The claimant appealed and sought judicial review in relation to five LAT decisions. The accident that gave rise to the claims occurred in 2007. The issues in dispute in the LAT hearings included the limitation period and entitlement to IRBs and medical benefits. The Court examined whether the LAT decisions disclosed an error of law, were unreasonable, or were rendered in a manner that breached procedural fairness. The appeals and judicial review applications were dismissed.
The claimant appealed the Tribunal’s decision that her claim for IRBs was barred by the limitation period. One of the main issues was whether the claimant was entitled to pursue judicial review of the Tribunal’s decision, in addition to the statutory right of appeal. The Tribunal’s decision was upheld by the lower appellate courts, and the lower courts held that judicial review was limited to exceptional circumstances. The Supreme Court allowed the appeal, holding that the claimant was entitled to pursue both the statutory right of appeal and judicial review. The Court also sent the matter back to the Tribunal for review of the denial of IRBs, as the Tribunal did not consider the effect of the reinstatement of IRBs on the subsequent denial.
The claimant appealed the Tribunal’s decision that the limitation period barred his IRB claim. He returned to work one day after the accident. The insurer denied the claim for IRBs at that point in May 2016. The claimant then went off work 16 months later and required hip surgery. He applied for IRBs in January 2019. The insurer argued that the May 2016 constituted a valid denial triggering the limitation period. The claimant argued that his IRB claim was not discoverable until he stopped working. The Court granted the appeal, agreeing with the claimant. The Court held that the Tribunal failed to take into account the discoverability principles set out in Tomec v. Economical, and that the denial of IRBs in May 2016 prior to the claimant’s stoppage of work was contrary to the consumer protection goals of the SABS.
The claimant appealed the LAT’s decision that the limitation period barred the application. The Court allowed the appeal and remitted the matter to the Tribunal for a new hearing. The Court found the Tribunal erred in concluding that the denial letter was received on the day it was authored, as no evidence was before the Tribunal to prove the date of receipt. The Court also held the Tribunal erred in putting the onus on the claimant to refute the date the insurer alleged the denial letter was received by the claimant in the mail.
The respondent filed a request for a partial reconsideration of a decision in which the Tribunal found that the clamant was not statute barred from disputing the respondent’s denial of pre-104 attendant care benefits within the two year limitation period. The claimant argued that the Tribunal erred in law in its determination that the limitation period did not apply to the claimant’s entitlement to pre-104 ACBs and, in particular, that the Tribunal erred in its application and interpretation of the principle of discoverability as highlighted in Tomec. Adjudicator Hines granted the respondent’s request in part, finding that the Tribunal erred in law in determining that the claimant was not statute-barred from disputing the respondent’s denial of ACBs within the two-year limitation period. She agreed with the respondent that the Tribunal did not properly consider the fact that the claimant’s entitlement to pre-104 ACBs was not dependent on a CAT designation, as the claimant had not yet applied for CAT determination. As such, the principle of discoverability did not apply during this period and there was no barrier to the claimant disputing the respondent’s denial. However, Adjudicator Hines found that she only erred in applying the rule of discoverability to the respondent’s denial of the first Form 1, as the second Form 1 was denied within two years of the LAT Application. Consequently, the Tribunal’s decision was varied to indicate that the claimant was not entitled to payment of ACBs from September 2015 to June 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 insurer raised a preliminary issue and argued that the claimant’s claim for NEBs was statute barred. The claimant had failed to submit an OCF-3 with her application pursuant to s. 36 and had failed to apply to the LAT within two years of its refusal to pay NEBs pursuant to s. 56 of the SABS. Adjudicator Grant noted that the claimant had submitted her OCF-3 over four years after the date of her accident, despite the insurer’s letter requesting that she submit an OCF-3 and its letter advising the claimant that her NEBs were denied due to her failure to submit an OCF-3. Adjudicator Grant found that the claimant’s application for NEBs was statute barred. He refused to exercise his discretion to grant an extension under s. 7 because of the length of the delay, the lack of evidence supporting the claimant’s intention to appeal, and the prejudice suffered by the insurer due to the delay.
The claimant was denied benefits for non-compliance with s. 44 of the SABS after failing to attend psychological and physical insurer’s examinations . The claimant appealed to the LAT and was found statute-barred based on the two-year limitation period and non-compliance with s. 44. The limitation period was paused under O.Reg 73/20 due to COVID-19. The Tribunal added 183 days in addition to the two-year limitation period in their calculation; however, the claimant still fell outside the prescribed limits period. The limitation period was deemed to be a hard limit and the Tribunal refused to exercise their s.7 discretion to extend it as the claimant did not request the extension. The insurer was diligent in rescheduling the IE appointments twice and provided notice of the appointment and notice that they were missed. The insurer must prove to the Tribunal that the notice of examination complies with the SABS. It was held that the notice of examination was compliant. Tribunal refused to exercise its s. 7 discretion because the claimant did not provide a reasonable explanation for non-attendance at the IEs.
The claimant applied to the LAT seeking entitlement to NEBs and medical benefits. The insurer argued that the claimant was barred from seeking entitlement to the benefits because he did not dispute the denials within the two-year limitation period. The accident occurred in December 2018, the insurer denied entitlement to NEBs and medical benefits between January and March 2019, and the LAT application was filed in October 2021. The claimant was a minor at the time of the accident. He argued that entitlement to NEBs should be considered discovered when he became eligible on his 18th birthday (September 2020) and, accordingly, the LAT application was within the two-year limitation period. He requested an extension of time with regards to the medical benefits. Adjudicator Kaur held that nothing in s. 36 of the SABS sets out a separate process for applying for NEBs for minors and that nothing in s. 36 makes it a requirement to be 18 to apply for NEBs. Adjudicator Kaur found that the claimant met the eligibility requirement to apply for NEBs under s. 12(1)2i of the SABS at the age of 16 when he was a full-time student (even though an insurer is not required to pay NEBs before an insured is 18 years old). Adjudicator Kaur was not persuaded by the discoverability argument and found that the claimant applied to LAT after the two-year limitation period had expired. Adjudicator Kaur declined to extend the limitation period pursuant to s. 7 of the LAT Act. The application was dismissed.
Both the insurer and the claimant appealed the Tribunal’s decision that the claimant was entitled to IRBs up to the 104 week mark. The insurer appealed the finding that the limitation period did not bar the IRB claim because the denial was not clear and unequivocal. The claimant appealed the finding that she was not entitled to post-104 week IRBs. The Court dismissed both appeals. Regarding the limitation period, the Court noted that the matter was one of mixed fact and law. The Tribunal’s finding that the denial was not clear and unequivocal was not open to appeal as it was not an error of law. Regarding the post-104 week IRBs claim, the Court held that the only applicable disability test is the “complete inability” test in the SABS. The Court rejected the claimant’s argument that the standard described in Burtch v. Aviva (a test stating that suitable employment means employment in a competitive, real-world setting, considering an employer’s demands for reasonable hours and productivity and a test that the work should also be comparable in terms of status and wages), as it was not stated in the SABS. The Tribunal held that the claimant had reasonably suitable alternative employment available to her, and that she had some functional ability to work in the retail sector. As such, there were no reviewable legal errors for the Court to address.
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150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP