Citation: Bagla v. TD Insurance Meloche Monnex, 2021 ONLAT 20-004158/AABS and 20-004159–M

Licence Appeal Tribunal File Numbers: 20-004158/AABS and 20-004159/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Kailash Bagla

Applicant

and

TD Insurance Meloche Monnex

Respondent

MOTION DECISION

ADJUDICATOR:

Ian Maedel, Vice Chair

APPEARANCES:

For the Applicant:

Stanley Razenberg, Counsel

Adam Huff, Counsel for LAWPRO

For the Respondent:

Geoffrey Keating, Counsel

Motion Hearing heard via teleconference on:

September 10, September 24, and October 22, 2021

BACKGROUND

1The applicant was injured in automobile accidents on March 3, 2014 and May 25, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

2The applicant was denied certain benefits and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

3The substantive issues in dispute include a claim for a catastrophic impairment determination, non-earner benefits, attendant care benefits, an award, and treatment plans for physiotherapy, assistive devices, prescription medication, and interest.

4The respondent raised a preliminary issue of whether the applicant’s claim for attendant care benefits was limitation-barred by s. 56 of the Schedule.

5A Preliminary Issue Decision was rendered by Vice Chair Boyce on April 29, 2021 which barred both applications for attendant care benefits, pursuant to s. 56 of the Schedule.

MOTION

6On August 13, 2021, the applicant filed a Notice of Motion requesting that the Tribunal:

i. Extend the time limit to seek reconsideration of the preliminary issue decision, dated April 29, 2021.

PARTIES’ POSITIONS

7The applicant submits that a day prior to the deadline for preliminary issue submissions, former counsel for the applicant unilaterally removed themselves from the record. Unbeknownst to the applicant, no preliminary issue submissions were filed on his behalf. The written preliminary hearing proceeded without any applicant submissions. Current counsel was retained on July 26, 2021, and he immediately took steps to contest the preliminary issue decision. The applicant submits he had a bona fide intention to contest the respondent’s position throughout this application. However, the applicant does acknowledge the three-month delay in contesting the preliminary issue decision, due to his lack of knowledge of the preliminary issue decision. The applicant also lacked an understanding of the adjudicative/reconsideration process, and he assumed that previous counsel had provided preliminary issue submissions. The applicant submits the reconsideration request has merit, and there is no prejudice to the insurer.

8Counsel for LAWPRO submits there was a bona fide intention to appeal within the 21-day period, pursuant to Rule 18.1 of the Tribunal’s Common Rules of Practice & Procedure (“Rules”). That is, the applicant has provided uncontradicted affidavit evidence that he always intended to challenge the decision, even though he was unaware of its release or the consequences of the decision until July 2021. The applicant relied upon counsel to provide submissions, and he did not understand the nature of the limitation period, nor would he have known where to begin in the absence of counsel. This is a matter of procedural fairness, as the applicant has been deprived of any opportunity to effectively participate in the preliminary issue hearing.

9The respondent submits the applicant has not demonstrated a bona fide intention to reconsider the decision within the 21-day period specified in Rule 18 of the Rules. The intention arose only after current applicant counsel was retained on July 26, 2021. The respondent submits this matter is distinguishable from the tests outlined in Tomec¹ and Haines², as the applicant was denied on the basis of the test for attendant care benefits, not denied the benefit prior to eligibility, and was not deemed catastrophically impaired. Thus, this reconsideration lacks merit and should thus be dismissed.

RESULT

10The applicant’s motion is granted. The deadline to provide a Request for Reconsideration shall be extended until January 7, 2022.

11This extension will permit the applicant to provide a Request for Reconsideration (and any supporting submissions or evidence), pursuant to Rule 18 of the Tribunal Rules.

12This matter turns on procedural fairness, pursuant to Rule 3.1 of the Tribunal’s Rules. The day prior to the applicant’s written submission deadline of February 19, 2021, the applicant’s former counsel removed herself as counsel for the applicant. No written submissions were provided on the applicant’s behalf. The respondent provided written submissions and the matter was subsequently heard by Vice Chair Boyce, who barred the claims for attendant care benefits.

13The applicant is currently 74 years old, and he relied on former counsel to file the written preliminary submissions. He subsequently underwent eye surgery in the spring of 2021. I accept he was unaware of the preliminary issue decision, as well as the gravity of this decision, until new counsel was retained in July 2021.

14I also accept the applicant maintained a bona fide intention to appeal the denial of benefits in this Tribunal application between the period between February 2021 to July 2021. This is not a matter where the applicant provided submissions that were unpersuasive, or counsel was found to be ineffectual. This is a matter where the applicant failed to provide any preliminary issue submissions, despite a demonstrated intention to contest the preliminary issues raised by the respondent at the case conference. I am otherwise unpersuaded by the respondent’s argument that this motion should be dismissed because the applicant failed to demonstrate a bona fide intention to reconsider this matter within the 21-day period required by the Rules. Clearly the applicant relied upon previous counsel to provide submissions, and—when he eventually learned of the preliminary decision barring his application for attendant care—he took immediate steps to retain counsel in July 2021.

15The Tribunal is mandated to ensure a procedurally fair process and permit effective participation by all parties. The Tribunal also strives to ensure that decisions are based on the merits of the dispute. The applicant has provided no preliminary submissions (through no fault of his own) and a preliminary issue decision was been rendered without his participation. This lack of participation goes directly to the heart of procedural fairness as per Rule 3.1(a) of the Rules. If I were to accept the respondent’s arguments, the applicant would be denied any ability to dispute the preliminary issue decision pursuant to Rule 18.

16This could result in a chilling effect for applicants, who have otherwise demonstrated a bona fide intention to appeal, but were somehow denied their procedural rights based on a technicality (or some other reason outside of their control). In my view, this raises a real access to justice issue and is contrary to the consumer protection nature of the Schedule. This is precisely why the Rules shall be interpreted liberally in this case to ensure the applicant has the ability to participate in the reconsideration process linked to the preliminary issues in dispute.

17I would also add that, other than the delay of this application between April and December 2021, as well as the cost of responding to the Request for Reconsideration, I can see little prejudice wrought to the respondent at this juncture. There has otherwise been no lapse in the carriage of this matter, as respondent counsel remains retained to address this application.

18I am mindful that this is a motion simply to extend the period to file a Request for a Reconsideration. The merits of the reconsideration shall be addressed in the applicant’s Request for Reconsideration. The applicant will be required to address the specific criteria for reconsideration pursuant to Rule 18.2. If the request is approved, the reconsideration adjudicator shall address the merits of the reconsideration. Otherwise, I am not prepared to address the merits of this reconsideration at this juncture.

19Thus, after reviewing the totality of the submissions and caselaw, I am persuaded that the deadline for the applicant to provide a Request for Reconsideration pursuant to Rule 18 of the Rules shall be extended to January 7, 2022.

OTHER PROCEDURAL MATTERS

20If the parties resolve the issue(s) in dispute prior to the hearing, the applicant shall immediately advise the Tribunal in writing.

Footnotes

1. 1Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882.
2. 2Haines v. Aviva Insurance Company of Canada, 2021 CanLII 53157 (ON LAT).