Licence Appeal Tribunal File Number: 19-003270/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:
K. D.
Applicant
and
Certas Direct Insurance Company
Respondent
MOTION ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Colin R. Dubreau
For the Respondent:
Brian M. Yung
Motion heard in writing
BACKGROUND
1The applicant was injured in an automobile accident on December 1, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”).
2The applicant applied for a non-earner benefit (“NEB”), which was denied by the respondent. The applicant disagreed with this denial and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal).
3The respondent raised a preliminary limitation issue at the case conference and as a result, this written preliminary issue hearing was scheduled.
PRELIMINARY ISSUE
4Is the applicant statute barred from pursuing her claim for non-earner benefits in the amount of $185 per week for the period of June 1, 2016, to date and ongoing to the Tribunal due to the limitation period expiry, in accordance with section 56 of the Schedule?
RESULT
5I find that the applicant may proceed with her application before the Tribunal.
ANALYSIS
6Section 56 of the Schedule provides that an application to dispute a denial of a benefit shall be commenced within two years of the insurer’s refusal to pay. It is not contested that the application was filed beyond the general two-year limitation period governing applications to the Tribunal. In fact, the applicant’s counsel conceded that the application was filed late. In the submission, it was stated that “[KD], through her lawyers, commenced this Application on March 21, 2019. March 21, 2019 is 9 months and 26 days beyond the presumptive two-year limitation period to appeal the first NEB denial of May 30, 2016.”
7As such, I must turn my mind to whether the Tribunal should exercise its discretion pursuant to s. 7 of the Licence Appeal Tribunal Act1 (“LAT Act”) and grant the applicant an extension to proceed with her application.
Section 7 of the Licence Appeal Tribunal Act
8Section 7 of the LAT Act affords the Tribunal statutory discretion to extend the time for commencing a proceeding in certain circumstances if it is satisfied that there are reasonable grounds for applying for the extension and for granting relief. There are four factors that the Tribunal weighs in determining whether the justice of the case requires that an extension be granted:
i) the existence of a bona fide intention to appeal within the appeal period;
ii) the length of the delay;
iii) prejudice to the other party; and
iv) the merits of the appeal.
9These four factors, which are referred to as the “Manuel 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. The onus is on the applicant to satisfy me that the justice of the case favours an extension of the time to appeal.
Bona fide intention to appeal within the limitation
10The applicant submitted that her bona fide intention to appeal is clear. She had disability certificates repeatedly submitted on her behalf stating that she qualified for the NEB. Moreover, she is relying on her affidavit dated July 22, 2022 at paragraphs 14 to 16, which show that she believed that she met the NEB test, she disagreed with the denials and that she always intended to appeal. She also stated that she relied on her counsel.
11It was submitted that:
The Applicant has evidenced her bona fide intention to appeal, and any procedural misstep by failing to appeal the denial of the first Disability Certificate ought not be visited upon the [sic] [KD]. The principle that applies here is that “the sins of the lawyer should not be visited upon the client”. The phrase has been applied most commonly in cases of delay, and adjournment.”
12The respondent submitted that that the unprovoked submission of an updated OCF-3 does not connote an intention to appeal a denial. The applicant and her legal representative did not communicate an intention to appeal the NEB denial during the two-year period from May 30, 2016 to May 30, 2018. Moreover, there is no evidence that supports the fact that the applicant believed that by submitting another OCF-3, she was appealing the NEB denial.
13Furthermore, she was represented by legal counsel who knew or ought to have known the proper procedure to appeal the NEB denial. Nor did she or her legal representative respond to the respondent’s reiterations of the May 30, 2016 NEB denial until she submitted her application on March 21, 2019.
14What I infer from the submissions is that there appears that there was some sort of miscommunication between the applicant and her counsel and as a result, an error ensued. I accept her counsel’s admission on this point and the applicant’s statement that she relied on her counsel’s advice. Although she did not follow the proper procedure, the fact that she submitted multiple disability certificates lends weight to the fact that she intended to appeal the decision.
15The medical evidence supports that the applicant has a Class 4 marked impairment with respect to social functioning. An individual who has issues with social functioning cannot be expected to understand the nuances around legal processes. And nor should she be penalized for an error that is not of her doing. Therefore, I accept that the applicant had a bona fide intention to appeal the decision.
