RECONSIDERATION DECISION
Before: Theresa McGee, Vice-Chair
Licence Appeal Tribunal File Number: 19-011699/AABS
Case Name: Marina Landa v. The Dominion of Canada General Insurance Company
Written Submissions by:
For the Applicant: Marina Landa, Self-Represented
For the Respondent: Chris McCormack, Counsel
BACKGROUND
1Under Rule 18.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (the “Common Rules”), the Licence Appeal Tribunal (the “Tribunal”) has the authority to reconsider a decision on its own initiative.
2The Tribunal invited reconsideration submissions from the parties on its preliminary issue decision (dated October 9, 2020 and initially reconsidered on December 23, 2020). In the preliminary issue decision, the Tribunal barred the applicant from proceeding with several of her claims because she applied to the Tribunal outside the limitation period. The Tribunal determined that it lacked the discretion to extend the limitation period under s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (the “LAT Act”). The Tribunal declined to consider the grounds asserted by the applicant for an extension of time. The initial reconsideration decision upheld that determination.
3The applicant has appealed the Tribunal’s decisions to the Divisional Court. One of the grounds of appeal is that the Tribunal wrongly concluded it lacked discretion to extend the limitation period under s. 7 of the LAT Act. The state of the law has changed since the Tribunal issued its decisions in this matter. In Fratarcangeli v. North Blenheim Mutual Insurance Company [Fratarcangeli],1 the Divisional Court determined that the Tribunal does have jurisdiction to extend the limitation period set out in the Schedule. This reconsideration is to correct that error and consider whether the circumstances warrant an extension of time.
RESULT
4The Tribunal erred in law when it determined it lacked discretion to extend the limitation period in respect of the applicant’s claims. When the preliminary issue was decided, this was unsettled law. The Divisional Court has clarified that the Tribunal has the discretion to grant an extension of time. However, the applicant has not established grounds for an extension of the limitation period. The Tribunal would not have reached a different result had the legal error not been made. Reconsideration is therefore denied.
LAW
5The grounds for reconsideration are contained in Rule 18.2 of the Common Rules. Reconsideration will not be granted unless one of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
d) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
6This reconsideration engages the second ground identified in Rule 18.2, namely whether the Tribunal erred in fact or law such that it would have reached a different result had the error not been made.
7For the following reasons, I find that this ground has not been established.
ANALYSIS
8The accident occurred on November 6, 2007. The applicant applied for accident benefits, making numerous claims. At some point, though the record does not establish when, she retained counsel. Between July 2008 and September 2017, certain benefit claims the applicant had made were denied. The applicant submits that sometime in 2015, her then counsel began discussions with the respondent about the disputed benefits. The applicant’s relationship with her counsel broke down, and on May 3, 2017, she assumed responsibility for her claims. Without legal representation, she negotiated with the respondent in an attempt to settle the disputed denials.
9On October 24, 2019, the applicant filed an application with the Tribunal. Only one substantive issue, a claim for a medical benefit set out in a single treatment plan, was listed in that application. On April 3, 2020, the applicant added 13 other issues to her application, including the seven issues that were at issue in the preliminary issue hearing. The respondent raised a preliminary issue that would bar the applicant from proceeding with all seven issues. The Tribunal agreed with the respondent that the applicant failed to dispute its denials within two years.
The Tribunal erred in finding it lacked discretion to extend the limitation period
10The limitation period relevant to accident benefits disputes under s. 280 of the Insurance Act, R.S.O. 1990, c. I.8 is set out in s. 56 of O Reg 34/10: Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “2010 Schedule”). The predecessor to the 2010 Schedule, O Reg 403/96: the Statutory Accident Benefits Schedule - Accidents on or After November 1, 1996 (the “1996 Schedule”), imposes the same limitation period, set out at s. 51. Both provisions stipulate that an application for dispute resolution before the Tribunal must be commenced within two years of an insurer’s refusal to pay an amount claimed.
11Section 7 of the LAT Act provides that the Tribunal may extend the time for applying to the Tribunal if there are reasonable grounds for doing so.
12It is now settled law that s. 7 of the LAT Act grants the Tribunal the discretion to extend the limitation period for disputing a denial of accident benefits under the Schedule: see Fratarcangeli. In light of Fratarcangeli, the Tribunal’s determination that it lacked the discretion to extend the limitation period is clearly an error of law. On this point, the parties agree.
