This recent decision from the LAT addresses an issue that is anticipated to appear with greater frequency as the LAT grows longer in the tooth and the various limitation periods outlined in the SABS begin to bump up against each other.
This dispute involves an insurer’s potential exposure and responsibilities beyond the 260-week post-accident mark. The Applicant in this dispute submitted a proposed treatment plan for a physiatry assessment on December 4, 2019. Wawanesa denied the proposed treatment plan on December 16, 2019. The 260 week post-accident mark elapsed on August 8, 2021. The Applicant applied to the LAT on November 24, 2021. Wawanesa raised a preliminary issue that the application was time-barred as 260 weeks had elapsed since the date of the accident giving rise to the claim.
Vice-Chair Flude was asked to consider whether the 260 week post-accident acted as an absolute bar or if the two-year post denial limitation superseded and effectively extended the 260 week period during which benefits may be payable.
Wawanesa argued that s.3(7)(e) and s.20 of the SABS place an absolute bar on the insurer’s liability to pay for prospective treatment that has not been provided within 260 weeks. Despite Vice-Chair Flude being “somewhat baffled by the Applicant’s submissions” on multiple points, this was not fatal to the core of the Applicant’s argument that the two-year post denial limitation was controlling.
Vice-Chair Flude did not accept Wawanesa’s argument, relying on Rizzo & Rizzo Shores Ltd. (Re) (1998) CanLII 837 (SCC). In that case, Justice Iacobucci affirmed that one of the well-established principles of statutory interpretation was that the legislature does not intend to produce absurd consequences. Justice Iacobucci opined that an interpretation could be considered absurd if it lead to ridiculous, frivolous, illogical, incoherent, extremely unreasonable, or extremely inequitable results. With this precedent, Vice-Chair Flude opined that accepting Wawanesa’s arguments would lead to absurdities and contraventions of the intent of the SABS and statutory interpretation. If Wawanesa’s interpretation were to be accepted, it would mean in practice that an applicant would have to submit treatment plans that fully concluded prior to the 260-week period or risk being cut off from treatment partway through any plan that called for treatment beyond that 260 week mark even if approved by an insurer. As an aside, Vice-Chair Flude also opined that an approval of a treatment plan by an insurer represented an undertaking to pay for the whole course of treatment regardless of whether it extended beyond the 260-week period or not.
Further, interpreting the 260-week period as an absolute bar would artificially shorten the period during which an applicant could apply to the Tribunal with hope of receiving the denied treatment. Vice-Chair Flude reasoned that were the 260-week period an absolute bar, then an applicant would be forced to apply to the Tribunal in the hope that any decision in the applicant’s favour would leave enough room within the 260 week period to complete approved treatment. Vice-Chair Flude could not accept that this was the intention of the Legislature, especially given the pace matters could proceed through the Tribunal’s process.
Vice-Chair Flude reasoned that the purpose of an application to the Tribunal was not to determine when an insurer “will have to honour its obligations to fund treatment under the Schedule at some point in the future, but when should it have honoured its obligations in the past.” Thus, it was not the date of the decision that was controlling with relation to the 260 week limitation but the date of the denial. Rather, the Tribunal’s decision in favour of an applicant was a statement that an insurer should have approved the proposed treatment plan at some point in the past. If the applicant in this case was successful, that point was approximately 21 months prior to the lapse of the 260 weeks period. With the this reasoning, both the proposed treatment plan in question and the application were safely within their respective limitation periods.
Vice-Chair Flude dismissed the preliminary hearing and ordered the matter to proceed to a hearing of the substantive issues. While Han may be appealed or challenged at some point, for now it provides an important bellwether for how the LAT is viewing the 260-week limitation issue. This decision provides some clarity for approaching similar matters as more 260-week limitation issues begin to enter the dispute resolution process.