Is it too late?
In this recent decision, the Divisional Court overturned a previous Preliminary Issue Decision and Reconsideration Decision of the Licence Appeal Tribunal (“LAT”) that stated that an applicant was statute-barred from adjudicating entitlements to Non-Earner Benefits (“NEB”) due to the two-year limitation period.
Facts
Ms. Sharma sustained injuries following a motor vehicle collision on February 20, 2015. She subsequently claimed payment of Statutory Accident Benefits from her insurer, Allstate Insurance Company of Canada (“Allstate”).
Ms. Sharma received a letter from Allstate on March 10, 2016, advising that her NEB were being terminated.
On March 14, 2016, Ms. Sharma contested Allstate’s denial of the NEB by filing an application for mediation with the Financial Services Commission of Ontario (“FSCO”).
The mediation proceeding at the FSCO schedule did not occur within the legislatively mandated 60 days, and the applicant’s file was subsequently closed.
The Insurance Act, R.S.O. 1990, c. I.8, was amended shortly after on April 1, 2016, rendering exclusive jurisdiction to the LAT for all Statutory Accident Benefits.
On March 15, 2018, Ms. Sharma initiated an application to the LAT disputing Allstate’s denial of the NEB. This application was brought forward five days after the two-year statutory deadline commanded by section 56 of the Statutory Accident Benefits Schedule, O. Reg 34/10 (“SABS”).
Prior Decisions
The LAT rendered its judgment on June 26, 2019, stating that pursuant to section 7 of Licence Appeal Tribunal Act, S.O. 1999.c.12 (the “LAT Act”), the LAT must be satisfied that the applicant had provided reasonable grounds to extend the limitation period.
The LAT will look at the following four factors to determine if an extension should be granted.
- The existence of a bona fide intention to appeal within the appeal period;
- The length of the delay;
- The prejudice to the other party; and
- The merits of the appeal.
In this case, the LAT refused to exercise its discretion and ruled that the applicant was statute-barred from adjudicating entitlement to NEB.
The LAT emphasized that the applicant did not have a bona fide intention to appeal within the appeal period because confusion in the transition from the FSCO to LAT was not a valid excuse for the delay.
Moreover, the LAT found that five days was considered a significant delay attributable to the applicant.
In relation to the prejudice to the other party, the LAT determined that, although the prejudice to the applicant is significant in that it prevents her from receiving NEB, this position fails to take into consideration the prejudice suffered by the respondent in defending a claim that has been delayed for some time. The LAT focused on the entire length of the relationship, stating that the respondent will have to track down some evidence that was produced more than two years prior to the hearing.
Ms. Sharma made a request for reconsideration to the LAT, which was denied for essentially the same reasons.
Divisional Court
Standard of Review
Section 11(6) of the LAT Act provides that an appeal from a decision of the Tribunal may only be made on a question of law. Therefore, the standard of review on a question of law is correctness.
Issues
- Did the Tribunal apply the correct legal principle regarding the length of delay criterion?
- Did the Tribunal apply the correct legal principle regarding the prejudice criterion?
- Did the Tribunal err in finding that Ms. Sharma did not demonstrate a bona fide intention to appeal within the time limit?
Length of Delay
The Divisional Court ruled that the LAT erred in law by applying the incorrect principles in both the Preliminary Issue Decision and the Reconsideration Decision. The LAT focused entirely on the period starting with the date of the denial without considering the period starting from the expiry of the limitation period.
Ms. Sharma was entitled to have the LAT undertake an analysis based upon a delay of five days rather than 735 days.
The Prejudice
The Divisional Court referred to Fratarcangeli v. North Blenheim Mutual Insurance Company (at para 95) where the Court stated that it is clear that the prejudice to be considered is the prejudice to the Appellants “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”.
In this case, the LAT erred in focusing on the period dating back to Allstate’s denial of the NEB in considering the prejudice. The LAT ought to have considered the actual prejudice that resulted from a five-day delay in filing the application instead of the complete length of the relationship.
Bona Fide Interest
At the reconsideration hearing, Ms. Sharma submitted new evidence, namely an email from her counsel to Allstate dating March 8, 2018, which read, “Could you please advise if the client received NEB, if so, how much was paid to date and when was the denial date.” She argued that this demonstrated an intention to appeal.
The LAT has rejected this argument because the email was sent on the day the limitation period expired. Additionally, the LAT indicated that, since this email was not provided at the preliminary issue hearing, it would consider this email as a new argument at the reconsideration stage and would reject it.
The Divisional Court ruled that the latter position was an error of law. The LAT was required to consider Ms. Sharma’s new evidence when considering whether it should grant the reconsideration. As a result of the new evidence, the LAT was required to determine to what extent the Preliminary Issue Decision was altered or changed by the new evidence.
Decision
The Divisional Court granted Ms. Sharma’s appeal.
Conclusion
This decision serves as a helpful reminder that various factors should be considered when determining whether an applicant is statute-barred from applying for NEB. The two-year limitation period pursuant to section 56 of the SABS is not a line drawn in the sand, and each case will require a fact-based analysis.
