In  Adams v. Aviva Insurance Company (2024), the Divisional Court remitted the issues back to the LAT for a new hearing after they had been overlooked by the Adjudicator at the first hearing, and the reconsideration hearing.

The Applicant was involved in a motor vehicle accident on August 28, 2018. She reported the accident to Aviva on June 13, 2019, nearly a year after it took place. The Respondent provided Ms. Adams with benefits package the same day, which was completed and returned to Aviva on October 20, 2021, over two years after the fact. On February 1, 2022, Aviva notified the Applicant that it was denying her claim due to her non-compliance with s. 32(1) of the Schedule. Ms. Adams applied to the License Appeal Tribunal (the “Tribunal”) for a resolution of the dispute. The Tribunal dismissed her application in a decision dated January 27, 2023.

Section 32(1) of the SABS states that a person who intends to apply for accident benefits shall notify the insurer of their intention to do so “no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day.” Section 34 clarifies that a person’s failure to comply with this time limit does not disentitle them to a benefit if the person provides a “reasonable explanation” for the non-compliance.

In dismissing the application, the Adjudicator concluded that Ms. Adams did not have a “reasonable explanation” for the significant delay and barred her from applying to the Tribunal due to her failure to adhere to SABS timelines. In her submissions, Ms. Adams advanced other arguments with respect to the interplay of various SABS sections and Adjudicator discretion, but the Tribunal did not find it necessary to conduct an analysis of her submissions made in relation to ss. 32(5), 32(10) or 55(2) of the Schedule.

Ms. Adams subsequently submitted a request for reconsideration which was also dismissed on May 31, 2023. The Tribunal held that the Applicant was attempting to raise new arguments in her reconsideration request, which she did not raise in her initial submissions. The Adjudicator found that the “Applicant did not argue that section 34 of the Schedule does not apply to section 32(1) and that it does not provide the insurer the recourse applied in denying the payment of benefits to the applicant [nor] argue that section 34 does not provide the Tribunal with the statutory authority to bar her ability to apply to the Tribunal for dispute resolution.” Furthermore, the Adjudicator commented on the Applicant’s submissions with reference to ss. 32(10), and stated that she did not make “clear and cogent submissions and nor did she provide any case law supporting her argument.” In finding that Ms. Adams failed in her opportunity to submit case law to advance her arguments, and that the Tribunal is “not obligated to address every single argument that a party advanced”, the Adjudicator dismissed the request for reconsideration.

Ms. Adams further appealed to the Divisional Court, stating that the Tribunal made errors of law in both the initial and reconsideration decisions. The Court held that the Tribunal’s finding that Ms. Adams did not have a reasonable explanation for the delay is a finding of fact from which there is no right of appeal. Therefore, s. 34 of the SABS does not assist the Appellant. The Court did note, however, that s. 34 “does not bar entitlement, but rather, appears to act as a path for forgiveness for a missed time limit.”

In its analysis of the other issues raised at the LAT, the Court reviewed the Applicant’s initial submissions regarding the interplay of ss. 32(1), 32(10) and s.34, and was satisfied that Ms. Adams did in fact advance an argument that s. 34 is inapplicable to s.32(1) as it is displaced by the specific wording in s.32(1). Interestingly, the Adjudicator at the reconsideration hearing seemed to both accept and reject the Applicant’s interpretation of the interplay of these two SABS sections, but nevertheless concluded that the Appellant was raising a new argument and denied the request for reconsideration.

The Divisional Court found that “the Tribunal erred in the Preliminary Decision when it failed to consider this issue, and in the Reconsideration Decision, when it concluded that it was a fresh issue on appeal.” The Court set aside both decisions and remitted the matter back to the LAT for a new hearing at first instance before a different Adjudicator. The Court also held that depending on the new Tribunal’s finding on s. 34(10), consideration might also need to be given to the issues of whether the Appellant failed to comply with ss. 32(5); whether by virtue of s. 55 the Appellant was precluded from appealing to the Tribunal; and whether in these circumstances the Tribunal could exercise the discretion set forth in ss. 55(2) to permit the application to go forward.

The overarching message from the Divisional Court is that the Tribunal cannot decline to consider submissions of the parties at first instance, and then decline to consider the same submissions at the reconsideration stage, branding them as “new argument” or an attempt by a party to re-argue its initial position. It therefore appears that reintroducing submissions from the initial hearing may not amount to an impermissible “second kick at the can” if the Tribunal erroneously declined to consider them in the first place. As well, the Court’s decision points to the possibility that adjudicators may find that they have jurisdiction to permit applicants to proceed with their benefit claims pursuant to ss. 55(2) even in circumstances where a breach of s. 32(1) is not saved by s. 34 on the one hand, but not to permit applicants to proceed pursuant to ss. 55(1)1 on the other hand if there is a breach of ss. 32(5) that is not saved under s. 34 because an applicant fails to provide a reasonable explanation for delay in submitting their completed application for a benefit more than 30 days after receipt of the form.

Karina Dziuba is an articling student at the firm. If you have a question about this decision or a similar file, please contact Karina at 416-777-2811 ex. 5293.