Shih v. Economical Insurance, 2021 CanLII 18943

Shih v. Economical Insurance

Citation: Shih v. Economical Insurance, 2021 ONLAT 20-005669/AABS

Released Date: 02/03/2021

Tribunal File Number: 20-005669/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits.

Between:

Chen Chen Shih

Applicant

and

Economical Insurance

Respondent

MOTION DECISION

ADJUDICATOR:

Craig Mazerolle

APPEARANCES:

Representative for the Applicant:

Daniaal Sibtain, Counsel

Representative for the Respondent:

Leah Dick, Counsel

Held in Writing:

January 6, 2021

OVERVIEW

1The applicant was injured in a motor vehicle accident on April 20, 2017. To assist in her recovery, she sought benefits from the respondent, pursuant to the Statutory Accident Benefits Schedule.¹ When the respondent refused to pay for some of these requests, the applicant applied to the Tribunal to dispute these denials on May 8, 2020. The disputed issues in this application included a request for an income replacement benefit (“IRB”) and three treatment plans.

2By way of a Notice of Motion (dated November 30, 2020), the respondent raised a limitation defence in accordance with s. 56 of the Schedule. Briefly, it alleged that the applicant failed to challenge the denial of the IRB and two of the three treatment plans within the two-year limitation period (i.e., the treatment plans dated September 27, 2017 in the amount of $1,927.55, and November 22, 2017 in the amount of $2,712.80).

3For the reasons to follow, I find that the applicant is entitled to proceed with her application for an IRB, but not the two treatment plans.

ANALYSIS

4Section 56 of the Schedule requires an applicant to commence a proceeding “in respect of a benefit… within two years after the insurer’s refusal to pay the amount claimed.”

5There is agreement between the parties that the IRB was denied on April 17, 2018, and that the treatment plan dated November 22, 2017 was denied on March 1, 2018. However, the respondent submitted that the treatment plan dated September 27, 2017 was denied on January 9, 2018, while the applicant cited the later date of February 22, 2018.

6Regardless, both parties accept that more than two years have passed between the three denial dates and the filing of the application on May 8, 2020. However, both parties have differing positions on whether the statutory bar under s. 56 applies.

Parties’ Positions

7The respondent argued that it provided clear and unequivocal denials of these benefits over two years before the applicant applied to the Tribunal. As such, the applicant is not entitled to pursue these parts of her application.

8In response, the applicant argued that she can continue with her request for an IRB due to the effect of s. 2 of Limitation Periods,² a regulation enacted under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020:³

Any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any period of time within which any step must be taken in any proceeding in Ontario, including any intended proceeding, shall, subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding, be suspended, and the suspension shall be retroactive to Monday, March 16, 2020.⁴

9Briefly, since the limitation period for the IRB was frozen before the two-year mark following the respondent’s denial, the applicant argues that she is in compliance with s. 56.

10Even with this freeze, the application was still filed after the two-year mark for the denials of the two treatment plans. Therefore, to allow her to continue disputing these plans, the applicant asked the Tribunal to use the discretion afforded under s. 7 of the Licence Appeal Tribunal Act, 1999:⁵

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.

11Relying on the Tribunal’s decisions in A.F. v. North Blenheim Mutual Insurance Company⁶ and S.S. v. RSA Insurance,⁷ which concluded that s. 7 allows the Tribunal to remedy violations of the Schedule’s two-year limitation period, the applicant then went on to argue that the four factors enumerated in North Blenheim are met in this case.

12First, there was a bona fide intention to appeal these denials within the appropriate timeline, but there was a clerical error that led to the application not being filed with the Tribunal until May 2020. Evidence of this clerical error is a Tribunal application form dated November 6, 2019.

13Second, the length of the delay was not significant, as (if one accepts the applicant’s timeline) the longest gap between a denial and the filing is less than three months. Therefore, considering the adjudicator in 17-005601 v. Aviva Insurance Company of Canada⁸ did not find a delay of over three months to be excessive for the purposes of s. 7, the present delays are reasonable.

14Then, when considering the prejudice to the respondent, the applicant submitted that it is facing effectively no prejudice, due to the fact that it has always possessed all of the relevant medical information needed to understand her case.

15Finally, the Tribunal must then consider whether the applicant has a reasonable chance of success on the merits of the case. According to the applicant, the Tribunal has previously answered this factor in the affirmative when an applicant intends on challenging the substance of an insurer’s assessments.⁹

16In its reply, the respondent first challenged the applicant’s use of the Limitations Regulation by citing M.K. v. T.D. General Insurance Company.¹⁰ According to the respondent, this decision stands for the proposition that the Limitations Regulation is only engaged when a party is able to establish that “the COVID-19 Pandemic contributed or caused the delay in filing.” Without this evidence, the applicant cannot rely on the Limitations Regulation.

