The Covid-19 Emergency Orders and the Implications on Limitation Defences: A Discussion by Arijana B. Schrauwen
Feb 22, 2021
In a recent motion, the insurer was successful in arguing that the LAT did not have jurisdiction to grant relief under section 7 to extend the limitation period for med-rehab issues that were out of time.
In this motion, Adjudicator Mazerolle was asked to determine whether two treatment plans and IRBs were statute barred for being outside the two-year limitation period.
The Applicant relied on A.F. v. North Blenheim Mutual Insurance Company and S.S. v. RSA Insurance, which concluded that s. 7 allows the Tribunal to remedy violations of the Schedule’s two-year limitation period, the applicant then went on to argue that the four factors enumerated in North Blenheim are met in this case.
First, they argued there was a bona fide intention to appeal these denials within the appropriate timeline, but there was a clerical error that led to the application not being filed with the Tribunal until May 2020. Evidence of this clerical error is a Tribunal application form dated November 6, 2019.
Second, the length of the delay was not significant (if one accepts the applicant’s timeline), as the longest gap between a denial and the filing is less than three months. Therefore, considering the adjudicator in 17-005601 v. Aviva Insurance Company of Canada did not find a delay of over three months to be excessive for the purposes of s. 7, the present delays are reasonable.
Then, when considering the prejudice to the insurer, the applicant submitted that there is effectively no prejudice, due to the fact that the insurer has always possessed all of the relevant medical information needed to understand her case.
Finally, the Tribunal must then consider whether the applicant has a reasonable chance of success on the merits of the case. According to the applicant, the Tribunal has previously answered this factor in the affirmative when an applicant intends on challenging the substance of an insurer’s assessments.
In response, the insurer argued challenged the applicant’s requested waiver of limitations by citing M.K. v. T.D. General Insurance Company. According to the insurer, M.K. v TD stands for the proposition that Ontario Regulation 73/20 to the Emergency Management and Civil Protection Act (the “Limitations Regulation”) is only engaged when a party is able to establish that “the COVID-19 Pandemic contributed or caused the delay in filing.” Without this evidence, the applicant cannot rely on the Limitations Regulation.
Additionally, regarding the treatment plans, the insurer argued that the applicant’s position on s. 7 of the LAT Act is not supported by recent case law. That is, competing decisions about s. 7 has been moving decidedly toward the view that this discretionary power does not apply to late Tribunal applications, most notably Adjudicator Neilson’s ruling in S.S. v. Certas Home and Auto Insurance Company in which she explicitly challenged the holding from North Blenheim.
In his decision, Adj. Mazerolle found the applicant was entitled to pursue her claim for an IRB as the limitation period was suspended before the two-year mark due to the Limitations Regulation. In coming to this decision, Adj. Mozerolle did not find the reasoning in M.K.to be persuasive. Specifically, though the adjudicator in the M.K. decision stated that he could not apply the Limitations Regulation without evidence that the pandemic “contributed or caused” to the late filing at issue, Adj. Mazerolle could see no support for this interpretation. He found Section 2 of the Limitations Regulation to be clear in stating that any and all requirements to act within a certain period of timeframe within the province of Ontario were suspended as of March 16, 2020. This clear language provided no indication that there is a need to establish the pandemic “contributed or caused” the late filing. Rather, the freeze is automatic, and it was in place at the time the applicant filed her application with the Tribunal.
In Adj. Mazerolle’s perspective, putting this evidentiary burden on a party seeking to avail itself of this limitation freeze would be at odds with the clear purpose of this emergency regulation.
With respect to the treatment plans in dispute, Adj. Mazerolle was satisfied that he did not have the authority to use s. 7 of the LAT Act to extend the limitation periods for the two treatment plans that were filed following the two-year mark. The Legislature could have expanded s. 7 to capture regulations, but it chose not to. Put another way, the Legislature’s decision not to amend s. 7 during the transfer of the SABS to the Tribunal was a recognition that the intended non-application of this remedy was already in place, and so there was no need to change this provision.
Therefore, Adj. Mazerolle concluded, if the Legislature intended the SABS to be captured under s. 7 of the LAT Act by way of the Insurance Act, an amendment could have been made to use the more expansive language of s. 6(6).
The result of this motion is important in two ways. First, it confirms the LAT’s position that it is not entitled to extend limitation periods under s. 7. This issue will be further clarified with the release of a reserved decision of the Divisional Court following its hearing of the appeals in AF v North Blenheim, SS v Certas and LR v RSA, heard together on February 19, 2021. But additionally, when considering an expiry of a limitation period during the timeframe the emergency order was in place, it was not up to the applicant to have to prove how the pandemic affected their ability to issue the LAT application on time.