In Ontario, does the Licence Appeal Tribunal (“Tribunal”) have jurisdiction to extend the 2-year time limit to dispute the denial of accident benefits? Yes, according to the Divisional Court in Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997.
At issue in this long-awaited decision was a trio of appeals from the Tribunal which was split on whether they had jurisdiction under s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G (the “LAT”), to extend the 2-year time limit to dispute denials under s. 56 of the Statutory Accident Benefits Schedule, O. Reg. 34/10 (“SABS”).
Section 7 authorized the Tribunal to extend the time for giving notice of an appeal “despite any limitation of time fixed by or under any Act” and its application to SABS disputes had resulted in mixed decisions on whether it could be applied to s. 56. Indeed, two of the appeals were brought by insurers after the respective time limits had been extended and the other by an applicant after the Tribunal concluded that it lacked the jurisdiction to extend the time limit. So divisive was this issue among the Tribunal’s case law that the Divisional Court ordered its participation in these appeals.
Put simply, the appeals turned on whether the words “by or under any Act” contained in s. 7 could be applied to a limitation fixed by a regulation such as the SABS. They could not be, argued the insurers, for three reasons:
The Textual Argument
Insurers argued that the words of s. 7 meant the provision did not apply to s. 56 of the SABS because the terms “Act” and “regulation” appeared separately in other provisions of the LAT. The Court disagreed and concluded that s. 7 applied to s. 56 because a regulation is made under an Act. That interpretation was consistent with Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, s. 17, which defines regulation as a “regulation, rule, order or by-law of a legislative nature made or approved under an Act”. It also accorded with the amendment to LAT, s. 11(6) that created a carve out for Insurance Act, R.S.O. 1990, c. I.8, disputes. Had the Legislature intended s. 7 not to apply to SABS disputes, it could easily have created a similar exception to s. 7 as it had done for s. 11(6).
The Court also found that the Tribunal’s jurisdiction would be significantly restricted were the insurers’ argument be accepted, as seven other regulations it dealt with also contained time limits. In the insurers’ view, the Tribunal similarly lacked the jurisdiction under s. 7 to extend any of those time limits since they were contained in regulations and not the enabling statute, including the 15-day limit to appeal the impoundment of a vehicle. That argument could not succeed because the Tribunal had for years extended those time limits without issue before assuming jurisdiction over SABS disputes.
The Doctrinal Argument
Insurers argued that the highly specific limitation set out in s. 56 prevailed over the general power to extend time limits in s. 7, relying on the doctrine of paramountcy. The Court dismissed this argument and held that constitutional law principles such as the doctrine of paramountcy had no application to perceived conflicts between provincial statutory schemes.
In any event, there was no conflict. Instead, the Court found that the regulation making power over the SABS and the LAT went hand in hand. The SABS governed accident benefits and the time for disputing their denial while the LAT allowed that time limit to be extended. The Court likewise dismissed the insurers’ argument grounded in the doctrine of “the specific excludes the general” which it found not to apply in the absence of a legislative conflict.
The Policy Argument
Insurers argued that allowing s. 7 to apply to s. 56 was contrary to the statutory purposes of improving timeliness and efficiency, and of fostering certainty and predictability. The Court rejected that narrow view and instead preferred the purpose of providing a fair, accessible and efficient dispute identified by the Court of Appeal in Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615.
The Court concluded that the Legislature is deemed to have known the law at the time of the 2016 amendments transferring the SABS disputes to the Tribunal, which included the Tribunal’s regular use of s. 7 subject to review by the courts (see e.g., Manuel v. Registrar, 2012 ONSC 1492).
In the absence of evidence, the Court also dismissed as conclusory the insurers’ assertion that permitting the Tribunal to extend time limits would impair the timely and efficient resolution of disputes.
In the result, the Court allowed the applicant’s appeal from the Tribunal’s decision, concluding that it lacked the jurisdiction to extend the time limit and dismissed the insurers’ appeals from the contrasting decisions which concluded that it did not have the jurisdiction to do so.
Why This Is an Important Decision
Fratarcangeli finally settles the debate as to whether the Tribunal can extend the time limit to dispute accident benefit denials under LAT, s. 7. Indeed, for years the contradictory decisions on appeal in Fratarcangeli had resulted in conflicting case law (see e.g., time limit could be extended in EA v. Aviva, 2018 CanLII 112123 (ON LAT) and SW v. Aviva, 2020 CanLII 63569 (ON LAT); whereas time limit could not be extended in MN v. Aviva, 2019 CanLII 119731 and MM v. RSA, 2020 CanLII 101834 (ON LAT)). Whether this decision affects the volume of applications to the Tribunal remains to be determined. Nonetheless, the decision is already being picked up in case law (see e.g., Haines v. Aviva, 2021 CanLII 53157 (ON LAT)).