Clarity at Last – Extension of Limitations Periods at the LAT
By Alon Barda
There has been much confusion regarding the applicability of s.7 of the Licence Appeal Tribunal Act[1] (the “LAT Act”) in recent years. This was finally put to rest with the recent Divisional Court decision of Fratarcangeli v. North Blenheim Mutual Insurance Company[2]wherein it was held that the Licence Appeal Tribunal (the “LAT”) has jurisdiction under s. 7 of the LAT Act to extend the two-year time limit period for filing appeals set out in s. 56 of the Statutory Accident Benefits Schedule, O. Reg. 34/10 (the “SABS”).
Background
In A.F. v. North Blenheim Mutual Insurance Company (“A.F. v. North Blenheim”),[3] the Executive Chair of the LAT reconsidered two decisions where the Tribunal applied the two-year limitation period under s.56 of the SABS and dismissed the claims as statute barred.
The Executive Chair on her own initiative ultimately held that it was a significant error of law for the Tribunal to not consider s.7 of the LAT Act and sent both matters back for a hearing on the application of s.7, which states as follows:
Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal … 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.
In her decision, the Executive Chair highlighted that the Tribunal, in determining whether to grant an extension of time under s.7 of the LAT Act, generally weighs the following four factors to determine whether the case is one that warrants an extension to be granted:
1. The existence of a bona fide intention to appeal within the appeal period;
2. The length of the delay;
3. Prejudice to the other party; and,
4. The merits of the appeal.
Cases that followed the A.F. v. North Blenheim decision showed that the Tribunal was both applying s.7 and even doing so to relieve against missed limitation periods.[4] However, in 18-001196 vs. Certas Home and Auto Insurance Company[5] the application of s.7 was placed into a state of flux as Arbitrator Neilson found that the Tribunal did not have jurisdiction under s.7 of the LAT Act to extend the limitation periods.
Decisions were mixed thereafter and three cases ultimately made it to the Divisional Court on the issue of the application of s.7. The Licence Appeal Tribunal was an intervener on the appeal.
The Divisional Court Decision
In Fratarcangeli v. North Blenheim Mutual Insurance Company,[6]the Court first identified the two areas of s.7 that gave rise to the issue over the application of s.7 the LAT Act. These parts are outlined in bold:
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 under any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying the extension…[emphasis added].
The Court first addressed the argument as to whether s.7 has no application to disputes concerning the denial of benefits under the SABS because the limitation period is fixed under a regulation (i.e. the SABS) and not “by or under any Act” as specifically set out in s. 7.
The Court highlighted that the wording in s.7 on its face is broad and unlimited and the wording supports the conclusion that, by the use of the phrase “by or under any Act”, the Legislature intended in s. 7 to include “not only a limitation fixed by an Act but a limitation fixed under an Act,” such as the SABS.
Accordingly, the Court concluded that when s. 7 refers to a time fixed by or under an Act, it is contemplating a time limit fixed by regulation. Thus, the Court held that “the two-year limitation fixed by s. 56 of the SABS is a time limit fixed under an Act and is subject to the LAT’s power to extend in s. 7.”
The second issue for the Court to determine was whether s.7 does not apply because an application to the LAT for the resolution of a dispute under the SABS is not a “notice requiring a hearing” within the meaning of s. 7.
In this regard, the insurer argued that the Insurance Act and the SABS refer to an “application” to resolve disputes between insurers and insureds with respect to an applicant’s entitlement to accident benefits and that an “application” cannot be ascribed the meaning of a “notice of hearing” as set out in s.7.
The Court stated that the underlying purpose of an application to the LAT under s. 56 of the SABS is, ultimately, to have a hearing before the LAT on the disputed issues and “the mere fact that there may be limited or infrequent circumstances where the LAT may not grant a hearing or where a case can be dismissed without a hearing does not undermine the fundamental point.”
Accordingly, further to the above reasoning, the Court concluded that the LAT has jurisdiction under s. 7 of the LAT Act to extend the limitation in s. 56 of the SABS.
Takeaway
The decision of Fratarcangeli v. North Blenheim Mutual Insurance Company confirms that the LAT does indeed have jurisdiction under s.7 of the LAT to extend the two-year time limit for filing appeals set out in s. 56 of the SABS. This is a significant development, particularly since this was not available at FSCO.
Moving forward, in the event a limitation period is missed, it will be important for insurers to now consider the likelihood of the LAT granting an extension of time, which includes analyzing whether (1) there was a bona fide intention to appeal within the time limit; (2) the length of the delay; (3) the prejudice to the other party; and (4) the merits of the appeal.[7]
As set out by the Court, none of the factors necessarily has priority and all four factors will be taken into account when the Tribunal makes a determination.
[1] 1999, S.O. 1999, c. 12, Sched. G.
[2] 2021 ONSC 3997 (Div. Ct)
[3] 2017 CanLII 87546 (ON LAT).
[4] See, for example, D.A. v. Aviva Insurance Canada 2018 CanLII 39443 (ON LAT) and A.O. v. Unifund Assurance Company 2019 CanLII 58501 (ON LAT).
[5] 2016 CanLII 153125 (ON LAT).
[6] 2021 ONSC 3997.