V.M.L. v. Aviva General Insurance Company, 2021 CanLII 28696

Citation: V.M.L. v. Aviva General Insurance Company 2021 ONLAT 18-001713/AABS - R

RECONSIDERATION DECISION

Before: Ian Maedel, Vice Chair

Date of Order: 03/22/2021

Tribunal File Number: 18-001713/AABS

Case Name: V.M.L. v. Aviva General Insurance Company

Written Submissions by:

For the Applicant: Nancy Young and Sandi J. Smith, Counsel

For the Respondent: Leanne W. Zabudsky, Counsel

OVERVIEW

1This Request for Reconsideration was filed by the applicant. It arises out of a decision in which the Tribunal found that the applicant was statue-barred from proceeding with her appeal of the respondent’s refusal to pay an income replacement benefit (“IRB”) and the Tribunal’s decision not to extend the limitation period by way of section 7 of the Licence Appeal Tribunal Act¹ (“LAT Act”).

2Adjudicator Johal’s decision dated July 2, 2019 granted the applicant’s reconsideration request in part. The decision ordered the parties to provide written submissions on the issue of section 7 of the LAT Act to be heard in-writing before Adjudicator Johal.

3The applicant provided submissions on July 22, 2019 which included an Affidavit of Michelle Arzaga, a lawyer in the applicant’s counsel’s office. On July 30, 2019, the respondent filed a Notice of Motion seeking to exclude the affidavit evidence as it was past the production deadline for the preliminary issue hearing, pursuant to the Case Conference Order dated July 19, 2018.

4The respondent’s motion was heard on September 24, 2019. The Tribunal ordered that the motion to exclude the affidavit evidence be heard before Adjudicator Johal, as part of the reconsideration on the issue of section 7 of the LAT Act, and allowed the parties to submit additional reply submissions.

5Adjudicator Johal’s Reconsideration Decision was released February 11, 2020. Unfortunately, Adjudicator Johal failed to determine the admissibility of Ms. Arzaga’s Affidavit as part of his decision.

6At a Case Conference on March 5, 2020, Associate Chair Jovanovic set aside Adjudicator Johal’s Reconsideration Decision and assigned the respondent’s motion to exclude the affidavit evidence to myself.

7In a Motion Order dated July 7, 2020, I denied the respondent’s motion to set aside Ms. Arzaga’s Affidavit. Dates were imposed for cross-examination of Ms. Arzaga on her Affidavit. Supplementary reconsideration submission dates were also imposed in my Motion Order.

RESULT

8The applicant is permitted to proceed with her application to dispute the denial of her Income Replacement Benefit (“IRB”) based on section 7 of the LAT Act.

ANALYSIS

Section 7 of the LAT Act

9In determining whether to grant an extension of time under s. 7 of the LAT Act, the Tribunal weighs the following four factors in order to determine whether the justice of the case requires that the extension be granted:

1. The existence of a bona fide intention to appeal within the appeal period;
2. The length of the delay;
3. Prejudice to the other party; and,
4. The merits of the appeal.

10This test was approved by the Divisional Court in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002.² Notably, it is also the same test that courts use to determine whether to grant an extension of time to file an appeal: see Howard v. Martin at para. 26.³

11The four factors are not strict elements that must each be met in order to grant an extension of time. Rather, they are a guide to assist in determining the justice of the case. Whether to grant an extension of time depends on the specific facts of each case.

12The respondent submits that section 7 of the LAT Act does not apply to the Schedule.⁴ The respondent relies on the decision in S.S. v. Certas Home and Auto Insurance Company⁵ and Landa v. The Dominion of Canada General Insurance Company⁶ for its submissions that it is not within the Tribunal’s jurisdiction to extend the limitation period to dispute entitlement to automobile accident benefits under section 7 of the LAT Act.

13Both S.S. and Certas and Landa and Dominion are in direct contrast to the reconsideration decision of the Executive Chair, Linda P. Lamoureux in A.F. v North Blenheim Mutual Insurance Company⁷ who found that section 7 of the LAT Act applies to the Tribunal for an extension of the limitation period to dispute entitlement to automobile accident benefits. The Executive Chair analyzed the legislator’s intent noting that section 7 permits an extension of a limitation period “despite any limitation of time fixed by or under any Act”. The Executive Chair concluded that the legislators could have amended this section of the LAT Act, but did not do so, despite amending other sections of it.⁸

14In S.S. v. Certas the Adjudicator’s finding was that section 7 of the LAT Act does not apply to matters under the Schedule. According to that decision, the Adjudicator’s opinion was that the Executive Chair in North Blenheim was not asked to consider the definition of an “Act” and “Regulation” and whether the words “under any Act” in section 7 does not mean a Regulation.

15Using the modern approach to statutory interpretation, I do not find the words “under any Act” in section 7 differentiate between an Act and a Regulation as the respondent submits. In my view, the correct interpretation includes the application of section 7 to both the Insurance Act and Regulation 34/10 otherwise known as the Statutory Accident Benefits Schedule – Effective September 1, 2010 or simply the Schedule.