Length of the delay
16The respondent submitted that providing subsequent EOBs, which reiterate the May 30, 2016 denial of benefit, did not reset the clock on the limitation period. Moreover, the delay (close to ten months) in disputing the NEB denial represents a considerable amount of time during which she could have clarified her intention to appeal. It is the respondent’s position that the applicant has not provided a compelling explanation for the delay, and that the significant length of the delay does not warrant an extension.
17The applicant submitted that the delay in this present case is not egregious and is mitigated by the fact that the respondent conducted catastrophic impairment assessments throughout the period of delay. Furthermore, the delay is explainable because of the applicant’s decline in function and the question of when the applicant had reasonable evidence to support her NEB eligibility.
18It was submitted that:
While [KD]’s function was declining, it was not initially clear that she had enough objective evidence to appeal her NEB denial, however, that objective evidence would emerge over the course of her multidisciplinary catastrophic impairment assessments. The multidisciplinary catastrophic impairment assessments all took place within the 9 month and 26 day “period of delay” that the Applicant is requesting this Tribunal excuse. While the procedural misstep might be apparent in retrospect, given [KD]’s declining function, the period of delay is explained by a lag in [KD] obtaining an objective assessment that she met the NEB test.
19I agree with the applicant’s position. Based on my review of the evidence, I find that the respondent was actively involved in this file. The file was being adjusted during the time of the delay. In my view, the delay in question would not have blindsided the respondent. The length of delay is partly mitigated because the respondent conducted catastrophic impairment assessments throughout the period of delay.
Prejudice
20I find that the respondent would not be prejudiced by proceeding with the appeal.
The respondent stated that the Tribunal has routinely ruled that “without meaningful substance, an applicant’s boiler plate arguments of a brief delay ‘would always result in an extension, undermining the very purpose of limitation periods.” The respondent submitted that “by this incorrect logic, an insurer can never show prejudice arising out of a ‘short’ extension of the limitation period which is clearly not the intention or nature of the limitation period legislation.”
21The applicant submitted that the catastrophic impairment assessments took place within the period of delay. The respondent had every opportunity to assess the applicant’s eligibility on numerous occasions. The applicant stated that “this is not at all a case where a benefit is being appealed and the insurer has lost all ability to assess eligibility. This is a case where there is simply no prejudice resulting from a procedural irregularity on a clearly meritorious case.”
22The respondent’s submissions on this point are somewhat vague. The respondent has not proffered an explanation or evidence that demonstrates how it is prejudiced by the delay. Based on my review of the file, the respondent was actively involved in adjusting the file. The respondent has not provided any evidence that suggests that records or witnesses would not be available if this matter were to proceed. On the other hand, it would be prejudicial to the applicant if she were denied the opportunity to move forward with her case especially given the fact that she relied on advice from her legal counsel that may have contributed to the delay.
Merits of the case
23The respondent is of the position that although the applicant was found to be catastrophically impaired based on psychological impairments, the factor does not outweigh the other section 7 factors. The respondent submitted that granting the extension of the limitation period under section 7 of the LAT Act would undermine the certainty of the limitation period insurers rely on place a heavy burden on the respondent. The applicant submitted that because the applicant is catastrophically impaired, the merits of the appeal are significant.
24I find that there is sufficient evidence that supports the fact that the appeal has some merit. The applicant has been found to be catastrophically impaired. The applicant was found to have impairment levels that significantly impede useful functioning in the domains of her activities of daily living, her social functioning, and her adaptation/work functioning. This is quite significant in my view as there is an overlap between the tests for CAT and NEB. In light of the circumstances, to deny the applicant an opportunity to proceed with her application would be prejudicial. As such, I find that there is merit to the applicant’s appeal and that the parties should be afforded the opportunity to present their respective positions before the Tribunal.
Discretion
25I find that the applicant met her onus in demonstrating that the limitation period for commencing her application should be extended. As such, I am exercising my discretion under section 7 of the LAT Act to extend the limitation period and allow her to proceed with her application before the Tribunal.
Released: November 7, 2022
Tavlin Kaur, Adjudicator