13Fratarcangeli affirms that when exercising its discretion to extend a limitation period, the Tribunal must apply the test set out by the Divisional Court in Manuel v. Registrar (“Manuel”).2 Manuel instructs the Tribunal to consider:
i. the existence of a bona fide intention to appeal;
ii. the length of the delay;
iii. prejudice to the other party; and
iv. the merits of the appeal.
14Manuel directs a holistic analysis of these factors; no single factor is determinative. The factors are subject to a broader rule that an extension should not be granted unless the “justice of the case” requires it. It is the applicant’s onus to establish that there are reasonable grounds for granting an extension.
15I will consider the parties’ submissions on each Manuel factor in turn.
The existence of a bona fide intention to appeal
16The applicant submits that she delayed the filing of her application to the Tribunal for two reasons: she had ineffective representation by counsel until May 2017, and thereafter she was engaged in resolution discussions with the respondent.
17The applicant submits that she was unaware of the limitation period until she personally became involved with the file in May of 2017. She acknowledges in her submissions that she discussed the issue of the limitation period (in relation to a recently denied claim) with the respondent around the time she assumed responsibility for her file. She submits she was unsure if it would be possible to support her claims and whether dispute resolution would be the best recourse at that stage of the claim process. She submits she was hesitant to start dispute resolution as it seemed to her that it would compromise the insurer-insured relationship.
18The respondent submits that evidence of ongoing settlement discussions is not enough to establish a bona fide intention to appeal within the limitation period. It submits that the applicant has failed to provide a reasonable explanation for the delay. It submits that it should not be made to suffer for the alleged failings of the applicant’s counsel.
19I find the applicant’s explanation for her delay in disputing the relevant denials unreasonable and unpersuasive. I make this finding for three reasons. First, the applicant submits that despite receiving several denial notices clearly stipulating the two-year limit for commencing dispute resolution, she remained unaware of the limitation period until her former counsel was removed from the record in 2017. Even if I accept this submission, I am not satisfied that the respondent should suffer the consequences of her former counsel’s alleged errors or omissions. The applicant has presented me with no submissions and no case law to support a conclusion that an extension of the limitation period is the appropriate remedy for any negligent handling of her file. While the applicant may have recourse through the Law Society or by way of a civil proceeding, the Tribunal is not in a position to adjudicate those issues. I articulated this concern at para. 50 of the preliminary issue decision. Moreover, the only evidence the applicant has tendered to establish that the missed limitation period resulted from her former counsel’s error or inadvertence is her 15-page affidavit filed with the Divisional Court in support of her appeal. The statements in the affidavit are newly before the Tribunal, the applicant has not been cross-examined on their contents, and the record before me contains no evidence corroborating them.
20Second, the applicant is explicit in her submissions that she knew about the two-year limitation period for starting Tribunal proceedings as early as May 2017. Yet she acknowledges she did not commence dispute resolution with respect to the six benefits already denied when she assumed responsibility for her file by adding them to her application until April 3, 2020, almost three years later. For the remaining issue, the benefit denied in September 2017, she inexplicably waited two and a half years from the date of the denial (six months after the limitation period expired) to add this issue to the dispute, which was an additional six months after she had initiated an application with the Tribunal over another benefit. These facts establish that any ineffective assistance of counsel the applicant suffered can only partially account for the delay.
21Third, the rationale the applicant provides for not immediately disputing the denials when she assumed responsibility for her file does not establish a bona fide intention to appeal. To repeat the concerns the applicant has outlined in her submissions, she was hesitant to start dispute resolution because:
i. she was unsure if it would be possible to support her claims;
ii. she was unsure whether it would be the best recourse at that stage of the claim process; and
iii. she was hesitant to start dispute resolution or litigation, as it seemed to her that it would compromise the insurer-insured relationship.
22These reasons do not support a finding of a bona fide intention to appeal. Rather, they suggest ambivalence towards the dispute resolution process, grounded in the applicant’s uncertainty as to whether she would be successful in litigation and a desire to continue direct negotiations with the respondent.