16Utilizing a narrow statutory approach by parsing out the application of section 7 to the Insurance Act, but not to section 56 of the Schedule would lead to an absurdity. This would also be contrary to the remedial and consumer protection nature of the Schedule as intended by the legislature and interpreted by the courts in Smith v. Cooperators⁹ and Tomec v. Economical.¹⁰

17I am not bound by another member’s decision; however I find Executive Chair Lamoureux’s reasoning in North Blenheim persuasive. Specifically, that the legislature is presumed to know the law and not make mistakes (Sullivan on the Construction of Statutes, 5^th ed., p. 245)¹¹. Section 7 of the LAT Act was not repealed or amended when the Tribunal assumed jurisdiction for matters under the Schedule as of April 1, 2016 and, as a result, I agree with the Executive Chair that section 7 of the LAT Act applies

Did the Applicant Have a Bona Fide Intention to Appeal Within the Appeal Period?

18The applicant submits it was her intention to file an appeal to dispute the denial of the IRB. However, the delay in filing her appeal was not due to any fault of the applicant. A paralegal at the firm failed to follow her instructions and did not advance the appeal when instructed to do so. Counsel failed to ensure the application was filed in a timely manner as per her instructions, but this should not prejudice the applicant who maintained a bona fide intention to dispute the denial of the IRB.

19The respondent submits there is no evidence of a bona fide intention, as Ms. Arzaga’s evidence is based largely on hearsay, and no documentary evidence has been provided to support any claim of this ‘error’ by the paralegal in question. The respondent further submits this argument was never made until sixteen months after the respondent raised the limitation defence, and only after Adjudicator Johal requested submissions pursuant to section 7 of the LAT Act.

20Although there is no documentary evidence regarding the filing error at applicant counsel’s office, another lawyer has provided a sworn affidavit indicating her personal knowledge of the matter. While the cross-examination revealed that some of her evidence was not based on first-hand knowledge, I do place weight upon her evidence that she personally instructed the paralegal to file the Application on January 18, 2018, or within the limitation period. Unfortunately, the Application was not filed as per counsel’s instructions and the limitation period lapsed prior to the filing date in February 2018.

21I am persuaded there was an error of the firm and not as a result of any fault attributed to the applicant. In any event, all four factors do not have to be satisfied, as long as the justice of the case requires granting the extension. I find this to be a plausible explanation to show an intent to appeal within the appeal period and that this factor is in support of the applicant’s position.

Length of the Delay

22The length of the delay is 13 business days. A delay of this kind would not, in my opinion, be considered a significant delay by any means. Although not the sole determinate, I also consider this factor is in support of the applicant’s position.

Prejudice to the Respondent

23The applicant submits there is no prejudice to the respondent in the expiration of a few days.

24The respondent has not provided any evidence of prejudice wrought as a result of the 13-business-day delay in disputing the denial. There have been no claims of documentary issues, or an inability to locate key documents as a result of a lengthy delay. Instead, the respondent cites the applicant’s “tactical decision” not to raise the paralegal’s error to support a claim of bona fides until late in the reconsideration process. I am not persuaded by this submission, nor by the bald assertions regarding the alleged risk to the administration of justice in this case.

25Given the lack of evidence provided by the respondent, I do not consider a delay of 13 business days prejudicial to the respondent’s ability to defend against the applicant’s claim. As a result, I find that this factor weighs in favour of the applicant.

Merits of the Appeal

26The fourth factor does not require an in-depth analysis of the merits of the appeal and I make no finding on the applicant’s entitlement to the IRB claimed. However, based on the submissions that the applicant has been approved to receive CPP Disability Benefits, there may be some merit in her appeal that warrants the applicant having an opportunity to dispute the denial.

CONCLUSION AND ORDER

27As stated above, all four factors do not need to be satisfied as long as the justice of the case requires granting of the extension of the limitation period under s. 7 of the LAT Act. I find that there is no prejudice to the respondent in a 13-business day delay in filing the appeal Application. As a result of the combination of all four factors, I find that the justice of the case warrants an extension of the limitation period to allow the applicant the opportunity to dispute the respondent’s denial of her IRB claim.

28As a result of this decision, a case conference shall be scheduled by the Tribunal within 60 days. The case conference shall address the substantive entitlement to the income replacement benefits at issue.

Ian Maedel,

Vice Chair

Tribunals Ontario - Safety, Licensing Appeals and Standards Division

Footnotes

1. 1S.O. 1999, c. 12, Sched. G.
2. 2Manuel v. Registrar, 2012 ONSC 1492.
3. 3Howard v Martin, 2014 ONCA 309.
4. 4Statutory Accident Benefits Schedule – Effective September 1, 2010 O.Reg. 34/10 (“Schedule”).
5. 5[S.S.] v. Certas Home and Auto Insurance Company, 2016 CanLII 153125 (ON LAT) “S.S. and Certas”
6. 6Landa v. The Dominion of Canada General Insurance Company, 2020 CanLII 87954 (ON LAT) 19- “Landa and Dominion”.
7. 7A.F. v. North Blenheim Mutual Insurance Company, 2017 CanLII 87546 (ON LAT) (Reconsideration Decision) “North Blenheim”
8. 8A.O. v Unifund Assurance Company 2019 CanLII 58501 (ON LAT) at para. 12 citing 17-007103 v. Unifund Assurance Company, 2019 CanLII 40291 (ON LAT) (Reconsideration Decision) at para. 28.
9. 9Smith v. Co-operators, 2002 SCC 30 at para. 11.
10. 10Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 at para. 42.
11. 11North Blenheim at paragraph 19.