News Update – February 21, 2020

Tribunal Doubles Down on the LAT Act

Yesterday, amongst 100 decisions released, two in particular suggest that the anticipated demise of s.7 of the LAT Act may well have been premature.

If you are getting caught up, 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 in December 2017. This past September, in 18-001196 v Certas, the Tribunal ruled it does not have jurisdiction to extend the limitation period under the LAT Act. Although the Certas decision was raised in an unrelated October 2019 Divisional Court appeal, the Court declined to intervene until the matter at hand was finally disposed of. Meanwhile, the North Blenheim reconsideration is scheduled to be heard before the Court in April 2020.

In the two cases released yesterday, the Certas decision on jurisdiction was briefly considered by the Tribunal but dismissed with preference given to the Executive Chair’s reasoning in North Blenheim. No specific reasons were provided to allow for an understanding as to why the Certas case was found wanting.

In the original November 2018 decision of 18-001713 v Aviva, the Tribunal considered the applicability of s.7 of the LAT Act in extending the limitation period for the Applicant’s claim for IRB, despite neither party having raised same nor making any relevant submissions. The Tribunal found, “it strained belief that the Applicant, represented by counsel, was instructed to wait two years before appealing the denial, a ‘simply unreasonable’ contention that again undermines the ‘bona fide intention’ criterion.” The Applicant “should have been aware of the risks of late filing and been more diligent in avoiding these risks.”

In the absence of sufficient evidence to guide the Tribunal as to the merits of the case, therefore “I do not find that [the Applicant] has a reasonable reason for missing the limitation period deadline…and accordingly I do not find that there was a bona fide intent (or attempt) to file [the Applicant]’s appeal on time.”

In a July 2019 initial reconsideration, it was found that “The Tribunal made a finding on an issue that was not raised by the parties and concluded that the lack of submissions on the explanation of the delay and whether there was a bona fide intention to appeal was the reason for not exercising its discretion.” Further, “the Tribunal erred when it made its conclusion without the specific facts and submissions at hand with respect to the four factors and without an analysis of whether the ‘justice of the case’ requires an extension of the limitation period.” Parties were accordingly invited to make submissions solely upon the applicability of the LAT Act.

In the February 2020 continuation of the reconsideration, the Tribunal first dealt with 18-001196 v Certas relied upon by the Respondent that it is not within the Tribunal’s jurisdiction to extend the limitation period under the LAT Act. This decision was found in direct contrast to the reconsideration decision of Executive Chair Lamoureux in A.F. v North Blenheim, wherein there was an analysis of the legislator’s intent noting that section 7 permits an extension of a limitation period “despite any limitation of time fixed by or under any Act”. The Executive Chair concluded that the legislators could have amended this section of the LAT Act, but did not do so, despite amending other sections of it.

In the Certas decision, the Tribunal found that the Executive Chair was “not asked to consider the definition of an ‘Act’ and ‘regulation’ and whether the words ‘under any act’ in section 7 does not mean a regulation.”

Failing to address the merits of this specific argument, the Tribunal nonetheless indicated, “I am not bound by another member’s decision and, in any event, I prefer the opinion of the Executive Chair and the reasoning in North Blenheim that the legislature is presumed to know the law and not make mistakes”. Accordingly, s.7 of the LAT Act was found to be applicable.

Ultimately, the appeal on its merits was allowed to proceed, as “justice of the case warrants an extension of the limitation period.”

Similarly, in 19-002127 v Aviva, the Tribunal found that “justice still requires that the Tribunal consider whether an extension of the limitation period should be granted.” Referencing the contrary Certas decision cited above – 18-001196 – the adjudicator confirmed being “very aware of the decision”, however “respectfully, I disagree with its analysis and ultimate conclusion and note that it is currently under appeal.” Further, “absent direction from a court of superior jurisdiction on the applicability of s. 7, I follow the significant body of existing jurisprudence from this Tribunal indicating that this Tribunal does have jurisdiction under s. 7 of the LAT Act to extend a limitation period if the justice of the case supports.” On the merits, the limitation period in this matter was also extended to allow for the appeal to be heard.

With the Tribunal deciding to double down on the role of s.7 of the LAT Act, stakeholders must now await the Court decision on North Blenheim, anticipated in April 2020, before this most important and contentious matter is itself given some finality.

About inHEALTH

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