CITATION: Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997
DIVISIONAL COURT FILE NOS.: 317/19; 429/19; 532/19
DATE: 20210615
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lederer, Penny and Sheard JJ.
BETWEEN:
ALDO FRATARCANGELI and NICOLE LADOUCEUR
Applicants (Respondents in Appeal)
– and –
NORTH BLENHEIM MUTUAL INSURANCE COMPANY
Respondent (Appellant)
AND BETWEEN:
LEONARD REARDON
Applicant (Respondent in Appeal)
– and –
ROYAL & SUN ALLIANCE INSURANCE COMPANY OF CANADA
Respondent (Appellant)
Peter Cimino for the Respondents
Richard Shaheen and Rebecca Pepper for the Appellant
Nathan Tischler, Imtiaz Hosein and Sylvia Guirguis
for the Respondent
Lora Castellucci for the Appellant
AND BETWEEN:
SALEH SHEWAY
Appellant
– and –
CERTAS HOME AND AUTO INSURANCE COMPANY
Respondent
– and –
LICENCE APPEAL TRIBUNAL
Intervenor
Sandi Smith for the Appellant
Kathleen Watson and Rose Bilash for the Respondent
Valerie Crystal and Katia Snukal for the Intervenor
HEARD: December 8, 2020 and February 19, 2021
BY THE COURT:
Overview
[1] These three appeals were heard together as they raised a common issue:
Does the Licence Appeal Tribunal (the “LAT”) have jurisdiction under s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G. (the “LAT Act”) to extend the two-year time limit period for filing appeals set out in s. 56 of the Statutory Accident Benefits Schedule, O. Reg. 34/10 (the “SABS”)?
[2] As explained below, we have determined that s. 7 does grant the LAT jurisdiction to extend the s. 56 limitation period.
[3] In two of the three matters under appeal, the adjudicator concluded that they had jurisdiction under s. 7 and granted an extension of time. On those matters, this Court must determine whether the adjudicators erred in law in the exercise of that jurisdiction.
[4] In the third matter, on a reconsideration hearing, the adjudicator determined that s. 7 did not give jurisdiction to extend the s. 56 time limit and that the applications to the LAT were brought out of time. However, because the adjudicator concluded that the LAT had no jurisdiction under s. 7, she did not address whether the LAT had properly exercised its discretion to grant the extension request. For that reason, that matter must be returned to the adjudicator for a determination of that issue.
Jurisdiction under s. 7 of the LAT Act
[5] The LAT is an administrative tribunal created pursuant to the LAT Act. The appeals before us are governed by ss. 11(1) and (6) of the LAT Act which state as follows:
(1) Subject to subsections (2) to (6), a party to a proceeding before the Tribunal relating to a matter under any of the following Acts may appeal from its decision or order to the Divisional Court in accordance with the rules of court:
(6) An appeal from a decision of the Tribunal relating to a matter under the Insurance Act may be made on a question of law only.
[6] Prior to April 1, 2016, the Financial Services Commission of Ontario (“FSCO”) was empowered to resolve SABS disputes, through mediation and then arbitration. Insured persons also had the option to commence a court proceeding rather than to arbitrate through FSCO.
[7] On April 1, 2016, the LAT assumed jurisdiction under the Insurance Act, R.S.O. 1990, c. I.8, to adjudicate automobile accident benefits disputes. The Insurance Act and the SABS codify Ontario’s no-fault accident benefits regime. Pursuant to s. 268(1) of the Insurance Act, every automobile insurance policy in Ontario is deemed to include the benefits provided in the SABS. The LAT has exclusive jurisdiction under s. 280 of the Insurance Act to resolve any disputes “in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.”
[8] Section 56 of the SABS prescribes a two-year time limit for bringing applications, and reads as follows:
An application under subsection 280 (2) of the Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.
[9] Section 7 of the LAT Act states:
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 under any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying 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.
[10] For the reasons that follow, we conclude that s. 7 of the LAT Act gives the LAT jurisdiction to extend the two-year time limit set out in s. 56 of the SABS.
Background
[11] In North Blenheim, Executive Chair Lamoureux found that the two-year limitation under s. 56 of the SABS is a “limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal”, within the meaning of s. 7 of the LAT Act. Accordingly, she held that the LAT may grant an extension of time if it is “satisfied that there are reasonable grounds for applying for the extension and for granting relief.”
[12] The Executive Chair reasoned that nothing in the wording of s. 7 or the LAT Act as a whole suggests that s. 7 is limited in its application to only certain types of proceedings. To the contrary, the discretion to grant an extension of time applies “[d]espite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal”.
[13] While s. 7 of the LAT Act predated the transfer of statutory accident benefit disputes from FSCO to the LAT, it was open to the Legislature to amend the LAT Act to exclude Insurance Act matters from the application of s. 7. In fact, the Legislature did amend other provisions of the LAT Act when it transferred SABS disputes from FSCO to the LAT. Subsection 11(6) of the LAT Act was added to specify that an appeal from the LAT 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, from the power to grant extensions of time, an exception for Insurance Act proceedings. Since the Legislature is presumed to know the law and not to make mistakes (Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008) at p. 245), the Executive Chair assumed 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.
[14] The Executive Chair also found that every party who commences a proceeding at the Tribunal has a right to a hearing. Accordingly, an application to the Tribunal under the Insurance Act was a “notice requiring a hearing” within the meaning of s. 7 of the LAT Act.
[15] In RSA Insurance, Adjudicator Punyarthi also found that a LAT adjudicator has the discretion under s. 7 to extend the time period set by the SABS if she is satisfied that there are reasonable grounds for the extension. She gave no reasons for this threshold conclusion, but simply analysed the four factors in Manuel v. Ontario (Registrar, Motor Vehicle Dealers Act), 2012 ONSC 1492 (Div. Ct.) and concluded that there were reasonable grounds to grant an extension.
[16] In Certas, Adjudicator Neilson came to a different conclusion, based on somewhat different arguments than those considered by Executive Chair Lamoureux in North Blenheim. Adjudicator Neilson focussed on the difference between an Act and a regulation. Section 7 refers to a time limit fixed “by or under any Act”. The two-year time limit in the SABS, however, is fixed by regulation.
[17] Both the terms “Act” and “regulation” are used in s. 3 of the LAT Act, which refers to the duties assigned to the Tribunal “by or under any Act or regulation.” However, in s. 7, only the term “Act” is used. If “by or under any Act” was meant to include regulations made under an Act, then the use of “regulation” in s. 3 of the LAT Act would be redundant.
[18] Further, under the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, the definition for “Act” is different from the definition for “regulation.” To read the definition of “regulation” as if it had the same meaning as “Act” would obscure the difference in these definitions and result in a change to the legislative process for enacting laws. It would mean, for example, that the law (under a statute) could be subject to repeal or amendment by the Lieutenant Governor in Council.
