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Licence Appeal Tribunal confirms discretionary power to extend the limitation period when justice of the case requires that the extension be granted


The Licence Appeal Tribunal (“LAT”) confirms discretionary power under section 7 of the Licence Appeal Tribunal Act, S.O. 1990, c.12, to extend the limitation period when justice of the case requires that the extension be granted.

In S.J. v Allstate, the LAT confirmed its jurisdiction pursuant to section 7 of the Licence Appeal Tribunal Act[1] to extend the limitation period to dispute a denial of accident benefits when justice of the case requires. Despite finding that there was a clear and unequivocal denial of accident benefits, the Tribunal applied the four-part test as set out in A.F. v. North Blenheim Mutual Insurance Company,[2] as follows:

  1. Bona fide intention to appeal within the appeal period;
  2. Length of delay;
  3. Prejudice to the other party; and
  4. Merits of the appeal.

In S.J., attendant care benefits were denied on July 22, 2016. Later, a partial settlement was reached between the parties for all past attendant care benefits up to May 11, 2017 only, as stipulated in an executed Partial Release. In response to an updated Assessment of Attendant Care Needs (Form 1), on October 10, 2018, the insurer delivered correspondence denying the applicant’s claim for attendant care benefits. An appeal was submitted to the Tribunal on January 10, 2019.

Adjudicator Johal found that the Partial Release served to demonstrate a bona fide intention to appeal the denial of attendant care benefits in October 2018. The Partial Release agreement made no mention of future attendant care benefits, or that any future claim of attendant care benefits was extinguished. The Partial Release was found to support the belief that it engendered and to be reasonable explanation for not appealing the July 2016 denial again.

It was found that there was no prejudice as a result of the delay, as an updated Form 1 was submitted, and the insurer had an opportunity to conduct its own insurer examination thereafter. On the last factor, the fact that the applicant was receiving attendant care benefits in the past, and had been designated as catastrophically impaired, is sufficient to show a “reasonable chance of success,” which is the threshold required to consider the merits of the appeal in the four-part test.

Of note, S.J. aligns with the recent decision of Tomec v. Economical Mutual Insurance Company[3], ruling that discoverability applied to the limitation period, and relying on the Supreme Court decision of Pioneer Corporation v. Godfrey[4].  Ultimately, the Statutory Accident Benefits Schedule is remedial and constitutes consumer protection legislation intended to reduce the hardship of motor vehicle accident victims.

[1] S.O. 1990, c.12

[2] 2017 CanLII 87546 (ON LAT)

[3] 2019 ONCA 882

[4] 2019 SCC 42

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