Category: Court of Appeal

The insurer appealed the Divisional Court’s decision that discoverability applied to the claimant’s IRB claim and that the limitation period did not bar the claim. The claimant was injured in an April 2016 accident. He applied for accident benefits in May 2016, but indicated that he had returned to work due to financial reasons. The insurer denied IRBs in May 2016 for that reason. The claimant continued to work for 16 months, but underwent hip surgery in August 2017 and suffered a stroke in April 2018. In December 2019, the claimant submitted a new Disability Certificate to the insurer. The insurer responded, reiterating that IRBs had been denied in 2016. The Court of Appeal upheld the decision, holding that discoverability applied to the IRB denial, and that the claimant had not applied for IRBs in 2016, meaning that the insurer could not have denied the claim. The limitation period for disputing IRBs therefore did not begin in 2016.

The insurer appealed the Divisional Court’s decision that the limitation period on IRBs did not commence because the denial did not provide any medical reasons. The insurer argued that the only basis for denial was the claimant’s return to work (i.e. an “other” reason), and that it was not required to state a medical reason where one did not exist. The Court of Appeal agreed, reversing the Divisional Court’s decision. The Court held that the phrase “medical and any other reason” used the word “and” in a joint and several sense. The Court recognized that some cases will have both medical reasons and other reasons; some cases will have only medical reasons or only other reasons. The insurer was not required to invent a medical reason for the denial where one did not exist. The denial of further IRBs based on the return to work complied with section 37, and was sufficiently clear and unequivocal to trigger the limitation period.

The claimant appealed the Divisional Court’s dismissal of her judicial review application, in which the Divisional Court held that judicial review of a LAT decision should only be granted in exceptional circumstances. The Court of Appeal upheld the decision dismissing the judicial review, but modified the grounds on which judicial review could be sought. The Court of Appeal held that judicial review of the LAT should only be heard in the rare case where the adequate alternative remedies of reconsideration, together with a limited right of appeal, are insufficient to address the particular factual circumstances of a given case. The Divisional Court retains the discretion to hear and determine judicial review applications. Where a party commences both an appeal and a judicial review of a LAT decision, the matters ought to be joined and heard simultaneously. In terms of the claimant’s judicial review, the Court of Appeal held that the Divisional Court correctly dismissed it because the LAT’s decision that the claimant disputed her entitlement to IRBs outside of the limitation period was reasonable.

The claimant was declared catastrophically impaired seven years after the accident. The insurer had denied entitlement to further attendant care benefits and housekeeping expenses at the 104 week anniversary. The claimant sought entitlement to ACBs and HK expenses from the 104 week anniversary onwards following the catastrophic impairment designation. The insurer argued that the claims were barred by the limitation period. The Tribunal agreed with the insurer that the claims were time barred. On review, the Divisional Court upheld the Tribunal’s decision. However, the Court of Appeal reversed the decision and concluded that a degree of discoverability applied to the limitation period. The Court reasoned that the claimant could not have been expected to dispute entitlement to post-104 week ACBs and HK expenses before knowing that her injuries met the catastrophic impairment definition. The limitation period therefore did not apply to the claim.