[19] In addition, there was a two-year limitation period for accident benefit claims under s. 281.1(1) of the Insurance Act. That provision was repealed when the dispute resolution process was transferred to the LAT. The Adjudicator reasoned that if the Legislature had intended to give the LAT discretion to extend the limitation period for appealing a denial of accident benefits, the two-year limitation period in the Insurance Act would not have been repealed but would have been amended to state that it was subject to the discretion of the LAT, in accordance with s. 7 of the LAT Act. Instead, s. 281.1(1) was repealed and only s. 56 of the SABS was amended. The SABS is silent on whether the LAT may extend the limitation period. A contemporaneous amendment to s. 121(1)(26) of the Insurance Act gave the Lieutenant Governor in Council the power to make regulations governing the proceedings before the LAT, including imposing time limits or limitation periods. Section 7 of the LAT Act could have been amended to include “regulations” but was not, even though ss. 11(1) and (6) of the LAT Act were amended to include proceedings under the Insurance Act. If s. 7 is to be interpreted as conferring a power to extend the two-year limitation period set down in s. 56 of the SABS, these amendments and repeals would have to be considered oversights or errors by the Legislature, contrary to a long-standing canon of statutory construction.
[20] Thus, Adjudicator Neilson found that on a plain reading, the legislative intent of the 2016 amendments was to remove any discretion regarding the limitation period from the jurisdiction of s. 7 of the LAT Act. The limitation period for appealing the denial of a statutory benefit claim was not fixed by or under an Act; rather, it was fixed by a regulation. The LAT, therefore, did not have discretion under s. 7 of the LAT Act to extend a limitation period established by regulation, including s. 56 of the SABS.
[21] The Adjudicator went on to say, however, that if s. 7 of the LAT Act were interpreted to include a limitation period made by a regulation, not just by an Act, she would have found that a “notice requiring a hearing” includes an application to the LAT under s. 280(2) of the Insurance Act.
Issues
[22] There are two issues regarding whether s. 7 of the LAT Act confers jurisdiction to extend the two-year limitation period in s. 56 of the SABS:
(1) whether s.7 has no application to disputes concerning the denial of benefits under the SABS because the limitation period is fixed under a regulation and not “by or under any Act” within the meaning of s. 7; and,
(2) whether s. 7 does not apply because an application to the LAT for the resolution of a dispute under the SABS is not a “notice requiring a hearing” within the meaning of s. 7.
[23] On the first issue, the insurers seek to uphold the decision of Adjudicator Neilson and to overturn the decisions of Executive Chair Lamoureux and Adjudicator Punyarthi. The insureds, naturally, seek to uphold the decisions of Executive Chair Lamoureux and Adjudicator Punyarthi and to overturn the decision of Adjudicator Neilson.
[24] On the second issue, one insurer, Certas, effectively seeks to overturn all three of the decisions. The insureds seek to uphold the decisions.
Analysis
Standard of Review
[25] These proceedings were commenced, and some of the factums were filed, before the release of the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. Since Vavilov, although the default standard of review of administrative decision making is reasonableness, it is now clear that where the legislature has indicated that another standard of review is applicable, the Court must show deference to that legislative choice.
[26] In this case, the LAT Act provides in s. 11(6) that an appeal lies to the Divisional Court from a decision of the LAT on a question of law only. The standard of review on a question of law is correctness.
[27] The question of the LAT’s jurisdiction under s. 7 involves the interpretation of a statutory provision. The interpretation of a statutory provision is a question of law. Accordingly, the standard of review on the issue of the proper interpretation of s. 7 of the LAT Act is correctness.
Rules of Statutory Interpretation
[28] A court interpreting a statutory provision must apply the “modern principle” of statutory interpretation. Words of a statute must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27 at para. 21, and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 26, both quoting E. Driedger, Construction of Statutes (2nd ed., 1983) at p. 87. Parliament and the provincial legislatures have also provided guidance by way of statutory rules that explicitly govern the interpretation of statutes and regulations: Vavilov at para. 117.
[29] This “modern principle” has been adopted as the proper approach to statutory interpretation because legislative intent can be understood only by reading the language chosen by the legislature in light of the purpose of the provision and the entire relevant context: Sullivan at pp. 7-8. Those who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose, regardless of whether the entity tasked with interpreting the law is a court or an administrative decision maker. Those who interpret the law – whether courts or administrative decision makers – must do so in a manner consistent with this principle of interpretation: Vavilov at para. 118.
Whether “by or under any Act” precludes the application of s. 7 to a limitation fixed by regulation
[30] The insurers advance essentially three arguments in support of their position that s. 7 of the LAT Act does not confer the power to extend the two-year limitation in s. 56 of the SABS.
[31] First, they argue that the text of s. 7 refers to “any limitation of time fixed by or under any Act”, whereas the applicable two year limitation is contained in s. 56 of a regulation, not in a provision of “any Act”.
[32] Relying on the canon of statutory interpretation called “uniformity of expression”, they submit that each term and expression of an enactment should have one and only one meaning wherever it appears. Conversely, a different expression implies a different concept or meaning.
[33] The terms “Act” and “regulation” are used separately in other sections of the LAT Act (as well as in the Legislation Act, 2006). For example, s. 3 of the LAT Act provides that the Tribunal’s duties are assigned to it “by or under any Act or regulation” (emphasis added). Further, s. 6(6) states that rules made by the Tribunal under this section “do not prevail over provisions in any other Act, or a regulation made under this or any Act” (emphasis added). If the expression “under any Act” found in s. 7 was intended to include regulations, the expressions found at ss. 3(1) and 6(6) of the LAT Act would be redundant, contrary to the “uniformity of expression” canon of statutory interpretation.
[34] Thus, the insurers argue that by referring only to a limitation fixed “by or under any Act”, the Legislature intended, and the words chosen in s. 7 mean, that the s. 7 power to extend a limitation does not apply to a limitation fixed by a regulation. Because s. 56 of the SABS is a limitation fixed by regulation, the LAT has no power to extend the time limit in s. 56 of the SABS.
[35] Second, they argue that s. 7, read in its proper statutory context (along with ss. 280 and 121(1)(26) of the Insurance Act and s. 56 of the SABS) makes it clear that the specific two-year limitation in s. 56 of the SABS, by virtue of being highly specific and mandatory, conflicts with and was intended to prevail over the general power in s. 7 to extend the time for giving notice under any Act.
[36] Third, they argue that the purpose of the transfer of SABS disputes to the LAT (from FSCO) was to improve timeliness and efficiency and to foster certainty and predictability. Extending the already generous two-year limitation imposed by s. 56 of the SABS under the purported power conferred by s. 7 is contrary to those purposes.
