News Update – December 23, 2020
The Demise of the LAT Act?
The LAT Act has been the most controversial statutory interpretation since AB disputes transitioned to the LAT in April 2016. While the long awaited court ruling Fratarcangeli v North Blenheim on the LAT’s jurisdiction remains before the court, the LAT has continued to exercise its discretion under s.7 of the LAT Act on limitation matters. Until now.
With the release of two decisions on December 3 and 15, the Tribunal appears to be indicating that this was perhaps misguided…
December 2017 – A.F. & N.L. v North Blenheim (16-002336 & 16-002606)
The limitation period at the LAT has been a matter of contention since we were first introduced to the LAT Act in the North Blenheim reconsideration rendered by Linda Lamoureux, the Executive Chair at the time. It was indicated that the Tribunal had the discretion to invoke s.7 of the LAT Act to extend limitation period under certain circumstances. As a result, it became common practice for the LAT Act to be considered in limitation cases and was in fact extended in 25% of the 77 cases where the LAT Act was raised.
September 2019 – S.S. v Certas (18-001196) & November 2019 – M.N.v Aviva (19-001096)
The Tribunal (Adjudicator Neilson in both instances) rejected the Executive Chair’s approach in North Blenheim and ruled that the Tribunal does not have jurisdiction to extend the limitation period under the LAT Act. This finding was based on the premise that the limitation period was removed from the Insurance Act, leaving it under the Schedule which is a regulation itself, not specifically captured in the wording of s.7 of the LAT Act.
In a recent release, we featured 19-011699 v Dominion, wherein Vice-Chair McGee upheld the limitation period, supporting the above notion that the LAT Act was in fact not available as a remedy to extend limitation. This was in context of the otherwise unanimous endorsement of the applicability of the LAT Act by all members of the Tribunal to that date and beyond.
December 3, 2020 – Tribunal ‘LAT Act is a Live Issue’
Vice-Chair Flude delivered the LAT update during the CDL AB Fall Classic, confirming that the applicability of the LAT Act was very much a live issue at the Tribunal.
December 18, 2020 – Divisional Court Update in Fratarcangeli v North Blenheim
With the apparent growing uncertainty regarding whether s.7 of the LAT Act can be invoked to extend the limitation period, the court released an updated order December 18, 2020 on North Blenheim. We eagerly awaited the Court weighing in on this matter. Well, it seems now that the wait will continue for a little bit longer.
The Court was to hear three cases on point December 8 & 9 of this year. The LAT made it clear that they did not intend to appear or to make representations. The Court however felt it important for the LAT to appear and assist the Court’s understanding. To this end, the Court ordered leave for the LAT to intervene and to provide any evidence upon which it intended to rely, and a Factum outlining intended submissions. Representatives for all parties were to determine three days between January 4, 2021 and February 26, 2021 for the three cases to be heard.
While we await the ultimate determination from the courts, we may now have a reasonable idea as to the ultimate disposition of the matter.
December 21, 2020 – The LAT shifts
In two just released decisions, the Tribunal has held quite strongly that the LAT Act does not afford the Tribunal the capacity to extend Limitation.
In M.M. v Royal & Sun Alliance (18-007290), Vice-Chair Gregory Flude (who presented at the CDL event) found the reasoning in S.S. v Certas and M.N. v Aviva persuasive, both because of its internal consistency and because of its application to the broader jurisdiction of the Tribunal. Noting that the Tribunal deals with appeals under 32 other statutes, “I am unaware of any of those 32 statutes where the time limit to appeal to the Tribunal is not in the enabling Act itself.”
Noting that while in most cases the appeal periods are quite short (15 days in some instances) which makes it at least somewhat reasonable to allow for extensions, however the argument “is more difficult to support where the applicant has two years to appeal.” As a result, “it appears clear that the Legislature’s action of moving the limitation period from the Insurance Act to the Schedule and its omission of the words “or regulation” in s. 7 of the LAT Act was intentional. Based on the above, I find that s. 7 of the LAT Act does not authorize the exercise of discretion to extend the limitation period in s. 56 of the Schedule.” This decision was released December 3, 2020.
In a decision released December 15, 2020, the Tribunal, in Mohamud v Certas (19-005153), also agreed that there was no jurisdiction to extend the limitation period by way of the LAT Act. It was noted that there was to date no direction on said issue from a court of superior jurisdiction on the applicability of the LAT Act and whether or not it confers jurisdiction to the Tribunal to extend the s.56 limitation period. However, the Tribunal in this instance preferred the reasoning in S.S. v Certas over A.F. v North Blenheim. This was “based solely on the principals[sic] of statutory interpretation the[sic] formed the basis of Adjudicator Neilson’s decision that s. 7 of the LAT Act did not apply to s. 56 of the Schedule because the Schedule is a regulation and not an ‘Act’ which is the specific term used in s. 7 of the LAT Act.”
Remedy for Insurer Adversely Impacted?
It remains to be seen how the Court will ultimately decide this issue, and intriguingly the nature and direction of the evidence that the rather conflicted Tribunal will introduce.
In the event it is found that the Tribunal does not have the discretion to extend limitation, what remedies, if any, will be available to parties who have paid claims outside of the prescribed limitation period.
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