Category: Limitation Period

Patton v. Aviva Insurance Co. of Canada (2025 ONSC 4234)

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Post date August 20, 2025
No Comments on Patton v. Aviva Insurance Co. of Canada (2025 ONSC 4234)

The claimant appealed the Tribunal’s decision that his IRB claim was barred by the limitation period. The claimant initially made an application for IRBs, but the returned to full time work. The claimant subsequently went off work more than three years later. He argued that his IRB claim was not discoverable until he went back off work. The Tribunal disagreed, holding that the insurer’s denial of IRBs when the claimant returned to work was sufficient to trigger the limitation clock, and that the claimant did not dispute entitlement within two years. The Court dismissed the appeal, holding that the Tribunal applied the law correctly. The Court held that the initial denial was clear and unequivocal. Subsequent communications by the insurer regarding calculation of the IRB for the period the claimant was initially off work did not re-start the limitation clock. Finally, the Court held that the claimant did not discover his claim for IRBs after going off work a second time, and that the claimant could not “re-apply” for post-104 week IRBs.

Traders General Insurance Company v. Rumball (2025 ONSC 779)

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Post date February 14, 2025
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The insurer sought judicial review of the Tribunal’s decision that the claimant’s IRB entitlement was barred by the limitation period. The Tribunal had found that the denial in 2015 was not clear or unequivocal because it stated that if the claimant stopped working again, she could submit a new Disability Certificate to determine eligibility. The Court dismissed the judicial review, finding that the Tribunal’s decision was reasonable, and that there was no unfairness to the insurer in the hearing process.

The Personal Insurance Company v. Tagoe (2024 ONSC 894)

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Post date November 12, 2024
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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.

Landa v. The Dominion of Canada General Insurance Company (498/21; 152/22; 396/23; 397/23)

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Post date June 21, 2024
No Comments on Landa v. The Dominion of Canada General Insurance Company (498/21; 152/22; 396/23; 397/23)

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.

Yatar v. TD Insurance Meloche Monnex (2024 SCC 8)

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Post date March 15, 2024
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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.

Tagoe v. The Personal Insurance Company (2023 ONSC 5715)

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Post date October 13, 2023
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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.

Nguyen v. Economical Mutual Insurance Company (2023 ONSC 2541)

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Post date April 28, 2023
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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.

ZR v. Gore Mutual Insurance Company (18-000017)

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Post date March 16, 2023
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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.

Varriano v. Allstate Insurance Company of Canada (2023 ONCA 78)

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Post date February 6, 2023
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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.

Chavez v. Unifund Assurance Company (20-011594/AABS)

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Post date January 17, 2023
No Comments on Chavez v. Unifund Assurance Company (20-011594/AABS)

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.

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