[37] We do not find any of these arguments persuasive.
Section 7 must be read broadly to include limitations fixed by regulations under an Act
[38] The text of s. 7 on its face is broad and unlimited:
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…
[39] While it is true that the LAT Act does, in ss. 3 and 6(6), use both the terms Act and regulation, this is but one consideration. Indeed, the principle of textual consistency is not an inflexible or infallible rule. The “rules” of statutory interpretation are not rules at all, in the ordinary sense of having some binding force. They are aids to construction, presumptions or pointers. Not infrequently, one “rule” points in one direction, while another points in a different direction. As is the case here, the same rule may point in two different directions, depending on where the emphasis lies. In each case, one must look at all relevant circumstances. Different contexts may require different meanings: Bapoo v. Co-Operators General Insurance Company, (1997) 1997 6320 (ON CA), 154 D.L.R. (4th) 385 (Ont. C.A.) at 396; Maunsell v. Olins, [1975] A.C. 373 (H.L. (Eng.)) at 382, per Lord Reid.
[40] Here, the very words relied on by the insurers to justify a distinction between an Act and a regulation also support the conclusion that, by the use of the phrase “by or under any Act”, the Legislature intended in s. 7 to include not only a limitation fixed by an Act but a limitation fixed under an Act. Section 6(6) itself refers to “provisions in any other Act, or a regulation made under this or any Act”. Regulations are made “under” an Act. This is supported by the definition of “regulation” in the Legislation Act, 2006: “‘regulation’ means a regulation, rule, order or by-law of a legislative nature made or approved under an Act…” (emphasis added).
[41] We conclude that when s. 7 refers to a time fixed by or under an Act, it is contemplating a time limit fixed by regulation. Section 56 of the SABS contains a time limit fixed “under” the Insurance Act by virtue of the regulation-making power contained in s. 121(1)(26). Thus, the two-year limitation fixed by s. 56 of the SABS is a time limit fixed under an Act and is subject to the LAT’s power to extend in s. 7.
[42] There are two problems with the insurers’ argument that if the Legislature had wanted the s. 7 power to apply to a limitation fixed by a regulation as well as by an Act, “it would have said so”. First, by the use of the term “by or under an Act”, the Legislature did “say so”. Second, the argument is fundamentally unhelpful from an analytical point of view because exactly the same thing could be said about the insurers’ interpretation: if the Legislature had wanted s. 7 not to apply to a regulation passed under the Insurance Act, it would have said so.
[43] As noted by Executive Chair Lamoureux in her decision in the North Blenheim case, while s. 7 of the LAT Act predates the transfer of automobile accident benefit disputes from FSCO to the LAT, it was open to the Legislature to amend the LAT Act to exclude Insurance Act matters from the application of s. 7. Indeed, the Legislature did amend other provisions of the LAT Act when it transferred these matters from FSCO to the LAT. Subsection 11(6) of the LAT Act, for example, was added to specify that an appeal from the LAT 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, from the power to grant extensions of time, an exception for Insurance Act proceedings.
[44] We would also note that, under the logic of the insurers’ argument, an appeal on a question of law “relating to a matter under the Insurance Act” would not lie under s. 11(6) to the Divisional Court from the LAT’s final order regarding a SABS dispute because the disputes in question are under the SABS (a regulation under the Insurance Act), not “under” the Insurance Act itself.
[45] Finally, as the LAT itself has pointed out, the interpretation of s. 7 of the LAT Act urged upon us by the insurers would have the effect of significantly narrowing the LAT’s jurisdiction, in the context of other disputes under other statutory schemes. The LAT has undoubtedly exercised the jurisdiction to extend limitations fixed under those statutory schemes unchallenged, for many years, prior to it taking on the responsibility for dealing with SABS disputes.
[46] The LAT has identified seven other legislative schemes under which its jurisdiction under s. 7 is applied to limitations found in regulations, not in the relevant Act itself. The most striking example involves requests for extensions of time to appeal motor vehicle impoundments under s. 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8. These proceedings make up, by far, the bulk of the extensions of time sought from the LAT under s. 7. The time limit for appealing an impoundment under the Highway Traffic Act, however, is found in s. 9 of O. Reg. 631/98 (passed under the Highway Traffic Act), which provides that an appeal to the Tribunal under the Highway Traffic Act with respect to the impoundment of a motor vehicle “shall be commenced by filing with the Tribunal a notice of appeal… within 15 days after the day the vehicle was detained…”.
The doctrine of paramountcy does not apply
[47] The insurers’ second argument is that s. 280(5) of the Insurance Act provides that its regulations “may provide for and govern” the powers and duties of the LAT for the purpose of conducting SABS disputes. Section 121(1)(26) of the Insurance Act provides that the Lieutenant Governor in Council may make regulations governing proceedings before the LAT under s. 280, including imposing time limits or limitation periods. Section 56 of the SABS uses mandatory language: “shall be commenced”. This unambiguously fixes the limitation applicable to SABS disputes. That two-year limitation is strict; nothing in the Insurance Act or in the SABS confers on the LAT any authority to extend the time.
[48] The insurers then argue that the Insurance Act and SABS provisions, by virtue of their mandatory and specific nature, were intended to govern SABS disputes and be exhaustive. The Insurance Act and its regulations are, therefore, the “paramount” legislation in the context of a proper “scheme and purpose” analysis. The LAT Act, in this characterization of scheme and purpose, is a subordinate and generic enactment relative to the Insurance Act and the SABS and ought to be rendered “inoperative” because a) it is in “conflict” with the paramount statute; or, b) its provisions are merely “generic” in nature.
[49] The doctrine of paramountcy is a principle of constitutional law governing situations where otherwise valid provincial law comes into conflict with otherwise valid federal law. It has no application to the interaction between two provincial statutes or statutory schemes. Further, the principle of paramountcy requires that there be a conflict between one statute and another. Here, there is no conflict. The Insurance Act sets up a framework for benefits and confers the power to make regulations implementing that framework. The regulations (the SABS) set out the details for the benefits, including the resolution of disputes about those benefits, which in turn include a two- year limitation after benefits are denied. The LAT Act sets out additional rules about proceedings before the LAT, including s. 7, which permits the LAT to extend any limitation imposed by or under any Act. Thus, the LAT Act expressly contemplates a circumstance in which, despite any limitation in another Act, such as the Insurance Act, the limitation may be extended by the LAT. There simply is no conflict.
[50] To the same effect, the doctrine that “the specific excludes the general”, also has no application. That principle typically requires a conflict or ambiguity in respect of which resort to the canons of construction must be had. There is no conflict. There is no need for, or purpose served by, the application of this canon to the facts of this case.