23The applicant relies on Sirniak v. Dhaliwal, (“Sirniak”),3 which she submits supports a finding that ongoing settlement discussions justify litigation delay. Sirniak dealt with a motion to set aside a registrar’s dismissal of an action for delay under the Rules of Civil Procedure. In Sirniak, the action had properly been commenced within the limitation period. A distinguishing feature of the settlement discussions that occurred in Sirniak is that the failure to meet the relevant deadline rested with the insurer, not the plaintiff. The timetable for litigation was sidetracked because the defendants had asked for an indulgence from the plaintiff to allow them to make a settlement offer mere days before the deadline for filing a statement of defence. In all other respects, the court found, the plaintiff had been diligent in moving the litigation forward. In the present case, there is no evidence that the respondent urged the applicant to defer Tribunal proceedings so that settlement discussions could continue. To the contrary, the evidence suggests that the respondent was transparent with the applicant about the dispute resolution process and her right to pursue it within the limitation period.
24I am sensitive to the challenges that an insured person acting without legal representation may encounter in deciding whether litigation is in their best interest. However, it is apparent from the correspondence between the parties between May 2017 and September 2019 that the respondent made efforts, consistent with its statutory and common law duties, to inform the applicant of her procedural rights should she wish to dispute its denials of benefits. The applicant acknowledges at para. 33 of her submissions that the respondent advised her of her right to appeal to the Tribunal if she disagreed with its denial of the $1,470.00 physiotherapy claim in 2017.
25I find that the applicant knew about the relevant limitation period at least as early as May 2017 and chose not to pursue the dispute resolution process. Her reasons for failing to dispute six of the seven issues with the Tribunal for an additional two years and eleven months do not disclose a bona fide intention to appeal within the limitation period. Nor has she provided a reasonable explanation for delaying the dispute resolution process for the benefit denied in September 2017 until April 2020.
The length of the delay
26To my knowledge, the delays in this case are among the most substantial this Tribunal has considered when asked to exercise its discretion to extend the limitation period.
27The following table illustrates, for each benefit at issue, the date of the denial, the date the two-year limitation period expired, the date the issue was added to the application before the Tribunal, and the length of the delay:
| Issue (benefit in dispute) | Date denied | Limitation period expiry date | Date of application to the Tribunal | Length of the delay |
|---|---|---|---|---|
| Income replacement benefit | July 21, 2008 | July 21, 2010 | April 3, 2020 | 9 years, 8 months, and 14 days |
| Medical benefit ($178.70 for prescription medication) | February 23, 2009 | February 23, 2011 | April 3, 2020 | 9 years, 1 month, and 12 days |
| Medical benefit ($1,470.00 for physiotherapy) | September 26, 2017 | September 26, 2019 | April 3, 2020 | 6 months and 9 days |
| Medical benefit ($9,500.00 for physiotherapy and psychological services) | August 25, 2009 | August 25, 2011 | April 3, 2020 | 8 years, 7 months, and 10 days |
| Medical benefit ($4,187.00 for psychological therapy) | September 1, 2009 | September 1, 2011 | April 3, 2020 | 8 years, 7 months, and 3 days |
| Medical benefit ($1,800.00 for physiotherapy and psychological services) | December 31, 2010 | December 31, 2012 | April 3, 2020 | 7 years, 3 months, and 4 days |
| Housekeeping services | July 15, 2008 | July 15, 2010 | April 3, 2020 | 9 years, 8 months, and 20 days |
28The applicant submits that the Tribunal exaggerated the length of the delay in this case, which she asserts is a legal error, relying on Sharma v. Allstate Insurance (“Sharma”).4 In Sharma, the Tribunal incorrectly calculated the relevant delay from the date of the denial, not the expiry of the limitation period. That was not the case in the preliminary issue decision. The applicant had two years from the date of the denials to file with the Tribunal, and instead, in clear contrast to that timeframe, she waited for the periods expressed at paras. 19, 22, 24, 27, 30, 33, 36 and 40 of the preliminary issue decision to do so. Clearly, one would subtract two years from these time periods to arrive at the relevant length of the delay. This is exactly the calculation expressed by the Tribunal at para. 49 of the preliminary issue decision: the applicant initiated dispute resolution between six months and almost 10 years outside the limitation period. However expressed, the fact is the applicant exceeded the two-year limit for each issue.
29The applicant submits, relying on Pena v. Allstate Insurance Company of Canada (“Pena”)5 that extensions have been granted in cases where the delay was several years from the date of the denial. In Pena, she submits, the applicant was allowed to dispute the denial six years after the accident. She submits that sometimes, even where none of the four Manuel factors are met, extending the time can be justified.
