On September 5, 2019, LAT Adjudicator Deborah Neilson was asked to consider whether the Tribunal has jurisdiction under s. 7 of the LAT Act to extend the limitation period provided in s. 56 of the Schedule. The original adjudicator exercised his discretion to extend the limitation period for the Applicant’s claims for NEB’s, ACB’s and a neurological assessment. Certas asserted that the Tribunal exceeded its jurisdiction, made significant errors of law and fact, and that there was new evidence that could not be obtained earlier that would have affected the result.
Certas advanced several grounds on appeal but its main argument was that the Tribunal erred in finding that it had jurisdiction under s. 7 of the LAT Act to extend the limitation period under s. 56 of the SABS. Section 56 establishes a two year time limit for disputing denials to the LAT. Section 7 of the LAT Act provides that:
“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.”
The main premise of Certas’ argument was that s. 7 of the LAT Act does not apply because the limitation period is fixed under a regulation (the Schedule) rather than “by or under an Act.” Further, it argued that s. 7 does not apply as a LAT application is not a “notice requiring a hearing.”
Limitation Period Fixed “By or Under an Act”
The Tribunal originally rejected Certas’ submissions and found that the limitation period was established under a regulation which was enacted under an Act. As such, the Tribunal found that the limitation period was prescribed under an Act. On reconsideration, the Applicant relied on A.F. v North Blenheim Mutual Insurance Company to argue that s. 7 of the LAT Act should apply to accident benefits claims because nothing in s. 7 specifically excluded Insurance Act matters.
However, Adjudicator Neilson noted that Certas’ argument about the difference between a regulation and Act was not advanced in A.F. v North Blenheim Mutual Insurance Company. Further, Adjudicator Neilson found that, if “by or under an Act” in s. 7 was meant to include regulations, the use of the words “Act” and “Regulation” in s. 3 of the LAT Act would be redundant and contrary to the rules of statutory interpretation.
Adjudicator Neilson also considered the definition of “Act” and “Regulation” under the Legislation Act. Under this statute, “Act” and “Regulation” are defined differently. Adjudicator Neilson opined that treating these terms as having the same definition would change the legislative process for enacting laws which is contrary to the powers conferred under the Legislation Act.
Adjudicator Neilson also found Certas’ arguments persuasive as the previous limitation period for accident benefits claims under s. 281.1(1) of the Insurance Act was repealed when the dispute resolution process was transferred to the Tribunal. She found that, if the legislative intent was to give the Tribunal discretion to extend the limitation period, the Insurance Act limitation period would not have been repealed but rather amended to be consistent with the LAT Act. Adjudicator Neilson also noted that s. 7 of the LAT Act could have been amended to include regulations when parts of s. 11 of the LAT Act were amended to include the Insurance Act. Adjudicator Neilson noted that these amendments and repeals would have to be considered oversights or errors if the Applicant’s position was accepted. Ultimately, Adjudicator Neilson found that the legislature intended to remove the limitation period from the jurisdiction of the LAT.
Notice Requiring a Hearing
Adjudicator Neilson did not spend much time analyzing the argument that a LAT application is not a “notice requiring a hearing” given her findings on the first issue. However, she did note that, if s. 7 of the LAT Act included limitation periods made under regulations, she would have found no error in the Tribunal’s original decision that a LAT application is a “notice requiring a hearing.”
Ultimately, Adjudicator Neilson accepted the Insurer’s request for a reconsideration and dismissed the Applicant’s claim as being statute barred. The Tribunal has provided some much needed clarity to the law surrounding limitation periods before the LAT. Recent decisions from the LAT regarding limitation periods has led to some ambiguity and made it difficult to predict how each case will be decided. Adjudicator Neilson has re-established a hard two year limitation period which will hopefully provide some certainty and finality in cases where limitation periods are missed.
Dale Stuckless is the author of this blog and member of the Licence Appeal Tribunal practice group. If you have a question about this decision or a similar file, please contact Dale at 647-427-3342 .