Policy favours s.7 power to extend s. 56 time limits
[51] Finally, the insurers make a policy argument based on the alleged purposes of the transfer of SABS disputes to the LAT. Relying on certain statements from legislative reports and debates, the insurers argue that the purpose of this transfer was to achieve more efficiency, timeliness, certainty and predictability in the handling of SABS disputes. They argue that using the power under s. 7 of the LAT Act to extend the limitation in s. 56 of the SABS is contrary to that purpose.
[52] First, the insurers take too narrow a view of relevant legislative purpose. The Court of Appeal has accepted that the Legislature’s decision to provide the LAT with the sole jurisdiction to decide all disputes between insurers and claimants was undertaken to reduce insurance rates, and allow for an efficient, fair and accessible dispute resolution process: Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615, 147 O.R. (3d) 65 at paras. 38 and 52. The provision of benefits to those who need and qualify for them, through a process which is fair, accessible and efficient, is clearly the dominant purpose of the statutory scheme.
[53] Second, the legislative, adjudicative and judicial history associated with s. 7 and the 2016 reforms to the SABS makes it plain that, when SABS disputes were transferred to the LAT, it was well known that the LAT employed s. 7 and that there was judicial review of and direction about the manner in which it did so: Manuel v. Ontario (Registrar, Motor Vehicle Dealers Act). The Legislature is, under the canons of construction, deemed to know the law.
[54] Finally, there is no evidence filed in support of the bald allegation that allowing the LAT to extend the s. 56 limitation period, in appropriate circumstances, impairs timely and efficient resolution of disputes. This is simply a conclusory assertion put forward by the insurers without any empirical support.
Whether an application to the LAT from a denial of benefits under the SABS is a “notice requiring a hearing”?
[55] Among the three insurers, only Certas argues that an application to the LAT to resolve a dispute about statutory accident benefits is not a “notice requiring a hearing” within the meaning of s. 7 of the LAT Act.
[56] Certas argues that the Insurance Act and the SABS refer to an “application” to resolve disputes between insurers and insureds with respect to an insured person’s entitlement to statutory accident benefits. It submits that there is no principle of statutory interpretation that logically leads to an “application” for the resolution of such a dispute being properly assigned the meaning of a “notice of hearing” as referred to by s. 7.
[57] This was an argument Certas made before Adjudicator Neilson. In her reasons, the Adjudicator rejected this argument, saying:
The respondent submits that the Tribunal erred in finding s. 7 of the LAT Act does not apply because a LAT application under s. 280(2) of the Insurance Act is not a “notice requiring a hearing” as required by s. 7. I need not consider this submission given my finding above. However, if s. 7 of the LAT Act had included limitation periods made under regulations, I would have found no error in the Tribunal’s analysis that a notice requiring a hearing includes an application to the Tribunal under s. 280(2) of the Insurance Act. Accordingly, this portion of the respondent’s application for reconsideration is dismissed.
[58] Indeed, none of the decisions under appeal adopted the Certas interpretation that a “notice requiring a hearing” does not capture an application to the LAT under s. 56 of the SABS.
[59] We can find no error in the Adjudicator’s conclusion on this issue. Certas has offered no explanation for what a “notice requiring a hearing” is if it does not include an application to the LAT for resolution of a dispute about entitlement to statutory accident benefits. The LAT treats SABS applications as the “commencing document” for a proceeding which entitles an applicant to a hearing. The mere fact that there may be limited or infrequent circumstances where the LAT may not grant a hearing or where a case can be dismissed without a hearing does not undermine the fundamental point. The underlying purpose of an application to the LAT under s. 56 of the SABS is, ultimately, to have a hearing before the LAT on the disputed issues.
[60] Further, as submitted by the LAT, if the Court were to determine that SABS applications are not “notices requiring a hearing”, this would also have broad implications for the rest of the LAT’s responsibilities under other legislative schemes. While a number of the LAT’s 33 statutes use the phrase “notice requiring a hearing” in provisions allowing for appeals to LAT, others do not, including s. 50.2 of the Highway Traffic Act which provides for an “appeal” from impoundment. There is no basis to treat a SABS “application” any differently than an impoundment “appeal”, with respect to whether it is a “notice requiring a hearing” within the meaning of s. 7. They are both “commencing documents” which require the LAT to hold a hearing. If the Certas reasoning – that because not all SABS applications actually result in a hearing, the means of their commencement is not a “notice requiring a hearing” under s. 7 – is accepted, the same reasoning would apply to any other type of LAT proceeding. Like SABS applications, proceedings in the rest of the LAT’s portfolio may settle, be withdrawn or, in limited circumstances, be dismissed without a hearing. If the fact that not every proceeding reaches the hearing stage means that the commencing document is not a “notice requiring a hearing”, then the LAT would lack any jurisdiction at all under s. 7 of the LAT Act.
[61] For these reasons, we allow the appeal from the decision of Adjudicator Neilson and dismiss the appeals from Executive Chair Lamoureux and Adjudicator Punyarthi. We conclude that the LAT has jurisdiction under s. 7 of the LAT Act to extend the limitation in s. 56 of the SABS.
Standard of Review: Exercise of s. 7 Jurisdiction
[62] As stated above, s. 11(6) of the LAT Act restricts appeals to questions of law. Thus, having determined that s. 7 grants jurisdiction to extend the limitation under s. 56, the jurisdiction of this Court to determine whether that jurisdiction was properly exercised is also limited to questions of law.
[63] The circumstances in which findings of fact or the assessment of evidence may give rise to an error of law are limited. As stated by the Court in Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 at paras. 28-29:
There are limited circumstances in which findings of fact, or the administrative decision-maker’s assessment of evidence, may give rise to an error of law alone for the purposes of appeal. If the adjudicator ignored items of evidence that the law required him or her to consider in making the decision, then the adjudicator erred in law: Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748 at para. 41. Challenges to the sufficiency or weight of evidence supporting a finding of fact do not give rise to a question of law. An error in law or legal principle made during the fact-finding exercise, however, can give rise to an extricable question of law. A “misapprehension” of the evidence does not constitute an error of law unless the failure is based on a wrong legal principle: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 25 and 29. It is an error of law to make a finding of fact on a material point where the factual finding is based solely on (a) no evidence, (b) irrelevant evidence, or (c) an irrational inference (Johannson v. Saskatchewan Government Insurance, 2019 SKCA 52 at paras. 24-25).
If the adjudicator considered all the mandatory or relevant evidence, but reached the wrong conclusion, then the error is one of mixed law and fact. If the adjudicator erred in applying the law (the correct legal standard) to the facts, that is a matter of mixed law and fact: Southam Inc. at paras. 41-42.
