Facts
D.C. (the applicant) was involved in an automobile accident on August 24, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule (the SABS). Eventually, certain medical benefit claims were denied by Economical Insurance (the respondent).
On June 3, 2020, the applicant passed away due to causes unrelated to the accident. On February 25, 2022, applicant’s counsel applied to the Licence Appeal Tribunal (the Tribunal) for resolution of the dispute. The Tribunal was also unaware the applicant was deceased. At the case conference held on December 20, 2022, applicant’s counsel informed the respondent and the Tribunal that the applicant was deceased, and that the applicant’s spouse would be in attendance on the applicant’s behalf. However, neither applicant’s counsel nor the respondent had documentation in their possession regarding the applicant’s will, estate, or named beneficiary. Because of this, the applicant’s request to adjourn the case conference to allow time to gather the necessary documentation was denied. The Tribunal’s reasoned that the applicant passed away on June 3, 2020, and the application was submitted on February 25, 2022, thus applicant’s counsel had more than nine months to request the documentation from the applicant’s family. Although no estate trustee was appointed to act on behalf of the deceased applicant, the application proceeded to a written hearing on September 8, 2023. Applicant’s counsel filed written submissions, and the respondent filed responding submissions and evidence.
Procedural issue
The respondent raised a procedural issue, submitting that since the applicant was deceased and no estate trustee was appointed, the application was not legally viable, and the application was not properly commenced. In response, applicant’s counsel submitted that the issue raised by the respondent could not be considered as it was not addressed at the case conference, and that raising this issue at this stage was indicative that the respondent was acting in bad faith. Applicant’s counsel further submitted that dismissing the application would be highly prejudicial and denied that the application was not properly commenced.
Issue
Was the application properly commenced?
Outcome
The application was dismissed, and the Adjudicator Jarda held that it was unnecessary to consider the deceased applicant’s entitlement to the disputed treatment plans, interest, and an award.
Reasoning
Adjudicator Jarda found that the application brought before the Tribunal in the name of a deceased applicant was not properly constituted, that it was “an irremediable nullity”, and that to continue the proceeding in the circumstances would be “an abuse of process.”
To support her reasoning,Adjudicator Jarda relied on Toma, where an application for arbitration was commenced by a deceased insured’s counsel. While the insured’s widow attended the pre-hearing discussion, it was agreed that the process could not continue until an administrator or representative of the insured’s estate was appointed. Further, in Wentzel, an application was commenced by theinsured’s representative after the insured passed away, with no estate trustee having been appointed. Because there was no evidence that anyone had undertaken to administer the insured’s estate, the arbitrator concluded that the legal proceeding had not properly been constituted and dismissed the application.
While applicant’s counsel argued that the application to the Tribunal had been commenced to protect the limitation period, no explanation was provided as to why no Estate Trustee was appointed between June 3, 2020 (date of death) and February 25, 2022 (date of application). Further, there was no evidence to support that anyone had been appointed to be an Estate Trustee to represent the applicant during this 262-day period.
The applicant’s surviving spouse had 1192 days to take steps to seek appointment as an estate trustee. As he had taken no steps to do so , Adjudicator Jarda found that he had opted not to pursue appointment as an estate trustee. There was also no evidence to support that the applicant’s counsel had standing to file written hearing submissions and evidence on the applicant’s behalf.
Takeaways
A deceased person has no standing to bring or pursue a claim for payment of accident benefits before the Tribunal, and in the absence of a lawfully authorized person to represent the deceased person’s estate ( such as an Estate Trustee), there is no legally viable way to pursue an arbitral proceeding before the Tribunal. Simply put, in the absence of an Estate Trustee (or other similar representative having been appointed), counsel would not be able to demonstrate that they were authorized to commence an application to the Tribunal.
Selina Ferenac is the author of this blog. If you have a question about this decision or a similar file, please contact Selina at 416-777-2811 ext 5295
