Canada: The Extension Of Limitation Periods At The Licence Appeal Tribunal

In A.F. v. North Blenheim Mutual Insurance Company,¹ the Executive Chair of the Licence Appeal Tribunal (LAT) reconsidered two decisions where the Tribunal applied the two year limitation under s.56 of the SABS and dismissed the claims as statute barred.

The Executive Chair on her own initiative held that it was a significant error of law for the Tribunal not to consider s.7 of the Licence Appeal Tribunal Act² (LAT Act) and sent both matters back for a hearing on the application of s.7, which states as follows:

In her decision, the Executive Chair highlighted that the Tribunal, in determining whether to grant an extension of time under s.7 of the LAT Act, generally weighs the following four factors to determine whether the case is one that warrants an extension to be granted:

1. The existence of a bona fide intention to appeal within the appeal period;
2. The length of the delay;
3. Prejudice to the other party; and,
4. The merits of the appeal [challenge of insurer's denial].

An extension of a limitation period was not available under the FSCO regime and the question at the time of the A.F. v. North Blenheim decision was the circumstances at which the LAT would apply s.7 to relieve against missed limitation periods.

There have since been three decisions that have applied s.7 and these decisions provide insight into the application of s.7 for SABs disputes at the LAT.

D.A. v. Aviva Insurance Canada

The first decision on this issue after A.F. v. North Blenheim was D.A. v. Aviva Insurance Canada.³ In that case, a preliminary issue was raised by the insurer that the applicant was statute barred pursuant to s.56 of the SABS from appealing the insurer's refusal to pay non-earner benefits (NEBs).

The Tribunal ultimately found that the applicant filed the appeal in time and was not statute-barred.

Nevertheless, the Tribunal went on to consider the application of s.7, which the adjudicator noted allows the Tribunal to extend the time for filing an appeal of a denial of benefits beyond the limitation period if the Tribunal is satisfied that there are reasonable grounds to do so.

The Tribunal noted the four factors as set out in A.F. v. North Blenheim and found that the applicant would meet the four-part test for a s.7 extension if one were necessary.

In this regard, the Tribunal stated that the applicant was involved in the dispute resolution process (at FSCO, prior to filing an Application at the LAT) and, therefore, had a bona fide intention to file an appeal within the appeal period.

Furthermore, the Tribunal found that the (at most) five week delay was not lengthy and the Tribunal also highlighted that there was no claim by the insurer that proceeding with the appeal would result in prejudice.

In terms of the last factor to consider, the Tribunal stated that the insurer did not challenge the merits of the appeal and, therefore, the Tribunal had no reason to doubt the NEB appeal warranted a hearing on the substantive evidence.

The Tribunal ultimately found that, while it was unnecessary to invoke s.7, the applicant's claim for NEBs nevertheless met the criteria for granting an extension.

17-004874 v. Economical Mutual Insurance Company

More recently, in 17-004874 v. Economical Mutual Insurance Company,⁴ the insurer similarly raised a preliminary issue that the applicant was barred from filing an application with respect to her claim for NEBs since the application was not filed within two years of the insurer's denial.

In that case, the applicant was a minor and the insurer denied her NEBs on February 7, 2012. The applicant turned 18 in November 2014 but did not file an Application with the LAT until July 20, 2017, which is more than two years after the claimant turned 18 years old.

On the issue of extending the limitation period, the Tribunal noted that the overriding consideration on a request for an extension of time is whether the justice of the case requires such an extension.

In addressing the first factor, the Tribunal found that the applicant did not have a bona fide intention to appeal within the appeal period a she had an opportunity to appeal from February 7, 2012 (the date of the denial) to November 16, 2016 (the day she turned 20 years old).

The Tribunal stated that an intention to appeal is an intention to commence a proceeding at the LAT and "anything short of taking steps to commence a proceeding to the Tribunal" does not "amount to satisfying the first factor in determining the test of whether an extension of time shoulder be granted under s.7 of the LAT Act."

In terms of the delay, the Tribunal held that the eight month delay in the applicant filing her application was not a reasonable period of time in the circumstances of the case.

The Tribunal also found that prejudice to the insurer outweighed that of the applicant as the applicant had not identified the prejudice that would be suffered by the applicant. In this regard, while the applicant suggested that the Tribunal can compensate the insurer with a cost award to remedy the prejudice, the Tribunal stated that this is not grounds for issuing a cost award at the LAT.

Finally, the Tribunal held that, even if it were to find the applicant's NEB claim has merit, a consideration of all of the factors together with the facts of the case result in a finding that the justice of the case favours not extending the limitation period.

Conclusion

The above cases highlight that s.7 of the LAT Act is indeed available to be applied in accident benefit disputes at the LAT and has been applied to extend a limitation period.

Nevertheless, the most recent decision on this issue demonstrates that the applicant must establish that the justice of the case requires the granting of an extension of a missed limitation period.

Insurers should ensure that they provide evidence on all four factors as both cases include findings largely based on a lack of evidence.

In addition, insurers should be aware of s.7 and be prepared to raise the limitation period issue at the LAT case conference and to ask for a preliminary issue hearing on the issue as soon as possible. If the insurer is successful at a preliminary issue hearing, a hearing on the merits is ultimately not necessary on that issue.

Footnotes

[1] 2017 CanLII 87546 (ON LAT).

[2] S.O. 1999, c. 12, Sch. G.

[3] 2018 CanLII 39443 (ON LAT)

[4] 2018 CanLII 83515 (ON LAT)

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