A. Fratarcangeli and Ladouceur v. North Blenheim Mutual Insurance Company
[64] In the Reconsideration Decision of Vice-Chair Dawn J. Kershaw, dated May 10, 2019, the Respondents, Aldo Fratarcangeli and Nicole Ladouceur, were granted extensions of time to file their appeals from North Blenheim Mutual Insurance Company’s denials of their claims. North Blenheim appeals the Reconsideration Decision and asks that the prior LAT decision, denying the extensions, be restored.
Background
[65] The Respondents filed claims for accident benefits arising out of a March 24, 2014 motor vehicle accident. On April 30, June 11 and 17, and August 7, 2014, North Blenheim denied the claims filed by the Respondents.
[66] On March 24, 2016, the Respondents filed applications for mediation with FSCO, disputing North Blenheim’s denials of their claims.
[67] On May 19, 2016, the Applications for Mediation were dismissed because the Respondents had not confirmed mediation dates with FSCO. By that date, the LAT had assumed jurisdiction for the adjudication of automobile accident benefits, and on August 26 and September 9, 2016, respectively, the Respondents filed applications with the LAT, disputing North Blenheim’s denials of their claims.
[68] By way of preliminary hearing, in its decisions issued on April 7 and May 4, 2017, the LAT found that the Respondents’ claims were barred, having been filed beyond the two years permitted by s. 56 of the SABS.
[69] On a re-hearing, the LAT considered whether the Respondents should be granted an extension of time to file their applications pursuant to s. 7 of the LAT Act. In decisions dated August 21, 2018 and August 28, 2018, Adjudicator Robert Watt concluded that the Respondents had not satisfied the requisite test and did not grant an extension of time.
[70] On September 10, 2018, the Respondents filed requests for reconsideration with respect to the August 21 and 28, 2018 re-hearing decisions. In her Reconsideration Decision, Vice-Chair Kershaw overturned the re-hearing decisions and granted extensions of time to the Respondents.
Reconsideration Decision
[71] As a preliminary matter, Vice-Chair Kershaw concluded that there were significant errors of fact or law in the LAT’s re-hearing decisions, without which the LAT would have reached different decisions. On that basis, Vice-Chair Kershaw found that the Respondents were entitled to a reconsideration pursuant to s. 18.2(b) of the LAT’s Common Rules of Practice and Procedure (“Rules”).
[72] At the time, rule 18.4 of the Rules provided:
Upon reconsidering a decision of the Tribunal, the Executive Chair or his or her delegate may:
(a) dismiss the request; or
(b) after providing all parties with an opportunity to make submissions,
(i) confirm, vary or cancel the decision or order; or
(ii) order a rehearing on all or part of the matter.
[73] Vice-Chair Kershaw exercised her authority under r. 18.4 to grant the Respondents’ requests for reconsideration and to extend the time for filing their appeals.
[74] In her Reconsideration Decision, Vice-Chair Kershaw determined that the LAT erred in its application of the four factors outlined in Manuel v. Ontario (Registrar, Motor Vehicle Dealers Act) that ought to be considered when deciding whether to grant an extension of time under s. 7 of the LAT Act. Vice-Chair Kershaw then applied the four-part test to the evidence and concluded that extensions of time ought to be granted.
Grounds of Appeal
[75] North Blenheim seeks an order setting aside the Reconsideration Decision and confirming the re-hearing decisions.
[76] North Blenheim alleges that Vice-Chair Kershaw erred in law in that:
(1) she erred by applying s. 7 to extend the time limitation for SABS disputes;
(2) she improperly applied r. 18.2 and, as a result, lacked jurisdiction to grant a reconsideration of Adjudicator Watt’s decisions;
(3) she improperly applied the four-part test outlined in Manuel, by reversing the onus so as to require the Appellant to disprove the requisite elements of the test; and
(4) she misunderstood and misconstrued the evidence and the LAT’s legal analysis and relied upon irrelevant factors in her application of the four-part test.
Analysis
[77] Our finding that the LAT does have jurisdiction under s. 7 of the LAT to extend the time limit prescribed by s. 56 of the SABS addresses the first alleged error.
Did Vice-Chair Kershaw properly apply r. 18.2?
[78] In her Reconsideration Decision, Vice-Chair Kershaw concluded that the LAT had made significant errors of law or fact such that the tribunal would likely have reached a different decision if it had not erred. As Vice-Chair Kershaw’s findings apply also to her decision to grant the Respondents an extension of time pursuant to s. 7, these issues are addressed in our reasons respecting the exercise of her jurisdiction under s. 7.
[79] In oral submissions, counsel for the Appellant submitted that reconsiderations are “bogging down the system” and are “prolific” and that guidance from this Court on when and how reconsideration are to be conducted would be welcomed.
[80] We note that after the hearing in this matter was completed, this Court released a decision that offers guidance on how reconsiderations are to be conducted. In Beaudin v. Travelers Insurance Company of Canada, 2021 ONSC 1389 (Div. Ct.), at para. 57, confirming its earlier decision of Taylor v. Aviva Canada Inc., 2018 ONSC 4472 (Div. Ct.), at paras. 67-68, the Court confirmed that on a reconsideration, the LAT is not required to show deference to the original decision, nor to the original adjudicator’s factual findings.
Did Vice-Chair Kershaw properly exercise her jurisdiction under s. 7 of the LAT Act?
[81] The parties agreed that in deciding whether an extension of time should be granted pursuant to s. 7 of the LAT Act, the following four factors set out in Manuel are to be considered:
(1) that there was a bona fide intention to appeal within the time limit;
(2) the length of the delay;
(3) the prejudice to the other party; and
(4) the merits of the appeal.
[82] Vice-Chair Kershaw conducted her own analysis of the four-part test, making her own findings of fact. Her conclusions are summarized below.
(1) Did the Respondents demonstrate a bona fide intention to appeal within the time limit?
[83] Vice-Chair Kershaw found the LAT had erred in its conclusions on this issue. On her assessment of the evidence, Vice-Chair Kershaw found that the Respondents had continuously demonstrated their intention to appeal by:
(a) bringing their application to FSCO within the allowable statutory timeline;
(b) following up with the LAT and receiving assurances that their appeals were within time; and
(c) filing treatment plans with North Blenheim for further medical benefits on June 29, 2016, as well as the OCF-19 filed on August 25, 2016, to determine if a Respondent had sustained a catastrophic impairment.
[84] The Appellant submits that Vice-Chair Kershaw fundamentally misunderstood and misconstrued the evidence when she accepted as fact and relied upon the “unproven and unsupported multi-layered hearsay submitted by the Respondents” concerning information they had been given by an employee at the LAT that there was “an unwritten grace period” allowing appeals to be filed at the LAT beyond the two-year limitation period.