30The applicant misinterprets the Tribunal’s findings in Pena. The Tribunal decided that case based on the discoverability principle: the applicant discovered his claim for an income replacement benefit after working for several years with a deteriorating medical condition until he could no longer do so. In other words, the Tribunal found that there was no valid denial because the applicable benefit had never actually been claimed until after the applicant stopped working. The Tribunal went on to conclude that even if discoverability did not apply and the insurer had validly denied the claim, triggering the limitation period, the Tribunal should exercise its discretion to extend it. This was because the applicant had diligently pursued an income replacement benefit, disputing the insurer’s decision within a year. Those facts are not present here.
31The respondent submits that the Tribunal has found delays ranging from two to 10 months and longer as significant delays prejudicial to insurers. In one case, Mai. v Aviva Insurance Company of Canada,6 the Tribunal found that a delay of five months resulted in incurable prejudice to the insurer. In Mai, the Tribunal concluded that evidence of ongoing settlement discussions was insufficient to establish a bona fide intention to appeal.
32As I have discussed, the applicant added six of the seven issues to her Tribunal application two years and 11 months after assuming responsibility for her file (between seven and nearly 10 years after the denials). Although the delay in disputing the denied $1,470.00 claim for physiotherapy was significantly shorter than the others (i.e. six months), it is the least capable of being rationalized, because the applicant by her own admission had full knowledge of the limitation period when the claim was denied. She has tendered email correspondence with the respondent dated September 26, 2019, the day the limitation period expired, in which she acknowledges that the deadline fell on that day. These delays are significant, and weigh against granting an extension of time.
Prejudice to the other party
33The applicant submits that the delay should not matter to the respondent. She submits that assessment clinics could close within two years or remain open after 10 years regardless of whether litigation is ongoing, and that experts rely on their assessment notes anyway. She submits that all the documents the respondent needs to assess her claim since 2007 are already in its possession and that it can claim no prejudice resulting from the delay. She submits that on the issue of prejudice, she and the respondent are in the same position.
34The respondent submits that it would be incurably prejudiced if the Tribunal were to extend the limitation period and permit these claims to proceed. In respect of some of the benefits in dispute, it would be required to rely on insurer’s examinations conducted over a decade ago. It submits it would face difficulty in locating some witnesses. It submits that it would have adjusted the applicant’s file differently if she had disputed the denials within the limitation period.
35The concerns raised by the respondent are not mitigated by the applicant’s submission that she, too, faces prejudice because of her delay. It is well-established that insurer’s examinations are an insurer’s only option for obtaining independent, contemporaneous medical evidence to defend claims made against them. I find that the respondent’s ability to adjust the applicant’s file, arrange for additional insurer’s examinations as needed, and participate in proceedings before the Tribunal is significantly hindered by the delays, which range from six months to nearly a decade.
36The applicant submits that the respondent has failed to provide proof of actual prejudice. With respect, under the Manuel test, it is the applicant’s onus, as the party seeking the discretionary extension of time, to show the absence of prejudice. She has not done so. Her submission that the respondent already has expert opinions in its possession does not account for the concern that the respondent would have adjusted the file differently had the dispute been commenced within the limitation period.
The merits of the appeal
37The applicant submits that her claims, particularly those for an income replacement benefit and a housekeeping and home maintenance benefit, have merit. She submits that if there is merit, the extension should be granted, regardless of whether the other factors have been established because it is unfair and contrary to the consumer protection purpose of the Schedule to dismiss an application on a technicality.
38While I appreciate the applicant’s position, I do not accept her submissions on this point. The simple fact that the issue of entitlement would be better adjudicated on a full evidentiary record does not necessarily justify an extension of the limitation period. Granting an extension on this basis alone would permit one Manuel factor to prevail over the others, contrary to the Divisional Court’s clear and binding direction in both Manuel and Fratarcangeli to consider the four factors holistically.
39The respondent submits that the applicant has not met her onus in establishing the merits of the appeal. It submits that it denied the benefits based on the available medical records and insurer’s examinations. The respondent notes that the applicant has admitted to returning to work before the stoppage of her income replacement benefit.
40The evidence before the Tribunal relating to the applicant’s underlying entitlement is limited to a handful of medical reports procured from assessors that the applicant tendered at the preliminary issue hearing. There are no clinical notes and records from primary care providers corroborating diagnoses and recommendations in these reports. However, under the Manuel test, the applicant simply bears the onus of establishing that there is some merit to the application. She does not need to prove her case on the merits.
