Volume. 6 Issue. 33 – August 24, 2022

In ‘10% Award for Eighteen Year Payment Delay’ the Tribunal considers the appropriate award to be levied in the face of an eighteen year delay in paying ACB. It is also noted that the interest payable on the delayed payments far exceeded the modest monthly ACB amount.

In ‘COVID Limitation Suspension Considered’ the implications of the COVID related limitation period suspension are explored, wherein a limitation period fell within the 183 day freeze period.

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10% Award for Eighteen Year Payment Delay

ACB Delay of 18 Years – The Applicant K.G., in 20-003724 v MVACF, suffered a brain injury and was rendered a CAT as a result of a 1999 accident. Following a hospital stay, MVACF commenced paying an Attendant Care Benefit (ACB) of $5,575.31 per month. Over a short period of time, K.G.’s ACB needs evolved, ultimately being reduced to $120.40 per month.

Then, in November 2000, ACB was placed “on hold” pending a further reassessment given K.G.’s new living arrangements. MVACF however never provided notice of any change, the reassessment never occurred and ACB payment never resumed. It was not until 2018 that MVACF caught the error, and paid ACB from November 2000 at the rate of $120.40 per month to date, plus interest.

In 2018 K.G.’s counsel retired, and his new counsel arranged for a July 2020 retroactive/retrospective Form 1, that supported a requirement of $5575.31 per month. Counsel for K.G. asserted several different approaches as to why K.G. was entitled to ACB as per the recent Form 1, one being what was alleged to have been an improper ACB stoppage.

The Tribunal however accepted the submission of MVACF that “its intention was only to temporarily place the benefit on hold pending a reassessment, rather than to permanently stop or reduce the benefit, and that the ensuing extended suspension was a mistake.” To that end, it was noted the last Form 1 that the assessor for MVACF completed recommended continuing the rate of $120.40 monthly, therefore MVACF had never determined K.G. was no longer entitled to ACB.

The Tribunal also noted that “the voluminous records and testimony point to the ACB reductions made in consultation with K.G.’s treating OT, his parents, and his treatment team – and as part of a goal to get him to be independent.” A request to reinstate at the rate of $5573.31 would therefore be “at odds with the parties’ dealings at the time.” The retroactive Form 1 was said by the Tribunal “to be an exercise in second-guessing given that there was counsel and a POA involved at the time, who were in consultation with the treatment team.” Ultimately, the Tribunal found, save for two brief periods following a change in residences, that past ACB had been assessed and paid correctly. In terms of present requirements, the Form 1 for $120.41 monthly still appeared accurate.

With respect to an award, the Tribunal found that, while accepting the testimony that the “suspension” was intended as a temporary measure, there was in fact “no provision under the 1996 Schedule for MVACF to place a benefit on hold – and that was not a mistake. In other words, MVACF knowingly acted outside of the statutory scheme and did so without providing any notice of the suspension, and when coupled with a mistake, it resulted in a staggering delay of 20 years, which attracts an award. It also happened at a time when MVACF’s adjusters was aware K.G.’s family was providing unreimbursed ACB.”

The Tribunal found that 10% was an appropriate award, given that the delay was an error, and that MVACF has paid the past due plus interest upon becoming aware of same. Further, counsel for K.G. had never raised the issue, and “oddly, given the high interest rates under the 1996 Schedule, in some ways the delay worked to K.G.’s advantage and against MVACF, because the recent interest payment on the past due $120.40 ACB was many times more that the actual ACB. As for K.G.’s vulnerability, he was represented by counsel and a POA.” As for the appropriate rate, the 2% per month as per the 1996 Schedule applied, as this entitlement was a substantive right that subsequent amendments would not change.

COVID Limitation Suspension Considered

COVID Limitation Freeze Considered – In 20-014625 v Travelers, the Tribunal considers in a motion decision the implications of the COVID related suspension of Limitation periods. It was noted that limitation periods were suspended between March 16 and September 14, 2020, confirmed as a period of 183 days. With the effective limitation period for this matter being June 1, 2020, the Tribunal simply added 183 days to that date, with the revised limitation period therefore ending December 1, 2020.

It was not until December 9, 2020 that the Applicant Tamayo filed her LAT application, with the result being an eight day delay in filing within the applicable limitation period. Given same, Tamayo sought an extension of the limitation in accordance with s.7 of the LAT Act.

The Tribunal found that the eight day delay was not excessive, although accepted Traveler’s “observation that any delay should be avoided, as there is an inherent inefficiency to any missed limitation period.” The Tribunal however did not accept Traveler’s request that they consider the limitation freeze in determining the reasonableness of the extension request. This was said to be asking the Tribunal to essentially disregard the freeze, whereas this emergency measure was put into place to remove “the requirement for the applicant to take steps to pursue her application during the early months of the pandemic”.

The Tribunal was further satisfied that there was evidence of a bona fide intention to file on time, given that there was a FAX sent to the treating clinic in November 2020, indicating in part “We are preparing an Application for an Injured Person to mediate our client’s medical file.” Acknowledging the “inherent prejudice” of a missed limitation period, the Tribunal, in the absence of any specific form of prejudice being suggested, did not find any prejudice associated with an eight day delay to be much of a factor. The Tribunal also found there to be some merit to Tamayo’s claim, and ultimately found that she was allowed to proceed with the claim for denied IRB.

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