Belanger v. Intact Insurance Company provides clarification on section 64 of the Statutory Accident Benefits Schedule (SABS). It answers the question of whether documents which have already been disclosed and provided to an Applicant are required to be provided to their counsel if retained after the initial notice and disclosure.
The Respondent, Intact, requested reconsideration of a LAT decision where the Tribunal determined, as a preliminary issue, that the Applicant’s dispute for Income Replacement Benefits (IRB) was not statue barred pursuant to section 56 of the SABS. This request for reconsideration arose over a dispute as to when the limitation period for applying to the Tribunal to dispute the IRB expired.
The Applicant was injured in a motor vehicle accident on January 12, 2015 and contacted Intact Insurance for an application for accident benefits. The relevant facts are that Intact delivered an IRB denial letter to the Applicant dated March 26, 2015. In the initial LAT decision, the Tribunal found the letter was not delivered in accordance with section 64 of the SABS until February 15, 2019. Therefore, the two year limitation period for applying to the Tribunal to dispute the IRB denial did not expire until February 14, 2021. The Applicant submitted his application on November 27, 2019 and was therefore within the two year time limit, and the adjudicator found the Applicant could proceed to a hearing.
At the time the Applicant received the IRB denial, he was unrepresented. In the request for reconsideration, Intact
I argued that the Tribunal erred in fact, in determining the date in which the Applicants counsel was retained. It was June 15, 2015, not January 15, 2015. Intact also argued that the Tribunal erred in law in deciding the respondent was non-complaint with section 64 of the SABS until February 15, 2019, when the Tribunal found as a fact, that the respondent had delivered an adequate IRB stoppage letter to the Applicant on March 26, 2015.
In the reconsideration decision Vice Chair Louise Logan agreed with Intact, that the correct date the Applicants counsel was retained was June 15, 2015. Further, the adjudicator found it was an error of law to interpret section 64 of the SABS to find that an otherwise compliant notice must be delivered to counsel who is retained after the notice is delivered, for it to remain valid. There is no requirement to re-deliver a notice to counsel after an insured person retains counsel set out in section 64. This was a significant error and if the Tribunal had correctly interpreted section 64, the trigger date for the two year limitation period would have been March 26, 2015, meaning the application to dispute IRB submitted on November 27, 2019 would have been statute barred by the limitation period.
The key issue in the reconsideration decision was whether section 64 of the SABS requires a party who has already delivered documents, to re-deliver those documents if the applicant obtains counsel at a later date. The approach taken on reconsideration is consistent with the modern approach to statutory interpretation. There is no wording in section 64 to suggest that re-delivery of documents is required at the point when counsel is retained. Requiring all notices sent to an unrepresented person to be resent to their counsel, once retained, with a new limitation period starting on that date is an incorrect interpretation of section 56 and 64 of the SABS.
In conclusion, the Respondent’s request for reconsideration was granted and the Tribunals decision from October 26, 2021 was varied. The IRB denial letter delivered to the Applicant on March 26, 2015 was in compliance with section 64 of the SABS and therefore started the two year limitation period under section 56. The Applicant was statute barred from proceeding with his application.
Connor Elliot is an articling student at ZTGH and author of this blog. If you have a question about this decision or a similar issue on a file, please reach out to Connor at 416-777-2811 ext 5302 or email@example.com