Administrative oversight and significant error of law result in rehearing order

January 31, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

A.F. v. North Blenheim LAT 16-002336
Decision Date: January 13, 2017
Heard Before: Linda P. Lamoureux, Executive Chair

RECONSIDERATION

EXTENSION OF TIME UNDER LAT ACT: administrative errors and failure to consider s. 7 of the LAT Act, which allows the Tribunal to extend the time “fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal.”; Tribunal made a significant error of law by failing to consider whether to grant an extension of time under s. 7 of the LAT Act.

This reconsideration deals with two decisions in separate cases that the LAT rendered under SABs.   In both those decisions, the Tribunal determined that the applications were statute-barred by the two-year limitation period in s. 56 of the Schedule.  Madam Lamouraux decided to reconsider both decisions on my own initiative.  For the sake of convenience, Madam Lamouraux dealt with them together in these reasons.

On September 6, 2017, Madam Lamouraux invited the parties to make submissions on the extent to which the Tribunal should have considered s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G before rendering its decisions.  That section permits the Tribunal to extend the time period for commencing a proceeding. The parties then made submissions on this issue.

For the reasons that follow, Madam Lamouraux was satisfied that the Tribunal made a significant error of law by failing to consider whether an extension of time should be granted under s. 7 of the LAT Act. Therefore, Madam Lamouraux issued a rehearing order on the issue of whether an extension of time should be granted.

The applicants, A.F. and N.L., were injured in a car accident on March 24, 2014. They each made a claim to North Blenheim for various types of benefits under the Schedule.  North Blenheim denied the claims at issue on June 17 and August 7, 2014 for A.F.; and on June 17, July 24 and August 7, 2014 for N.L. The two-year limitation period begins to run on the date that the claims are denied.

On March 24, 2016, the applicants each applied for mediation at the FSCO. This was within the then-applicable two-year statutory limitation period for commencing a mediation proceeding at FSCO. It was also approximately one week before the Tribunal assumed jurisdiction from FSCO over all new automobile accident benefit disputes commenced on or after April 1, 2016.

On May 5, 2016, FSCO sent a letter to the parties setting the mediation date for May 24, 2016. This date was set unilaterally by FSCO, given the “unprecedented volume of mediation applications received immediately prior to April 1, 2016.” The letter also stated that the mediation is deemed failed unless settlement is achieved within 60 days of filing the application. The parties agreed over the telephone to reschedule the mediation date, but failed to advise FSCO of their agreement. On May 19, 2016, FSCO notified the applicants that their file had been closed because the parties did not confirm the mediation date seven days in advance, as required.

Under the FSCO regime, which applied immediately before April 1, 2016, the Insurance Act and Schedule provided, in essence, that a proceeding to adjudicate a Schedule-related dispute must be commenced at FSCO within two years after the insurer’s refusal to pay the benefit claimed or, if one applied for mediation within that two-year period, within 90 days after the mediator reports to the parties.

As of April 1, 2016, the Tribunal now deals with all accident benefits disputes.  As the Tribunal does not have separate mediation and adjudication steps in its process, as did FSCO, the post-mediation 90-day grace period was eliminated from the Schedule.  This leaves only the requirement currently in s. 56 of the Schedule that a proceeding to adjudicate a Schedule-related dispute must be commenced with the Tribunal within two years after the insurer’s refusal to pay the benefit claimed.  If a mediation failed after April 1, 2016, the only option to have the dispute adjudicated was to commence a proceeding at the Tribunal.

FSCO advised the applicants on May 19, 2016 that their files were closed. The applicants applied to the Tribunal for dispute resolution on August 26, 2016, which was more than two years after North Blenheim had denied their claims.

On March 13, 2017, the Tribunal determined that the applications were statute-barred due to the two-year limitation period in s. 56 of the Schedule. The Tribunal referred to its previous decision in P.C. and State Farm, 2016 CanLII 106918, in which the Tribunal found that the 90-day extension from the FSCO regime applied to applicants whose limitation periods expired prior to April 1, 2016 but whose mediations failed after that date. However, in the present cases, the applicants commenced the proceeding at the Tribunal more than 90 days after FSCO informed the parties that it would be closing their files. The Tribunal noted that the applicants had not pointed to any authority that allowed it to extend the limitation periods beyond the 90-day extension.

In its decision, the Tribunal did not consider s. 7 of the LAT Act, which allows the Tribunal to extend the time “fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal.” At Madam Lamoureaux’s request, all parties have made submissions on the extent to which the Tribunal should have considered s. 7 of the LAT Act before rendering its decisions.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.