Section 7 of the LAT Act is gaining traction in post-FSCO accident benefits litigation at the LAT. Three decisions released in May illustrate the provision’s versatility in working around the limitation defense. As established in A.F. v North Blenheim Mutual Insurance Co., 2017 CanLII 87546 (ONLAT), the Tribunal has jurisdiction “to extend the time for giving the notice either before or after the expiration of the limitation of time” where there are reasonable grounds to do so. In Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (CanLII), the Divisional Court stated that the overriding consideration is whether the justice of the case requires that the extension be granted. The factors to be considered in making this determination are: the existence of a bona fide intention to appeal; length of the delay; prejudice to the other party; and the merits of the appeal. All four factors do not need to be satisfied.
The Tribunal’s consideration of the four factors set out in Manuel v. Registrar shed light on what evidence are deemed reasonable grounds for an extension to be granted. The most obvious of the four factors is the length of the delay . In the case of A.O. and Unifund Assurance Company 18-003798/AABS, Adjudicator Lindsay Lake determined that the applicant had no bona fide intention to appeal in that she withdrew the first LAT Application (filed in a timely manner) only to file a second LAT Application past the limitation date. She determined however that the delay of seven business days is extremely minimal and that no evidence was identified by the insurer of prejudice that arose against it within that time. On these findings, she allowed the application to proceed. As such s7 of the LAT Act acted as a saviour for the otherwise limitation barred claim.
This is not to say that the factor only works for delays that span a matter of days.. The consideration of delay should be a consideration of how much time elapsed between the expiry of the allowable time to appeal and the time the appeal was filed. This was the rule stated in the (second) reconsideration decision of A.F. v. North Blenheim Mutual Insurance Company 16-002336/AABS and N.L. v. North Blenheim Mutual Insurance Company 16-002606/AABS. By way of background, the two applicants submitted requests for reconsideration of the initial preliminary issue decisions which found their claim to be statute barred. A re-hearing was ordered by the Tribunal. On the re-hearing, the Tribunal again found the applicants’ claims to be statute barred. The parties sought yet another reconsideration resulting to the current decision. This time, Vice- Chair Dawn Kershaw did not fault the claimants for the alleged four year delay initially caused by FSCO’s mediation process. She determined that the Tribunal erred in finding substantial delay when the applicants filed their applications to FSCO within the allowable time but was caught in the confusion on what steps to take when FSCO “closed” their files upon their failure to confirm mediation dates. Per her calculation, the LAT Applications that were subsequently filed were no more than three months late from the two year limitation. Once again, unlike at FSCO and the courts, where a day late is still late, and there is no relief from forfeiture of a limitation, the LAT has broadly applied its relief from forfeiture remedy to allow a 3 month late application to proceed.
In contrast, Adjudicator Sandeep Johal found that five years was too long a delay to be excusable in C.D. vs. Aviva Insurance Canada 2019 ONLAT AABS. Notably the applicant in this case did not make any submissions on section 7. The adjudicator undertook the relevant analysis in response to the insurer’s submissions. He acknowledged the applicant’s legal action against her former counsel for negligence for not appealing the IRB denial before the limitation date but ultimately found no evidence from the applicant on any bona fide intention to appeal within the limitation period.
The cases tell us three things. First, that adjudicators are increasingly taking section 7 and the four factors in Manuel v. Registrar into consideration even when it is not relied on by the appellant. Second, that adjudicators are inclined to grant an extension without all four factors satisfied. Third, when calculating the length of the delay, one must look at how much time elapsed between the expiry of the allowable time to appeal and the time the appeal was filed (as opposed to the date of the denial and the date of the hearing). Ultimately, success in obtaining an extension under section 7 is heavily driven by facts. To the insurer, clear evidence of prejudice within the period of delay could go the distance. That said, lack of prejudice was never a factor to extend the time when a limitation was missed at FSCO. To the insured, if the length of delay is too long, evidence of a bona fide intention to appeal in the period before the limitation might suffice. To all, there is nothing like a good old tickler system that could avoid all these limitation challenges in the first place.
Sharla Bandoquillo is author of this blog and member of the Licence Appeal Tribunal practice group. If you have a question about these decisions or a similar file, please contact Sharla at 416-777-5243
