Volume. 4 Issue. 49 – December 16, 2020

Div Court Does Not Accept LAT’s Ruling on Limitation

In this week’s edition, we review a Divisional Court decision where the Court considered an IRB limitation issue, a matter that the Tribunal had refused to reconsider as there remained live issues in the appeal regarding catastrophic benefits.

The two takeaways are:

1. The Court agreed with the parties that the subject appeal was not a departure from the principle against interlocutory appeals in administrative law.

2. The Respondent’s failure to provide the IE report to the person who completed the OCF-3 does not invalidate the refusal for the purposes of limitation period.

Of particular note, the Court disagreed with an unreported LAT decision Beric v. Guarantee wherein the Tribunal saw fit to import its own price of non-compliance for a matter acknowledged as having no statutory consequences. We begin our analysis with the Beric decision.

2013 Denial Not Valid – In Beric v Guarantee Company of North America (18-009494), the Tribunal concluded that the Applicant is not statute barred from proceeding with her 2018 application for IRB. It was found that the Respondent’s failure to give a copy of the IE report to the doctor who completed the OCF-3 at the time of the 2013 denial, invalidated the refusal for the purposes of the limitation period. The Tribunal found that the relevant section of the Schedule, s.37(5), was “an important component of the termination process, making it a precondition to relying upon the limitation period running.”

The Tribunal considered how the Respondent in fairness could ignore s.37(5) “knowing that there is no statutory stipulated consequence? This would seem unjust and unacceptable. Rules are rules and should be followed.” The adjudicator found it necessary to “remain impervious to the respondent’s argument that [the Applicant] was made aware of the denial and was provided with the IE report… one cannot simply put blinkers on and fervently and without regard to the other provisions in the Schedule maintain that the limitation period was triggered just because the applicant received notice of the denial”. Accordingly, the Applicant was entitled to contest the December 2013 IRB denial, following the February 2020 release of this June 2019 hearing.

However, as we shall see next in Higashi, the Court does not agree with the decision rendered by the Tribunal. It found to the contrary that “Subsection 37(5) on the other hand is not linked to refusal of benefits in particular.” The Court ruled that the Applicant was free to share the IE with her doctor in the event she wished an opinion on the legal question of entitlement. However, “I do not think that the legislature had in mind that the doctor would be involved in the decision to challenge a refusal of benefits.”

Decidedly Not Fatal – In Higashi v Western Assurance (18-009498), the Court considered an IRB limitation matter that the Tribunal had refused to consider via Reconsideration, as there remained live issues in the appeal regarding catastrophic benefits. The Court agreed with the parties that this was not a departure from the principle against interlocutory appeals in administrative law. In the particular circumstances “one party has been finally prevented from proceeding with an appeal respecting IRBs. The outcome of the catastrophic benefits has no bearing on this issue.”

In the matter at hand, the Applicant argued that a July 2015 IRB denial was invalid as all of the IE’s had not been provided to the practitioner who had completed the requested Disability Certificate. In fact, only one of seven had been provided, although all IE reports had been provided to the Applicant. In the original decision, the Tribunal held that “the omission to give copies of the reports to the practitioner who completed the OCF-3 was not fatal to the validity of the refusal. Therefore, the application to the Tribunal was out of time.” The Court agreed with this original finding, confirming that the failure on the Respondent’s part was not fatal to the running of the limitation period.

The Applicant argued the finding in the Beric case discussed above. The Court found that as of July 2015 “the appellant had what she needed to know that the respondent had made an unequivocal determination to discontinue her benefits and the medical reasons therefor. She had copies of the independent assessments upon which the determination was based. She was given enough information to know whether or not to challenge the cancellation of benefits. There is no reason why the limitation period should not have started to run.” The appeal was dismissed, with costs to the Respondent of $7,500.

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