17Then, regarding the treatment plans, the respondent argued that the applicant’s position on s. 7 of the LAT Act is not supported by recent case law. That is, competing decisions about s. 7 has been moving decidedly toward the view that this discretionary power does not apply to late Tribunal applications, most notably Adjudicator Neilson’s ruling in S.S. v. Certas Home and Auto Insurance Company¹¹ in which she explicitly challenged the holding from North Blenheim.

18In the alternative, this discretionary remedy should not be used in this dispute. The applicant cannot demonstrate any exceptional circumstances to justify the late filing, and there is no affidavit to support her account of a clerical error causing the delay.

Income Replacement Benefit

19I find that the applicant is entitled to pursue her claim for an IRB as the limitation period (started by the April 17, 2018 denial) was suspended before the two-year mark due to the Limitations Regulation.

20In reaching this finding, I note that I do not find the adjudicator’s reasoning in M.K. to be persuasive. Specifically, at paragraphs 11 and 12, the adjudicator accepted the arguments of this earlier respondent as follows:

On April 28, 2020, counsel for the applicant requested the extension based on the pandemic but did not provide any supporting documents or evidence that the pandemic had in any way contributed or caused the delay. TD submits that reliance on the state of emergency order requires some form of evidence that the pandemic affected the M.K.'s ability to request reconsideration within the limitation period. I agree.

A request under the Emergency Management and Civil Protection Act must be made with documentation or evidence to support that request. Such a request cannot be granted without evidence or reasons for the request. Based on the evidence, M.K. has not satisfied this requirement. M.K. has not pointed me to any evidence or submissions that contradicts TD’s claim.¹²

21Though the adjudicator stated that he could not apply the Limitations Regulation without evidence that the pandemic “contributed or caused” to the late filing at issue, I see no support for this interpretation. As cited above, s. 2 of the Limitations Regulation is clear that any and all requirements to act within a certain period of timeframe within the province of Ontario were suspended as of March 16, 2020. This clear language provides no indication that there is a need to establish the pandemic “contributed or caused” the late filing. Rather, the freeze is automatic, and it was in place at the time the applicant filed her application with the Tribunal.

22What is more, putting this evidentiary burden on a party seeking to avail itself of this limitation freeze would be at odds with the clear purpose of this emergency regulation. Almost a year into the pandemic, it is well-accepted that the legal profession has been dramatically and negatively impacted by the COVID-19 pandemic. One of the most telling signs of this strain has been legal practitioners finding it more difficult (and, in extreme cases, impossible) to meet deadlines set out in legislation, Tribunal orders, etc. Relieving this difficulty is clearly the purpose behind the Limitations Regulation. Therefore, requiring these already stretched legal practitioners to take on an additional, evidentiary burden to access this remedy would not be in the spirit of the regulation.

23In sum, the applicant is able to continue pursuing her request for an IRB.

24The first determination I must make is whether the Tribunal does, in fact, have the authority to extend the limitation period under s. 56 of the Schedule by way of s. 7 of the LAT Act. This point has been debated at the Tribunal, with these competing positions laid out in two oft-cited cases: i.e., A.F. v. North Blenheim Mutual Insurance Company and S.S. Certas Home and Auto Insurance Company.

25Briefly, Executive Chair Lamoureux found in North Blenheim that—since no exclusionary amendments were added to s. 7 when the Tribunal was given jurisdiction over the Schedule—the Legislature must have meant for this pre-existing power to apply to the Tribunal’s new jurisdiction:

While s. 7 of the LAT Act predates the transfer of automobile accident benefit disputes from FSCO to the Tribunal, it was open to the legislature to amend the LAT Act to exclude Insurance Act matters from the application of s. 7 of the LAT Act. In fact, the legislature did amend other provisions of the LAT Act when it transferred these matters from FSCO to the Tribunal. Subsection 11(6) of the LAT Act was added to specify that an appeal from the Tribunal to the Divisional Court on an Insurance Act matter may be made on a question of law only… By contrast, the legislature chose not to amend s. 7 of the LAT Act to carve out an exception for Insurance Act proceedings. As the legislature is presumed to know the law and not make mistakes (Sullivan on the Construction of Statutes, 5th ed., p. 245), I must assume that the legislature directed its attention to s. 7 of the LAT Act and made an intentional decision not to create an exception for Insurance Act proceedings, as it did with respect to Insurance Act related matters in s. 11(6).¹³

26Adjudicator Neilson departed from this interpretation in Certas. After contrasting the relatively narrow language of s. 7 against the broader language used in s. 3 of the LAT Act, she concluded that the term “under any Act” in s. 7 must be read as an exclusion of regulations, including the Schedule.¹⁴ Adjudicator Neilson also noted that an interpretation of “any Act” that included “regulations” would run counter to s. 87 of the Legislation Act, 2006,¹⁵ which delineates between an “Act” and a “regulation.”¹⁶

27What I find striking about Certas is how the interpretative tool used to analyze the LAT Act in North Blenheim (i.e., the assumption that the Legislature is aware of the effects of its linguistic choices) not only supports the analysis in Certas, but this later decision uses this interpretative tool in a more convincing manner.

