Executive Chair Lamoureux Says Request for Reconsideration at the LAT Must Precede Judicial Review

By Paul Irish May 17, 2018

This reconsideration of a License Appeal Tribunal (“Tribunal”) decision deals with the applicability of the Statutory Accident Benefits Schedule’s two-year limitation for an Applicant to dispute their entitlement to benefits. The Tribunal held that the limitation period applied and dismissed the application. The Applicant (“S.T.”) then requested a reconsideration of the Tribunal’s decision while, on the same day, also initiated an application for judicial review.

S.T.’s request for reconsideration was late, as it was not requested within 21 days as prescribed by the LAT’s Rules of Practice and Procedure (“Rules”).

On reconsideration, SLASTO Executive Chair Linda Lamoureux held that a party must request reconsideration before seeking judicial review. In doing so, she finds that a party must exhaust all alternative remedies before initiating an application for judicial review.

Facts

S.T. was walking across an intersection when she was  struck by a motor vehicle on September 12, 2008. As a result of her injuries sustained in the accident, S.T. began receiving accident benefits from Economical Mutual Insurance Company (“Economical”). This dispute specifically concerns two of those benefits: 1) attendant care benefits; and 2) housekeeping and home maintenance benefits.

These benefits were later terminated. Economical sent a letter and Explanation of Benefits to S.T. on August 26, 2010, advising that any attendant care or housekeeping and home maintenance benefits incurred more than 104 weeks  after the accident (September 12, 2010) would not be paid unless S.T. was determined to be catastrophically impaired. Economical included in its letter an Application for Catastrophic Impairment (“OCF-19”).

S.T. submitted an OCF-19 over four years later on May 13, 2015. Economical approved the application in November of 2015, thereby determining that S.T. was catastrophically impaired. S.T. then began submitting expenses for attendant care and housekeeping and home maintenance for expenses she incurred more the 104 weeks post-accident point. Economical refused to pay the benefits given its denial from August 26, 2010 and S.T.’s failure to dispute that denial within two years, as required by the Schedule.

Tribunal Decision

S.T. applied to the Tribunal, wherein Adjudicator Trojek  decided that S.T.’s application was time barred as she did not apply for mediation at the Financial Services Commission of Ontario (“FSCO”) within two years of Economical’s denial of benefits.

The Tribunal rejected S.T.’s argument that the two-year limitation period did not start to run before she was deemed catastrophically impaired. The Tribunal rejected her position based on jurisprudence from FSCO decision, Mayo v. Economical A14-008047 and the Ontario Court of Appeal decision of Sietzema v. Economical 2014 ONCA 111, namely, Mayo v. Economical. Further, the Tribunal held that the doctrine of discoverability does not apply in the statutory accident benefits context. Based on the above, the Tribunal dismissed S.T.’s application.

S.T. then concurrently sought judicial review and reconsideration.

Reconsideration Decision

On reconsideration, Executive Chair Lamoureux first raised the preliminary issue that the request for reconsideration was not filed by S.T. within the 21 days, as prescribed by the Tribunal’s Rules. In this case, S.T. did not request reconsideration until 42 days after the date of the Tribunal’s decision.

In explaining why they filed late, S.T.’s counsel advised that, upon receiving the Tribunal’s decision, they initially intended to apply for judicial review. However, after discovering the “developing body of case law with respect to judicial review of [Tribunal] decisions” they were prompted to seek reconsideration to “first exhaust all internal review options.” S.T.’s counsel filed her application for judicial review and request for consideration contemporaneously on October 19, 2017. S.T.’s counsel further pointed out, in explaining the reason for their delay, that there is nothing in the [LAT] Rules, Judicial Review Procedure Act, or the Rules of Civil Procedure requiring a party to first seek reconsideration before judicial review.

Executive Chair Lamoureux disagreed with S.T.’s position and asserted that the requirement for a party to exhaust all adequate alternative remedies before commencing a judicial review application is a well-established principle of administrative law. On that basis, Executive Chair Lamoureux did not see any reason to accept the late filing and refused the reconsideration on that basis.

Conclusion

The judicial review in this matter is still proceeding and there will be a decision from the Divisional Court which will presumably address both the substantive issue on the limitation question, and also the procedural question about whether a reconsideration is a necessary alternative remedy.  Executive Chair Lamoureux has articulated how the process must be followed within her cluster of tribunals at SLASTO. However, there are many tribunals in the province not falling within SLASTO that have specific provisions for reconsideration.  Where the reconsideration is identified to be an available optional remedy, and not a necessary route for appeal, it is going to be interesting to see how the Divisional Court views this issue. 

Paul Irish is a member of the Licence Appeal Tribunal practice group and the author of this blog. If you have any questions about this decision please contact Paul.

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