed as it was brought beyond the two-year limitation period in the Act and Schedule.
Released: November 2, 2021
D. Gregory Flude, Vice-Chair