A.G. v. Allstate Insurance Company of Canada (19-003687)

A preliminary issue hearing was held to determine whether the claimant was barred from proceeding with appealing a claim for neurological assessment that was denied because the claimant was past the two year limitation period. The claimant relied on section 7 of the LAT Act to allow for an extension of time to file an application. Vice-Chair Flude considered the justice of the case in order to determine whether an extension of time following the two year limitation period was applicable. He looked to the four factors that applied in the justice of the case: (1) an intention to appeal within the appeal period (2) the length of the delay (3) prejudice to the other party and (4) the merits of the case. The claimant did not make any submissions on an intention to appeal within the appeal period or on the length of the delay and the explanation for it. Vice-Chair Flude found those omissions to be detrimental to the claimant’s request for an extension of time because it did not allow the Vice-Chair to understand the circumstances and to determine if reasonable grounds existed. It was Vice-Chair Flude’s view that the Legislature set a two year limitation period and also gave the Tribunal the discretion to consider if any reasonable grounds to extend the limitation period. However, it was the Legislature’s intention that the discretion in section 7 of the LAT Act was to be available only in exceptional circumstances where it would be unjust to deny a claimant a remedy. In this case, the claimant did not establish anything exceptional about it and had not justified the missed limitation period. For that reason, the Vice-Chair declined to exercise any discretion in section 7. In regard to the substantive issues in dispute claiming entitlement to medical benefits for two physiotherapy treatment plans and interest, Vice-Chair Flude found the claimant failed to show the treatment plans were reasonable and necessary. The records from the extensive physiotherapy treatment showed no change in her condition as a result of the treatment. The Vice-Chair found it would be unreasonable to continue with treatment with no benefit and accepted the argument of the insurer’s assessors that further facility-based treatment would be of no medical value, instead recommending a self-directed home exercise program.