Higashi v. Western Assurance Company (2020 ONSC 7616)

The claimant appealed the Tribunal’s decision that her claim for IRBs was barred by the limitation period. She argued that the insurer’s denials were invalid because the insurer did not provide copies of the IE reports to the practitioners who completed the Disability Certificates. The Court agreed with the Tribunal that the insurer’s failure to provide the IEs was not fatal to the limitation period. The insurer communicated all of the information required to the claimant to enable her to decide whether to dispute her entitlement.

V.O. v. Aviva General Insurance (19-002218)

The claimant sought entitlement to the cost of a psychological assessment. The insurer argued that the limitation period barred the claim. Adjudicator Driesel agreed that the proposed assessment was denied more than two years before the LAT application. The denial was mailed to the claimant, which is a permitted method under the SABS. While no proof of mailing was filed, there was no evidence filed by the claimant or the legal representative indicating that the letter was not received. No arguments were made regarding section 7 of the LAT Act.

S.D-T. v. Wawanesa Mutual Insurance Company (19-009280)

The claimant sought entitlement to IRBs and psychological treatment. A preliminary hearing was held to determine whether the claimant was statute barred from proceeding with her claim for failure to dispute the following issues within the two year limitation period. Vice Chair Farlam found the claimant’s application was statute-barred and dismissed the claims. She found that the insurer’s correspondence denying IRBs and medical benefits was clear and unequivocal. Vice Chair Farlam rejected the claimant’s argument that a request for further medical information or continuing to assess entitlement to benefits extended the limitation period. Finally, the Tribunal declined to extend the limitation period under section 7 of the LAT Act. Although the delay was under two months, Vice Chair Farlam noted that the 104 week mark was a critical period for adjusting entitlement to IRBs, and there would be prejudice to the insurer if the claimant was permitted to proceed with the dispute.

F.K. v. TD Home and Auto Insurance Company (18-008114)

The claimant sought entitlement to NEBs, ACBs, and psychological treatment. Adjudicator Gosio rejected the claims for NEBs and ACBs, and found that the psychological treatment plan was disputed more than two years after the denial. The claimant failed to lead sufficient evidence that the accident was the cause of her impairments, as she had extensive pre-accident injuries and impairments. Adjudicator Gosio also rejected the claimant’s argument that the “material contribution” test should apply. Regarding the claim for ACBs, the adjudicator again noted that the claimant was receiving personal care in relation to an earlier accident and that she failed to prove that further care was required as a result of the subject accident. The disputed psychological treatment was denied more than two years prior to the LAT application.

F.G. v. Aviva General Insurance (19-002587)

A preliminary issue hearing was held to address whether the limitation period barred the claimant’s IRB dispute. Adjudicator Norris held that the limitation period applied. The IRB denial was clear and unequivocal, and the limitation period did not “restart” when the insurer re-iterated its denial of IRBs in subsequent correspondence. Adjudicator Gosio did not extend the limitation period under section 7 of the LAT Act. The length of the delay was more than six months, there was no evidence of bona fide intention to appeal within the two year limitation period, the insurer would be prejudiced in its adjusting of the claim if the dispute was permitted to proceed, and there was insufficient evidence in support of the merits of the appeal.

R.L. (Litigation Guardian) v. Allstate Insurance Company of Canada (18-005036)

A preliminary issue was heard as to whether the claimant’s NEBs appeal was barred by the limitation period. Adjudicator Johal concluded that the limitation period barred the appeal and that the case did not warrant an extension under section 7 of the LAT Act. The claimant argued that she did not have the requisite mental capacity during the limitation period and that it should be stayed during the incapacity. The adjudicator held that the Tribunal did not have the power to suspend or stay the limitation period in the SABS, but considered the argument in relation to section 7 of the LAT Act. Adjudicator Johal did not extend the limitation period, reasoning that the claimant failed to provide evidence that a mental incapacity existed back to the time frame of the NEB denial. The evidence did not show a bona fide intention to appeal, the delay in appealing the denial was 5.5 years, and there was potential prejudice to the insurer.

S.J. v. Allstate Canada (19-001156)

The claimant sought entitlement to ACBs. The insurer argued that the claim was barred by the limitation period. Adjudicator Johal agreed that the claim was brought after the expiry of the limitation period, but extended the limitation period under section 7 of the LAT Act. The claimant showed a bona fide intention to dispute future ACBs through an earlier partial release that covered only past benefits up to a date less than two years before the LAT dispute was filed. This left the claimant with the belief that he was not prejudiced in disputing future ACBs. The insurer was unable to show any prejudice arising from the limitation extension. Finally, the fact that the claimant suffered a catastrophic impairment suggested that there could be merit to the claim. Finally, the adjudicator rejected the insurer’s argument that the Tribunal did not have jurisdiction to extend the limitation period under the LAT Act.

O.D. v. Allstate Insurance Company of Canada (19-008965)

The claimant sought entitlement to NEBs. The insurer argued that the dispute was barred by the limitation period. Adjudicator Johal concluded that the claimant was out of time to dispute NEBs. Although the denial of NEBs was not technically correct (the claimant, as a self-employed person, could nevertheless claim NEBs), the denial did not need to be legally correct in order to constitute a valid denial. Adjudicator Johal also held that section 7 of the LAT Act should not be used to extend the limitation period. The claimant could not demonstrate that he had bona fide intentions to appeal the denial, the dispute was made over eight months late, and the insurer could suffer prejudice from the delay.

K.D. v. TD Insurance Meloche Monnex (18-008965)

The claimant sought reconsideration of the Tribunal’s decision that she was barred from pursuing her claim for caregiver benefits and housekeeping expenses. Adjudicator Norris rejected the reconsideration request. He reiterated that the insurer was not required to wait for a new Disability Certificate before requesting an IE, and that the IE report did not need to be sent to the claimant’s health care provider because a new Disability Certificate was not provided by the claimant.

C.A. v. Allstate Insurance Company of Canada (19-005816)

The claimant sought entitlement to IRBs. The insurer argued that the dispute was initiated beyond the two year limitation period. The claimant applied to the LAT two days late because of an earlier faxing error. The insurer was provided with the LAT application 10 days thereafter. Adjudicator Johal held that the dispute was not brought within the limitation period, but that section 7 of the LAT Act should be used to extend the limitation period. The claimant had a bona fide intention to dispute the IRB denial, and the length of the delay (which was caused by technical issues) was minimal. There was no prejudice to the insurer due to the delay. The adjudicator rejected the insurer’s argument that the Tribunal did not have jurisdiction under section 7 of the LAT Act to extend the limitation period.