*Since the writing of this blog the decision has been affirmed in 2021 in ONSC 2997
In P.C. and State Farm, 2016 CanLII 106918 (ON LAT), the LAT found that section 281.1 (2) (b) of the Insurance Act still applied to claimants whose limitation periods expire prior to the transition date of April 1, 2016 but where the FSCO mediation failed after April 1, 2016. In P.C. and State Farm, the claimant filed for FSCO mediation within two years after the date of the insurer’s denial. The claimant applied for mediation prior to April 1, 2016, but the claimant did not file a LAT proceeding until after the two-year limitation period from the date of the insurer’s denial. Vice-Chair D. Gregory Flude found that the 90-day extension of time – previously codified in section 281.1 (2) (b) of the Insurance Act (a section that was repealed with Ontario Legislator’s changes to the Insurance Act on April 1, 2016) – was preserved in cases where the claimant filed for FSCO mediation prior to April 1, 2016. Vice-Chair Flude cited no case law in reaching his decision and did not comment on section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, which states as follows:
Extension of time
7 Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of the Tribunal under section 11 or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,
(a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and
(b) give the directions that it considers proper as a result of extending the time.
In A.F. v. North Blenheim Mutual Insurance Company, 2017 CanLII 87546 (ON LAT) (“North Blenheim”), Executive Chair Linda P. Lamoureaux commented on the analysis undertaken in P.C. and State Farm (albeit without making any conclusions as to whether this decision was correctly or incorrectly decided) as well as section 7 of the Licence Appeal Tribunal Act.
In North Blenheim, the claimants applied for FSCO mediation one week before the Ontario Legislator’s changes to the Insurance Act on April 1, 2016. On May 5, 2016, the parties received a notice that the FSCO mediation would be deemed as failed unless settlement was achieved within 60 days of filing the application for mediation. FSCO notified the parties that the mediation was scheduled for May 24, 2016. The parties agreed to reschedule the mediation but failed to notify FSCO. On May 19, 2016, FSCO advised the parties that the mediation file was closed.
The claimants waited until August 26, 2016 to commence their proceedings at the LAT.
In the original LAT decisions: 16-002336 v North Blenheim Mutual Insurance Company, 2017 CanLII 33674 (ON LAT) & 16-002606 v North Blenheim Mutual Insurance Company, 2017 CanLII 33690 (ON LAT), LAT Adjudicator Avvy Go found that the claimants’ LAT appeals were statute barred. Adjudicator Go found that the claimants failed to commence their LAT appeals within two years after the insurer’s denial; and, they failed to commence their LAT appeals within 90 days of the FSCO mediation that was deemed failed 60-days after the claimants filed their application for mediation.
On her own volition, and without a reconsideration request made by a party, Executive Chair Lamoureaux reconsidered the Adjudicator Go’s decisions. Executive Chair Lamoureaux referred the matters back to new hearings in finding that Adjudicator Go erred in failing to consider section 7 of the Licence Appeal Tribunal Act, and whether an extension of time should be granted to the claimants.
The insurer relied long-standing case law from the Superior Court of Justice and the Court of Appeal that stated that the two-year limitation period in accident benefits should be strictly applied. Executive Chair Lamoureaux found that the cases were “decided before there was express statutory discretion to extend the time for commencing a proceeding.”
North Blenheim, has been referred back to new hearings, While it is alarming to see decades of jurisprudence strictly applying limitation periods not followed by the Executive Chair, it is not surprising to see the circumstance in which this relief provision in section 7 of the License Appeals Tribunal Act is being applied. The government did not do a terribly effective job in working through transitions between FSCO and the LAT, especially as it related to mediation ceasing to be a prerequisite to commencing a proceeding. In North Blenheim, at the time of the of denials, mediation was required. Mediation was sought in a timely way, but because FSCO was anxious to end its mandate, it can be said that many applications for mediation near the end simply got deemed failed or withdrawn. Where that left some lack of clarity in the timing for applying for adjudication at the LAT, as was the case here, extending some latitude is not surprising. But for the lack of clarity in the use of mediation at FSCO and the implication on extending the time to adjudicate from the date of a failed mediation, we do not expect the same provision to be applied at the LAT on an ongoing basis.
Meredith Harper is co-chair of the firm’s Appellate Advocacy group, as well as a member of the License Appeal Tribunal group. If you have a question about this reconsideration or a similar file, please contact Meredith.