Volume. 7 Issue. 9 – March 15, 2023
Two cases this week, beginning with ‘Tribunal Flips the Script’, in which an adjudicator hearing her own reconsideration did a complete 180 degree turn in now determining that the various factors relied upon at first instance were no longer of relevance.
In ‘The Sins of the Lawyer’, the Tribunal exercises the discretion to extend limitation as per the LAT Act for an NEB claim that was just under 10 months late. In somewhat of a departure from the norm, the Tribunal opted to exclude from consideration anything found to be related in any way to the actions (or inactions) of her chosen counsel.
LAT Update – What Difference Did A Year Make?
The LAT released Performance Stats up to mid-year 7 which is current through to the end of September 2022. Together with the LAT’s last update we can now provide a comparison of year over year, with projections through to the end of year 7 in this annual update. What difference did a year make?
Tribunal Flips the Script – In 21-008322 v Gore Mutual,, the Tribunal, in the original decision found that the Applicant Nichols was statute barred from proceeding with her application, having failed to tender her completed OCF-1 in accordance with s.32(5) of the Schedule. It was also found that Gore Mutual had failed to comply with s.32(2) of the Schedule, having never supplied Nichols with an OCF-1. However, the Tribunal found that “the Schedule provides no consequence for the failure to comply with section 32(2).”
At first instance the Tribunal found “There must be a reason as to why the Legislature did not provide a consequence for the failure to comply with section 32(2). I am required to respect the Legislature’s clear intention even though it may result in unfairness to the applicant.” In addition, the Tribunal pointed to the fact of Gore having sent multiple letters to Nichols concerning her failure to submit an OCF-1, noting that Nichols “had a duty to mitigate this issue… It was open to the applicant to notify the respondent that one or more forms were missing, particularly if the respondent might be unaware of that deficiency.”
However, hearing its own reconsideration, the Tribunal now flipped the script. Section 32(5) states that an applicant must submit the OCF-1 within 30 days of receiving the forms. Therefore, “The receipt of the OCF-1 from the respondent is the precondition for the clock to start running with respect to submitting the OCF-1. Simply put, if the applicant does not receive the OCF-1, then the 30-day time limit to file the OCF-1 does not start.” Having earlier found that Nichols had not been provided with an OCF-1, the Tribunal agreed with Nichols “that the clock to submit the OCF-1 did not start running because the respondent did not provide her with the OCF-1.”
Concluding, “the Tribunal committed an error of law when it barred the applicant from proceeding with her application. In light of the fact that the clock never started running because of the respondent’s failure to provide the OCF-1, I find that there was no delay in the applicant submitting the completed OCF-1 to the respondent. Consequently, the precondition in s. 55(1)1 to bar the application does not exist.”
LAT Act Invoked to Extend Limitation For Ten Month Delay
Sins of the Lawyer – In 19-003270 v Certas,, it was agreed that the Applicant, K.D., had missed the presumptive two year limitation period to appeal the denial of her claim for NEB by nine months, 26 days. The Tribunal, exercised its discretion conferred it by s7 of the LAT Act to extend the limitation period having considered the 4 factors set out in the test.
Considering firstly whether there was a bona fide intention to appeal within limitation, K.D. relied upon the fact of having submitted multiple OCF-3s, all supporting entitlement to NEB, and that she relied upon counsel throughout. To this latter point, K.D. contended that any procedural misstep by failing to appeal the denial of the first Disability Certificate ought not be visited upon her, relying upon the principle that “the sins of the lawyer should not be visited upon the client”.
Certas in contrast submitted that K.D. “was represented by legal counsel who knew or ought to have known the proper procedure to appeal the NEB denial”.
The Tribunal concluded that “there appears that there was some sort of miscommunication between the applicant and her counsel and as a result, an error ensued. I accept her counsel’s admission on this point and the applicant’s statement that she relied on her counsel’s advice.” In addition, K.D. “has a Class 4 marked impairment with respect to social functioning. An individual who has issues with social functioning cannot be expected to understand the nuances around legal processes. And nor should she be penalized for an error that is not of her doing. Therefore, I accept that the applicant had a bona fide intention to appeal the decision.”
As for the extent of the delay, K.D. submitted that “it was not initially clear that she had enough objective evidence to appeal her NEB denial, however, that objective evidence would emerge over the course of her multidisciplinary catastrophic impairment assessments. The multidisciplinary catastrophic impairment assessments all took place within the 9 month and 26 day “period of delay” that the Applicant is requesting this Tribunal excuse.” The Tribunal agreed with K.D., finding that Certas “was actively involved in this file. The file was being adjusted during the time of the delay. In my view, the delay in question would not have blindsided the respondent. The length of delay is partly mitigated because the respondent conducted catastrophic impairment assessments throughout the period of delay.”
As for the third element of prejudice, the Tribunal found that the “respondent has not proffered an explanation or evidence that demonstrates how it is prejudiced by the delay…the respondent was actively involved in adjusting the file.” K.D. on the other hand, would be prejudiced “if she were denied the opportunity to move forward with her case especially given the fact that she relied on advice from her legal counsel that may have contributed to the delay.”
Finally, as for the merits, the Tribunal relied upon the fact that K.D. had been found to be catastrophically impaired. This was “quite significant in my view as there is an overlap between the tests for CAT and NEB”. Concluding, there was merit to the appeal of K.D., “and that the parties should be afforded the opportunity to present their respective positions before the Tribunal.”
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