News Update – June 16, 2021
LAT Has Jurisdiction to Extend Limitation Period
The Court has at long last provided the needed clarity, affirming indeed that s.7 of the LAT Act DOES grant the LAT jurisdiction to extend the s.56 limitation period.
In December 2020, we brought you the breaking news that suggested the apparent imminent Demise of the LAT Act. With the Tribunal continuing to apply contradictory interpretations regarding the jurisdiction to extend limitation, the Court has weighed in with apparent finality.
S.7 intended to include not only a limitation fixed by an Act, but a limitation fixed under an Act
In Fratarcangeli v. North Blenheim, the Court addressed the argument that the text of s.7 refers to “any limitation of time fixed by or under any Act”, whereas the applicable two year limitation is contained in s.56 of a regulation, not in a provision of “any Act”. The Court noted that “the text of s. 7 on its face is broad and unlimited”, and that “the very words relied on by the insurers to justify a distinction between an Act and a regulation also support the conclusion that, by the use of the phrase ‘by or under any Act’, the Legislature intended in s. 7 to include not only a limitation fixed by an Act but a limitation fixed under an Act.” Further, the definition of “regulation” in the Legislation Act, 2006 means “a regulation, rule, order or by-law of a legislative nature made or approved under an Act…”. Additionally, “section 56 of the SABS contains a time limit fixed ‘under’ the Insurance Act by virtue of the regulation-making power contained in s. 121(1)(26). Thus, the two-year limitation fixed by s. 56 of the SABS is a time limit fixed under an Act and is subject to the LAT’s power to extend in s. 7.”
The insurers further argued that if the Legislature had wanted the s.7 power to apply to a limitation fixed by a regulation as well as by an Act, “it would have said so”. The Court found that “by the use of the term ‘by or under an Act’, the Legislature did ‘say so’. Further, the argument is fundamentally unhelpful from an analytical point of view because exactly the same thing could be said about the insurers’ interpretation: if the Legislature had wanted s. 7 not to apply to a regulation passed under the Insurance Act, it would have said so.
Legislature chose not to amend s.7 of the LAT Act to carve out from the power to grant extensions of time
The Court then noted that when AB disputes were transferred from FSCO to the LAT, “it was open to the Legislature to amend the LAT Act to exclude Insurance Act matters from the application of s. 7. Indeed, the Legislature did amend other provisions of the LAT Act when it transferred these matters from FSCO to the LAT.” However, “the Legislature chose not to amend s. 7 of the LAT Act to carve out, from the power to grant extensions of time, an exception for Insurance Act proceedings.” In addition, “the Legislature is presumed to know the law and not to make mistakes.” It was also noted by the Court that “the interpretation of s. 7 of the LAT Act urged upon us by the insurers would have the effect of significantly narrowing the LAT’s jurisdiction, in the context of other disputes under other statutory schemes. The LAT has undoubtedly exercised the jurisdiction to extend limitations fixed under those statutory schemes unchallenged, for many years, prior to it taking on the responsibility for dealing with SABS disputes.”
Doctrine of paramountcy does not apply as there is no conflict
The Court turned to the next argument from the insurers, finding however that the doctrine of paramountcy does not apply. The argument was that the Insurance Act and SABS provisions were intended to govern SABS disputes and be exhaustive and therefore, the “paramount” legislation and the LAT Act is “subordinate and generic.” The Court noted firstly that paramountcy had “no application to the interaction between two provincial statutes or statutory schemes. Further, the principle of paramountcy requires that there be a conflict between one statute and another. Here, there is no conflict…the LAT Act expressly contemplates a circumstance in which, despite any limitation in another Act, such as the Insurance Act, the limitation may be extended by the LAT.”
Policy argument favours s.7 power to extend s.56 time limits
The insurers argued as well a “policy argument” specifically that “the purpose of this transfer was to achieve more efficiency, timeliness, certainty and predictability in the handling of SABS disputes.” They argued that using the power under s.7 of the LAT Act to extend the limitation in s.56 of the Schedule is “contrary to that purpose.” The Court found that “the insurers take too narrow a view of relevant legislative purpose…the provision of benefits to those who need and qualify for them, through a process which is fair, accessible and efficient, is clearly the dominant purpose of the statutory scheme.”
The Legislature is presumed to know the law
Again, “the legislative, adjudicative and judicial history associated with s. 7 and the 2016 reforms to the SABS makes it plain that, when SABS disputes were transferred to the LAT, it was well known that the LAT employed s. 7…the Legislature is, under the canons of construction, deemed to know the law.” Therefore, the Court concluded that the LAT has jurisdiction under s. 7 of the LAT Act to extend the limitation in s.56 of the Schedule.
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