[85] As our jurisdiction on this appeal is limited to reviewing errors of law, we are not entitled to review the findings of fact, or mixed findings of fact and law, made by Vice-Chair Kershaw. Inferences drawn from findings of fact raise issues of mixed fact and law. They are not reviewable by this Court. As stated in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at paras. 22-23, if there is evidence to support the facts as found by the decision-maker, it is not the role of the appellate court to “second-guess” the weight to be given to the evidence nor to interfere with the inferences drawn from the facts as found.
[86] While the conclusions reached by Vice-Chair Kershaw on the evidence differed from the conclusions reached by the LAT, it was open to Vice-Chair Kershaw to make her own findings of fact, draw inferences based on those findings, and to conclude that the Respondents had met the first part of the four-part test.
[87] We see no basis to interfere with the decision of Vice-Chair Kershaw on this issue.
(2) Delay to be considered under s. 7
[88] In North Blenheim’s factum on this appeal, it acknowledges that the latest of the claims made by the Respondents were denied on August 7, 2014 and September 5, 2014. Those dates support the submissions made by the Respondents, referenced by Vice-Chair Kershaw, that the LAT erred when it found that the applications filed by the Respondents reflected a delay of between 1-5 months from the date on which the four claims were denied.
[89] It is clear from Manuel, at para. 26, that the delay to be considered is the delay in filing the appeal. Vice-Chair Kershaw considered the delay that occurred in the context of the FSCO mediation that did not take place, and the subsequent closure of FSCO’s file. She concluded that the LAT erred when, in determining the delay, it took into account that almost two years had elapsed between North Blenheim’s denial and the Respondents’ request for a mediation with FCSO. Vice-Chair Kershaw observed that the Respondents appealed the denials within the prescribed two-year timeframe and that the prior two years ought not to be considered in any assessment of delay.
[90] Vice-Chair Kershaw found that the LAT also erred in its assessment of the delay by considering the two-year hearing backlog that existed at FSCO, which meant that a hearing on the merits would not take place until four years after North Blenheim’s denials of the claims. Vice-Chair Kershaw considered all the evidence, including the lack of direction offered by FSCO, which had closed its file before a mediation had taken place, when she concluded that the Respondents had provided a satisfactory or reasonable explanation for their delay in filing their applications to the LAT.
[91] The Appellant submits that Vice-Chair Kershaw misunderstood Adjudicator Watt’s reasons and analysis on the issue of delay. We do not agree.
[92] In his decisions of August 21 and August 28, 2018, at paras. 30 and 31, under the heading “Length of Delay”, Adjudicator Watt states, in part, “if the applicant’s claims were to go forward to a hearing on the merits… the hearing would be taking place at least four years after the denials of the applicant’s claims.”
[93] Further, para. 37 of both decisions of Adjudicator Watt read, in part, as follows:
The respondent’s, (as well as the applicant’s evidence) evidence, if the application was allowed to proceed, may not now be available, or may not be able to be presented fairly and accurately, when presented, because of the time delay, witness availability, and witness memory as to the evidence collected over four years ago. [Emphasis added.]
[94] We find that Vice-Chair Kershaw did not err in law in her reading of the LAT’s decisions, and, in any event, her findings respecting delay raise an issue of mixed fact and law, which is not subject to appeal.
(3) Was there prejudice arising from the extension of the appeal period?
[95] Manuel (at paras. 31-32) makes it clear that the prejudice to be considered is the prejudice to the Appellant “as a result of the delay that would have resulted from the extension of the appeal period” and that the prejudice must go beyond the “general institutional need for respect of the rules and deadlines”.
[96] As referenced above, Vice-Chair Kershaw found that the LAT erred when it concluded that there would be prejudice if the extension of time were granted, based on its conclusion that a hearing on the merits would not occur for four years from the dates of the denials. Vice-Chair Kershaw found that the LAT, instead, ought to have considered “how much time elapsed between the expiry of the allowable time to appeal and the time the appeal was filed”. Vice-Chair Kershaw reasoned that only a limited extension of time was required from the date on which FSCO had “closed” their files to dates the Respondents filed their applications to the LAT, and that these extensions would not cause “new prejudice” to North Blenheim.
[97] While her use of the term “new prejudice” may have been a poor choice, we see no error in law in the approach taken by Vice-Chair Kershaw. It was open to Vice-Chair Kershaw to conclude that, for the purposes of assessing prejudice, the “delay” to be considered is that caused by the extension of the appeal period and not by the two years allowed to bring an appeal to FSCO, nor by the FSCO backlog.
[98] The approach taken by Vice-Chair Kershaw is consistent with the statement of the law at para. 45 of the Appellant’s factum that each case is fact-dependant and that “all relevant considerations are to be taken into account”.
[99] On this issue, we find no error of law was made by Vice-Chair Kershaw. The errors alleged are errors of fact or mixed fact and law, which, under s. 11(6) of the LAT Act are not appealable to this Court.
(4) The Respondents failed to establish the merits of the appeal
[100] Vice-Chair Kershaw concluded that the LAT made no error in its conclusion that it did not have the necessary facts before it to consider the merits of the Respondents’ claims.
[101] We accept the submissions set out in the Appellant’s factum that all four aspects of the test in Manuel are to be taken into account but that no one aspect necessarily has priority.
[102] The factors set out in Manuel are based on the earlier Ontario Court of Appeal decision in Frey v. MacDonald, [1989] O.J. No. 236 (C.A.). At p. 2 of Frey, the Court states that the factors are “subject to a broader rule that extensions should be granted if the ‘justice of the case’ requires” it, citing Miller Manufacturing and Development Co. v. Robert J Alden et al., (1979) 13 C.P.C. 63 (Ont. C.A). More recently, in Laski v. Laski Estate, 2016 ONCA 337, at para. 26, the Court reiterated this overarching principle and confirmed that all relevant considerations are to be taken into account.
[103] It was not an error in law for Vice-Chair Kershaw to grant an extension under s. 7 despite having found that the Respondents did not establish the merits of their appeal. While this factor may not have been satisfied, consistent with the principles found in Laski Estate, this one factor cannot prevail against all the other relevant considerations that are to be taken into account.
Allegations of Breach of Natural Justice and Procedural Fairness
[104] Vice-Chair Kershaw accepted the Respondents’ evidence that, after FSCO had closed its file, they called the LAT in July and in September 2016, and were told by someone from the LAT that because of the transition from FSCO to the LAT, the 90 day rule to apply for arbitration after a failed mediation did not apply. Vice-Chair Kershaw concluded that the Adjudicator erred in relying on the absence of a written confirmation of this telephone call, when “it is likely no written confirmation could in fact exist”.