41“Some merit” is a very low bar. The onus remains with the applicant, however, to show, through evidence, that this bar is met. I will address the applicant’s submissions on the merits of each issue:
i. The respondent submits the denial of the income replacement benefit was based on an insurer’s examination which found the applicant no longer satisfied the criteria for the benefit. I have not been provided with that report. The applicant admits that she returned to her self-employment activities during the relevant period on reduced hours. She claims $190.75 per week from August 11, 2008 to November 6, 2009, but there are no records before me to establish the quantum of benefits, if any, to which she is entitled. The evidence before me does not establish entitlement to this benefit, though there may be merit to this claim.
ii. The prescription medications were claimed in an OCF-6 and incurred before the submission of an OCF-18 as required by the Schedule. When the respondent denied this claim, it stated that it would consider funding the expenses if the applicant submitted an OCF-18. The parties disagree about whether the applicant ever took this step. Although it is open to an insurer to pay an expense incurred before the submission of an OCF-18, there is not statutory requirement to do so. The respondent maintains its denial. I conclude that there is likely no merit to this claim.
iii. There is no dispute that the applicant failed to attend the insurer’s examination requested in relation to the $9,500.00 physiotherapy claim denied on August 25, 2009. The applicant submitted at the preliminary issue hearing that she considered the examination a duplicate and therefore unnecessary, because she had recently obtained an examination by an assessor of the same discipline. At the preliminary issue hearing, I did not need to decide whether the applicant was barred from proceeding with this claim for non-attendance at the examination since she was clearly barred for failing to comply with the limitation period. For the purposes of this analysis, however, I conclude that there is likely no merit to this claim because the applicant failed to attend a properly requested insurer’s examination. An existing report by an insured’s own assessor does not render an insurer’s examination unnecessary.
iv. The $1,470.00 for physiotherapy claim was made approximately 10 years after the accident. The medical records show that the applicant’s accident-related injuries were uncomplicated soft tissue injuries. The applicant submits she also suffered from chronic pain. The respondent contests this. The medical evidence the applicant has tendered to support a chronic pain diagnosis or the reasonableness and necessity of passive physical therapy 10 years after the accident is minimal. That evidence is uncorroborated by clinical notes and records from a primary care provider. On the available evidence, the merit of this claim is possible, but doubtful.
v. For the remaining medical and rehabilitation benefits, given the timing of the claims, the nature of the treatment sought, and the absence of evidence from the respondent’s assessor’s, I can only conclude that the claims may have merit.
vi. For the housekeeping and home maintenance claims, there is conflicting medical evidence as to the applicant’s entitlement. I have not been provided with a complete record and I conclude that there may be some merit to the claims.
42To summarize, the applicant has shown that there may be some merit to some of her claims.
Summary
43Weighing the four Manuel factors holistically, I find that the applicant has not shown that an extension of the limitation period is justified. The applicant has failed to demonstrate a bona fide intention to appeal within the limitation period. The length of the delay, ranging from six months to almost a decade after the expiry of the limitation period, is substantial, and the prejudice flowing from it readily apparent. This is not a case where the merit of the application is clear and compelling such that granting an extension would be warranted despite every other Manuel factor weighing against an extension. The possibility that there is some merit to some of the claims does not, on its own, justify an extension of time.
44Ultimately, to grant an extension in these circumstances would undermine the certainty of the dispute resolution process. I endorse the following statement of Vice-Chair Gregory Flude in Allen v. Certas Home and Auto Insurance Company:7
The 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.
45The applicant has failed to establish that the “justice of the case” requires an extension of time. Any alleged mishandling of her claims by the applicant’s former counsel is properly dealt with in another forum. Her Tribunal file remains open and will proceed to adjudication on the denials she disputed within the limitation period.
CONCLUSION AND ORDER
46The Tribunal erred in law by determining that it lacked the discretion to extend the limitation period to allow the applicant to proceed with her time-barred claims. Had the Tribunal not made that error, however, the outcome would have been no different. The applicant has failed to show that the circumstances surrounding the delay justify an extension.
47Reconsideration is dismissed. The matter shall continue to a substantive hearing on the remaining issues in dispute.
Theresa McGee
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: June 9, 2022