28Once again, the assumption made in North Blenheim is that the Legislature could have amended the scope of s. 7 to exclude the Schedule, but—in deciding not to—it must have intended for this remedy to apply. However, this analysis cuts both ways. The Legislature could have also concluded that there was no need to amend s. 7, as it was obvious that a regulation like the Schedule would not be covered by this remedy.

29If s. 7 is read alone, both interpretations are equally compelling. However, as is now well-established in Canadian law, a statutory provision must be understood in the broader context and purpose of its overall legislation.

30With this principle in mind, the interpretation of the Legislature’s intention in Certas is, therefore, more compelling, as it contrasts the broader language used in s. 3 to s. 7. In this way, this analysis establishes that the Legislature could have expanded s. 7 to capture regulations, but it chose not to. Put another way, the Legislature’s decision not to amend s. 7 during the transfer of the Schedule to the Tribunal was a recognition that the intended non-application of this remedy was already in place, and so there was no need to change this provision.

31The applicant also cited the more recent decision of RSA Insurance to challenge Certas. In addition to citing North Blenheim as a “binding” decision, Adjudicator Boyce concluded in RSA Insurance that the reference to “under any Act” in s. 7 must include the Schedule, as it is a regulation made pursuant to an Act, i.e., the Insurance Act.¹⁷ Disputes under the Schedule are also launched pursuant to the jurisdiction provided to the Tribunal through s. 280 of the Insurance Act:

While I understand RSA’s (or all insurers’) preference for a strict reading of s. 7, I remain of the view that since the two-year limitation period is contained within a regulation, being the Schedule, which in turn is enacted under the Insurance Act, that s. 7 of the LAT Act provides for the discretion to extend the limitation period because applications under s. 280(2) are “notices requiring a hearing.”¹⁸

32I do not accept this line of reasoning, as this interpretation is undermined by the language in s. 6(6) of the LAT Act. Again, as opposed to the use of the narrower term “under any Act” in s. 7, s. 6(6) uses broader language to delineate the scope of this provision: [emphasis added]:

A rule made under this section does not prevail over any provision of this or any other Act, or a regulation made under this or any other Act, that sets out requirements for procedures for hearings held by the Tribunal or rights of parties to the hearings.

33Therefore, if the Legislature intended the Schedule to be captured under s. 7 by way of the Insurance Act, an amendment could have been made to use the more expansive language of s. 6(6).

34In sum, I am satisfied that I do not have the authority to use s. 7 to extend the limitation periods for the two treatment plans that were filed following the two-year mark. The applicant is, therefore, unable to pursue her claims for these two treatment plans.

ORDER

35I find that the applicant is entitled to proceed with her application for an IRB.

36The applicant is not entitled to pursue the claims for two of the three disputed treatment plans (i.e., the treatment plans dated September 27, 2017 and November 22, 2017).

Footnotes

1. 1Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).
2. 2O. Reg. 73/20 (the “Limitations Regulation”).
3. 3S.O. 2020, c. 17.
4. 4This limitations period freeze was revoked on September 14, 2020.
5. 5S.O. 1999, c. 12, Sch. G (the “LAT Act”).
6. 62017 CanLII 87546 (ON LAT) (“North Blenheim”).
7. 72020 CanLII 45515 (ON LAT) (“RSA Insurance”).
8. 82018 CanLII 112123 (ON LAT).
9. 918-002989 v. RSA Insurance Company of Canada, 2019 CanLII 76846 (ON LAT), at para. 27.
10. 102020 CanLII 80294 (ON LAT) (“M.K.”).
11. 112016 CanLII 153125 (ON LAT) (“Certas”). Though the citation is “2016 CanLII 153125”, the decision is from 2019, i.e., dated September 5, 2019.
12. 12Though the adjudicator references the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, he is, ultimately, referring to the Limitations Regulation.
13. 13North Blenheim at para. 19.
14. 14Certas at para. 13.
15. 15S.O. 2006, c. 21, Sch. F.
16. 16Certas at paras. 14.
17. 17R.S.O. 1990, c. I.8 (the “Insurance Act”).
18. 18RSA Insurance at para. 15.```