[105] The Appellant argues that Vice-Chair Kershaw erred when she accepted the Respondents’ evidence concerning this “undocumented telephone call with an anonymous LAT employee”.
[106] This allegation involves no error of law; rather, it is an allegation of an error of fact or of mixed fact and law, which is not appealable.
Disposition
[107] For the reasons set out above, we dismiss this appeal.
Costs
[108] As agreed between the parties, costs are awarded to the Respondents in the amount of $3,000, inclusive of fees, disbursements and all applicable taxes.
B. Reardon v. Royal & Sun Alliance
[109] In this case, Royal & Sun Alliance Insurance Company of Canada (“RSA”) appeals from the decision of the LAT Adjudicator, Nidhi Punyarthi, dated July 12, 2019, who applied s. 7 of the LAT Act and granted an extension to the Respondent, Leonard Reardon, to file a dispute of RSA’s denial of his application for income replacement benefits (IRB’s) and attendant care benefits (AC).
[110] Mr. Reardon was in a motor vehicle accident on March 13, 2014, and applied to RSA for IRB’s and AC. The IRB’s were terminated effective March 25, 2015, and the AC was terminated effective March 1, 2015.
[111] Mr. Reardon was found to lack capacity on June 15, 2016. On October 5, 2016, Mr. Reardon’s wife was appointed as his litigation guardian for financial decisions only. On January 13, 2017, she was appointed as litigation guardian in relation to Mr. Reardon’s accident benefits claims.
[112] Through his litigation guardian, Mr. Reardon applied to the LAT to dispute RSA’s denials on April 9, 2018. This application was brought more than two years after the termination of the IRB’s and AC.
[113] The Decision was limited to the preliminary issue of whether Mr. Reardon’s application to the LAT was barred pursuant to s. 56 of the SABS.
The Decision
[114] Adjudicator Punyarthi concluded that more than two years had passed between the dates of the denied benefits and the date on which Mr. Reardon’s application was filed. Exercising her discretion under s. 7 of the LAT Act, Adjudicator Punyarthi granted Mr. Reardon an extension of time to April 9, 2018, to file his application.
[115] Adjudicator Punyarthi also concluded that the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, did not apply.
The Nature of the Appeal
[116] RSA raises a number of grounds of appeal. Our finding that the LAT has jurisdiction to extend the time limits, pursuant to s. 7 of the LAT Act, applies to this case. We do not repeat our reasons for that finding, which are set out above.
[117] We group the remaining grounds under two main issues:
Did Adjudicator Punyarthi err by concluding that she could not consider the Limitations Act?
Did Adjudicator Punyarthi err in law when she granted the extension of time:
(i) by misconstruing the evidence and making incorrect and unreasonable legal inferences from those facts, which led her to find that:
(a) Mr. Reardon had a bona fide intention to apply to dispute the denial of his benefits within the prescribed time;
(b) there was no evidence of prejudice to RSA by reason of Mr. Reardon’s failure to appeal his disputes within the limitation period; and
(c) there was “some merit” to Mr. Reardon’s application?
(ii) by improperly relying upon irrelevant factors in her decision and failing to apply the LAT mandate to promote timely and efficient resolution of SABS disputes when she assessed prejudice to RSA?
Analysis
[118] RSA submits that Adjudicator Punyarthi erred in concluding that the Limitations Act did not apply to applications before the LAT.
[119] The relevant portions of paras. 7 and 8 of the Limitations Act are as follows:
- (1) The limitation period established by section 4 does not run during any time in which the person with the claim,
(a) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and
(b) is not represented by a litigation guardian in relation to the claim.
- If a person is represented by a litigation guardian in relation to the claim, section 5 applies as if the litigation guardian were the person with the claim.
[120] Mr. Reardon sought to persuade Adjudicator Punyarthi that the Limitations Act should apply and, in particular, that it should operate to suspend the running of the limitation period while Mr. Reardon was incapable. Early in the Decision, Adjudicator Punyarthi made it clear that she was not persuaded by this argument but was prepared to consider Mr. Reardon’s mental status in her exercise of her discretion under s. 7 of the LAT Act.
[121] At para. 12 of the Decision, Adjudicator Punyarthi stated that s. 7 of the LAT Act allows her to “analyze whether an applicant’s time to apply to the Tribunal should be extended in appropriate circumstances, such as a legal disability”.
[122] While she did consider the four factors set out in Manuel in the Decision, Adjudicator Punyarthi applied the “broader rule” as set out in Frey, and approved of in Manuel, that extensions should be granted if the “justice of the case” requires it.
[123] Adjudicator Punyarthi found that in exercising her discretion under s. 7 she was permitted to inquire into the context of the case and to evaluate the grounds upon which the request for an extension was based and, if she was satisfied that reasonable grounds existed, to grant an extension of time (Decision, at para. 13).
[124] Consistent with Frey, Adjudicator Punyarthi found that the four factors set out in Manuel were not “strict elements that must all be met” but that they served as a guide to assist in determining “what is just and appropriate in each particular case” (Decision, at para. 15). That contextual approach guided Adjudicator Punyarthi in her application of the four-factor analysis to the facts as she found them.
[125] Adjudicator Punyarthi’s findings and conclusions are set out below.
(1) Length of delay
[126] Adjudicator Punyarthi considered the following timeline of events:
(a) on June 15, 2016, just over one year after his benefits were denied, Mr. Reardon was assessed as mentally incapable;
(b) on October 5, 2016, Mr. Reardon’s wife was appointed by court order as his litigation guardian in the court action;
(c) on January 13, 2017, Mr. Reardon’s wife applied to be his litigation guardian in the FSCO proceeding; and
(d) on March 9, 2018, Mr. Reardon’s wife swore an affidavit consenting to act as his litigation guardian in the proceeding before the LAT.
[127] Adjudicator Punyarthi found that the timeline of events provided an explanation for Mr. Reardon’s delay. She inferred that between June 15, 2016, and March 9, 2018, Mr. Reardon, through his litigation guardian, was preoccupied with his court action and then with the FSCO proceeding (related to benefits other than those that were the subject of the LAT application).
[128] Adjudicator Punyarthi made the finding that the court order of October 5, 2016 did not enable Mr. Reardon’s wife to represent him in all matters; she was required to follow a different and separate procedure to be appointed for each matter, which took time. In addition, Adjudicator Punyarthi inferred that the one-month delay between when Mr. Reardon’s application to the LAT was prepared and the date on which it was filed was caused by administrative reasons.
