Volume. 6 Issue. 5 – February 9, 2022

The Court weighs in on a case wherein the Tribunal elected not to invoke S.7 of the LAT Act in extending the limitation period where the application before the LAT was filed 5 days after the limitation period. In remitting the matter back to the Tribunal for a rehearing, the court found the Tribunal made three errors of law:

1. Incorrect legal principle regarding length of delay
2. Incorrect legal principle on the prejudice criterion
3. Failure to consider new evidence
   

The LAT, as intervenor, reminded the Court that in terms of introducing new evidence upon reconsideration, said evidence “could not have been obtained previously by the party now seeking to introduce it”. The Court seems to at least imply that this aspect is not relevant in terms of whether new evidence is to be considered.

The second case involves a first for the Tribunal, whereby the insurer upon reinstating IRB, “prepaid” a 50% award, subsequently asking the Tribunal whether same was “meritorious”.

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Three Errors of Law Results in New Hearing Required

Court Finds Multitude of Errors of Law on the Part of the Tribunal – In Sharma v. Allstate, Sharma appealed to the Court a preliminary issue decision and reconsideration, both having found that Sharma was statute barred from pursuing NEB entitlement, with the Tribunal further having refused to extend limitation via s.7 of the LAT Act.

In denying the request for reconsideration, the Tribunal rejected Sharma’s submissions regarding the applicability of the LAT Act. The Tribunal found no evidence of a bona fide intention to file within the limitation period, rejecting the suggestion that the delay ought to have been measured by the number of days (five) beyond limitation, rather that the overall delay ought to be considered. The delay was said to create a “presumption of prejudice”, and finally that Sharma could have but chose not to submit evidence in support of the merits of the appeal.

The Court found that the Tribunal’s first error of law was in applying the incorrect legal principle regarding the length of delay criterion. The Tribunal had found there to be “no reason why the overall delay in filing an application cannot be considered during the analysis”. The Court however referenced Fratarcangeli, in which the Court had earlier confirmed that the first two years ought not to be considered in any assessment of delay. Given the statutory right to appeal, “it is incorrect in law to factor this two-year period in its analysis to extend the limitation period.” Therefore Sharma was “entitled to have the Tribunal undertake an analysis based upon a delay of five (5) days, rather than 735 days.”

The second error of law on the part of the Tribunal concerned application of the incorrect legal principle regarding the prejudice criterion. The Tribunal had found “there is an inherent prejudice to Allstate because of Ms. Sharma’s lengthy delay in filing her application… defending untimely claims that are long passed the insurer’s initial denial is prejudicial because of the difficulty in locating, producing, and relying upon experts and other evidence that may no longer be available.” The Court found that “the Tribunal’s focus of the prejudice was clearly on the period dating back to Allstate’s denial of the NEB, referring to Ms. Sharma’s delay as “long”. The Tribunal should have considered the actual prejudice that resulted from Ms. Sharma’s five (5) day delay in filing her application.”

Finally, the Court considered whether the Tribunal erred in finding Sharma did not demonstrate a bona fide intention to appeal within the time limit. At issue was a March 8, 2018 email from Sharma’s counsel, that read in part “Could you please advise if the client received NEB, if so, how much was paid to date and when was the denial date.”

The Tribunal had noted that this email was not introduced during the preliminary hearing, therefore considering same “as making a new argument at the reconsideration stage and chose to reject it.” The Court however found that in “deciding whether the reconsideration should be granted, the Tribunal was required to consider Ms. Sharma’s new evidence. The Tribunal was tasked with considering new evidence that had not been previously filed and determining to what extent it changed or altered the Preliminary Issue Decision.” The failure to consider the new evidence regarding the merits was therefore found to be the third error of law on the part of the Tribunal.

As a result, the appeal was granted, the matter was remitted to the Tribunal for a new hearing before another adjudicator, and costs as agreed were awarded to Sharma in the amount of $3500.

Insurer Prepayment of Maximum Award Not Reviewable

Prepaid Award Not Reviewable – At the start of the hearing in Bennett v Allstate (20-004414), the parties advised that IRB had been reinstated, with payments made retroactively for a prior suspension period April through July 2018. Allstate had also paid a 50% award on top of the IRB for the period in question.

The parties further agreed that the award and interest payable regarding IRB remained in dispute, likewise award and interest on a treatment plan Allstate also agreed to approve. Allstate submitted that “despite this payment, it is up to the Tribunal to determine if the award from April 2018 to July 2018 is meritorious and requests that the Tribunal determine if Allstate should pay an award beyond the $3,893.50 it has already issued.”

Dealing with the “prepaid” award, the Tribunal found Allstate’s “request to reconsider this payment unreasonable and that there is no authority for its recoverability in the Schedule or Reg 664 and, on this basis, it is not necessary to determine its merit as it is payable at the amount conceded by Allstate of 50%.”

Turning next to the claim for a further award, the Tribunal did not agree that Allstate had improperly relied upon an expert opinion to terminate IRB, nor that they had failed to address the evidence of Bennet’s experts. The Tribunal found that Allstate fulfilled its obligation to continuously adjust Bennet’s file, and that it was not unreasonable for them to have delayed reinstatement until income reported in the 2018 tax return was confirmed as not being “earned income”.

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