[129] Based on her view of the undisputed chronology of events, Adjudicator Punyarthi concluded that Mr. Reardon had adequately explained his delay in filing his appeal: he and his litigation guardian were preoccupied by the “various legal proceedings” and the requirements they imposed on Mr. Reardon’s wife, as his litigation guardian.
[130] This is a determination of fact, or at best mixed fact and law. It is not an issue of law. No appeal lies to this Court from this determination.
(2) Bona fide intention to appeal within the time period
[131] In determining that Mr. Reardon had formed a bona fide intention to apply within the time period, Adjudicator Punyarthi considered that Mr. Reardon’s wife took only a few months, after being appointed to represent Mr. Reardon in that matter, to file forms to commence a FSCO proceeding.
[132] Adjudicator Punyarthi concluded that it was reasonable for her to infer from the other litigation steps taken, including Mr. Reardon’s application to FSCO related to other denials, that Mr. Reardon had a bona fide intention to apply to dispute RSA’s denial of the IRB’s and AC but that his incapacity and dependence on his litigation guardian prevented him from applying in a more timely manner.
[133] The Appellant takes issue with that inference.
[134] Based on the record before us, it is clear that there was evidence before Adjudicator Punyarthi upon which to base her findings of fact and the inferences she drew from those findings. As her findings of fact or the inferences she drew from them raise issues of mixed fact and law, no appeal lies to this Court from those findings.
(3) Prejudice to RSA
[135] The Decision includes only one paragraph under this part of the test – paragraph 26 – which begins with Adjudicator Punyarthi’s conclusion that she was not persuaded by the submissions made by RSA that it would be prejudiced if Mr. Reardon were permitted to proceed with his dispute. It is clear from Manuel that the onus was on Mr. Reardon to establish that he had met the four-part test and that it would be an error in law to reverse that onus. Had her reasons on this issue ended there, a question would arise as to whether Adjudicator Punyarthi had improperly reversed the onus to require RSA to prove prejudice.
[136] However, in the final sentence of the same paragraph, Adjudicator Punyarthi stated that she agreed with Mr. Reardon that there was no prejudice to RSA. That conclusion recognized that the onus was on Mr. Reardon to establish that there was no prejudice to RSA arising from the extension of time. Adjudicator Punyarthi’s conclusion that RSA has suffered no prejudice appears to be based on her finding that RSA has access to the documentary record that was created to assess and deny the benefits and that relevant witnesses would be available to testify and to refer to the documents, to assist with memories, as required.
[137] Notwithstanding the limited analysis conducted by Adjudicator Punyarthi, we cannot conclude that there was no evidence on which to base her finding that Mr. Reardon had satisfied his obligation to show that RSA would not be prejudiced if he were granted an extension of time to file his application. Accordingly, we find that Adjudicator Punyarthi made no error of law on this issue.
(4) Merits of the application
[138] Paragraph 27 is the only place in the Decision that makes reference to the issue of the merits of the application. In the first sentence, Adjudicator Punyarthi arguably seemed to have placed the onus on RSA to establish that Mr. Reardon’s application had no merit. While, again, the Decision is lacking in detail that would have been helpful for our analysis, Adjudicator Punyarthi did state in her reasons that, on the evidence before her, the benefits were denied by RSA only on the basis of its assessments. She noted that Mr. Reardon disputed both the denial of benefits and the substance of RSA’s assessments. On that basis, Adjudicator Punyarthi concluded that there was some merit to the appeal.
[139] The conclusion reached by Adjudicator Punyarthi was based on the evidence before her and, on its face, raises an issue of mixed fact and law.
[140] When the Decision is read as a whole, it is apparent that Adjudicator Punyarthi applied the correct test for her conclusion that justice merited the exercise of her discretion under s. 7 of the LAT Act to extend the s. 56 limitation period. With respect to the remainder of the issues raised by RSA, they are questions of fact or mixed fact and law, and not appealable to this Court.
Did Adjudicator Punyarthi err by concluding that she could not consider the Limitations Act?
[141] We need not determine this issue given the factual findings of Adjudicator Punyarthi as to when Mr. Reardon’s wife was appointed to act as his litigation guardian in respect of the claims that are the subject of this appeal, and her determination that an extension of time should be granted after the appointment of Mr. Reardon’s litigation guardian.
Disposition
[142] For the reasons set out above, this appeal is dismissed.
Costs
[143] As agreed between the parties, the costs of this appeal are awarded to Mr. Reardon in the amount of $5,000, inclusive of fees, disbursements and all applicable taxes.
C. Sheway v. Certas Home and Auto Insurance Company
[144] This appeal is brought by the insured, Saleh Sheway, from the Reconsideration Decision of Adjudicator Deborah Neilson dated September 5, 2019.
[145] Adjudicator Neilson heard a request for reconsideration, brought by the insurer, Certas Home and Auto Insurance Company, from the preliminary issue decision of the LAT dated September 24, 2018. The LAT exercised its discretion to extend the limitation period and to allow Mr. Sheway to dispute the denial of his claim for non-earner benefits and attendant care benefits and a neurological assessment.
[146] Adjudicator Neilson did not disturb the LAT’s conclusions that Mr. Sheway was barred from bringing his application by operation of s. 56. However, she found that the LAT had erred in law in determining that it had discretion under s. 7 to extend the time to bring the application. Given that determination, Adjudicator Neilson chose not to consider the alternate argument put forth by Certas that the LAT had erred in the exercise of its discretion under s. 7.
Disposition
[147] As we have found that the LAT does have jurisdiction under s. 7, we grant the appeal and direct that this matter be returned to Adjudicator Neilson so that she might consider and determine whether the LAT properly exercised its discretion under s. 7.
Costs
[148] As agreed between the parties, the costs of this appeal are awarded to Mr. Sheway in the amount of $7,500, inclusive of fees, disbursements and all applicable taxes.
Lederer, J.
Penny, J.
Sheard, J.
Released: June 15, 2021
CITATION: Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997
DIVISIONAL COURT FILE NOS.: 317/19; 429/19; 532/19
DATE: 20210615
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lederer Penny Sheard JJ
BETWEEN:
ALDO FRATARCANGELI and NICOLE LADOUCEUR
Applicants (Respondents in Appeal)
– and –
NORTH BLENHEIM MUTUAL INSURANCE COMPANY
Respondent (Appellant)
AND BETWEEN:
LEONARD REARDON
Applicant (Respondent in Appeal)
– and –
ROYAL & SUN ALLIANCE INSURANCE COMPANY OF CANADA
Respondent (Appellant)
AND BETWEEN:
SALEH SHEWAY
Appellant
– and –
CERTAS HOME AND AUTO INSURANCE COMPANY
Respondent
– and –
LICENCE APPEAL TRIBUNAL
Intervenor
REASONS FOR JUDGMENT
Released: June 15, 2021