Yatar v. TD Insurance Meloche Monnex (2021 ONSC 2507)

The claimant appealed and sought judicial review of the Tribunal’s decision that her claims were barred by the limitation period. The Court dismissed both the appeal and the judicial review. The Court explained that statutory appeals are limited to strict questions of law, and the claimant had failed to identify an error of law on which to appeal; rather, she was appealing on a question of mixed fact and law, which were not subject to the statutory appeal. Judicial review, on the other hand, was a discretionary remedy that was only to be granted in exceptional circumstances. The Court noted that the Legislature had intended to restrict matters on which the Tribunal could be reviewed, and acknowledged that the Tribunal’s reconsideration process weighed in favour of a more limited right to judicial review. Again, the nature of the alleged error – being one of mixed fact and law – meant that the Court was to be highly deferential, and only intervene if the error is so serious as to constitute an error of law.

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.

Jones v. Aviva Insurance Canada (19-013768)

The claimant sought entitlement to NEBs. The Disability Certificate was submitted 126 weeks after the accident. The insurer argued that the dispute was barred due to the limitation period. Vice Chair McGee found that the insurer could not deny the NEBs prior to submission of the Disability Certificate, so the limitation period did not apply. Vice Chair McGee left it to the substantive hearing whether other sections of the SABS barred the claimant’s NEB claim.

M.R. v. Allstate Insurance Company of Canada (18-012729)

The claimant was involved in multiple accidents between 1991 and 2003. A preliminary hearing was held in relation to benefits claimed following a September 1996 accident and whether certain disputed benefits were captured by various releases signed by the claimant. The claimant sought entitlement to ACBs, HK expenses, transportation expenses, and home modifications. In addition to the settlement issue, the insurer argued that the claimant was time-barred from pursuing the home modifications. Adjudicator Kowal held that the releases signed by the claimant covered all ACBs and HK expenses, and all transportation expenses up to 2016. The home modification was not captured by the release because it was considered a rehabilitation benefit, which was not covered by any of the releases. The limitation period did not apply to the claim for home modification. The insurer denied one submission for home modification in 2010, but the denial was unclear as the insurer included a list of things it would pay for, but did not state which modifications were denied. Further, the claimant submitted a new proposal for home modification in October 2017, which was considered a new application for the benefit. The insurer initially agreed to pay for the entire treatment plan, and then retracted the approval. While the insurer’s response was not clear and unequivocal, the claimant applied to the LAT less than two years after submission of the treatment plan, so the limitation period did not apply regardless.

Aquino v Aviva Insurance Company (19-006577)

A minor claimant applied to the LAT disputing entitlement to medical benefits and the cost of an examination. The insurer argued that the claimant was statute-barred, as the claimant filed her LAT dispute more than 2 years after the denials of benefits. The claimant argued that as she was a minor, she was not statute-barred because she filed the LAT application within two years of turning 18 years old. The insurer argued that the claimant had a litigation guardian to protect her interests and therefore, the claimant did not have a reasonable excuse for the late application and her dispute was outside the limitation period. Adjudicator Johal agreed with the insurer. Adjudicator Johal found that this was not a case to override the requirements of the Litigation Act and that the claimant had not satisfied that she had a bona fide intention to apply to the LAT within the appeal period and that she did not prove that there was a reasonable explanation for the delay. Adjudicator Johal also agreed that the insurer was prejudiced due to the uncertainty and delay over the adjudication of benefits.

M.K. v. TD General Insurance Company (19-003616)

The claimant sought reconsideration of the Tribunal’s decision that she was statute-barred from proceeding with her application for NEBs because she did not appeal within the two-year limitation period. The claimant submitted her Reconsideration Request two days after the limitation period had expired, relying on the state of emergency arising out of the COVID-19 pandemic, and requested an extension of time. Adjudicator Grant denied the claimant’s request, noting that the claimant had not submitted any kind of evidence that the pandemic had in any way caused or contributed to the delay. Adjudicator Grant also found that, in any event, the claimant’s request for reconsideration was without merit. The Tribunal considered the evidence of submissions of the parties, and right found that the claimant’s applicable regarding NEBs was beyond the limitation period.

Y.G. v. TD General Insurance Company (18-012431)

The claimant sought entitlement to the cost of psychological and orthopaedic assessments. The insurer argued that the disputes were barred by the limitation period. The insurer denied the claimed assessments by letter dated March 1, 2016 due to insufficient medical documentation to support injuries outside of the MIG. The letter also advised the claimant that IEs would be arranged. The claimant had commenced her first LAT application on November 15, 2016, which was dismissed on the basis that the claimant failed to attend an IE. The claimant subsequently attended IEs. The claimant’s injuries were found to fall outside of the MIG. The claimant then submitted a second application on December 12, 2018. Adjudicator Moten found that the claimant did not commence her application within two years of the initial denial. However, he ordered the limitation period extended under section 7 of the LAT Act. The claimant had a bona fide intention to appeal the denials within the limitation period, and the claimant’s representative had communicated the intention to the insurer. The delay in appealing was 9.5 months, which Adjudicator Moten found not to be egregious. Finally, since the claimant suffered non-minor injuries, there was potential merit to the claims.

N.V. v. Allstate Insurance Company of Canada (18-008774)

The claimant sought reconsideration of the Tribunal’s decision that the limitation barred the IRB claim and that section 7 of the LAT Act should not apply to extend the limitation period. Adjudicator Boyce rejected the reconsideration request. He held that no error was made by the Tribunal in concluding that the insurer’s denial was clear and unequivocal. The claimant’s return to work was a valid reason for the IRB denial and complied with section 37(4). Adjudicator Boyce also rejected the argument that Tomec created a new date of discoverability for the IRB claim. He reasoned the Tomec was only applicable in the case of a catastrophic impairment finding (which was not present in this claim).

S.W. v. Aviva General Insurance Company (19-002127)

The insurer sought reconsideration of the Tribunal’s decision to allow the claimant to extend the limitation period under section 7 of the LAT Act. The insurer argued that the Tribunal did not have jurisdiction to extend the limitation period, or alternatively, that the facts of the case did not warrant the extension. Adjudicator Boyce dismissed the reconsideration request. He rejected the argument that the Tribunal did not have jurisdiction to extend the limitation period, noting that only a few adjudicators came to the opposite conclusion. Applying the four factors to the present claim, Adjudicator Boyce found no error in how the Tribunal approached the request to extend the limitation period. He reiterated that the delay was only a few business days and that the claimant’s failure to dispute within the timeline was due to clerical errors.

M.L. v. Unifund Assurance Company (19-009999)

The claimant applied to the LAT seeking IRBs following her 2015 accident. She had returned to work after the accident, and the insurer denied entitlement to IRBs. After the 104 week mark, the claimant stopped working and submitted an Election to the insurer claiming IRBs. The insurer again denied IRBs, arguing that IRBs had been denied four years prior and the claimant failed to establish entitlement to IRBs within the first 104 weeks. Notably, the claimant was deemed to have suffered a catastrophic impairment as a result of the accident in 2019. Adjudicator Boyce found that the limitation period applied to the IRB claim, and the claimant failed to establish IRB eligibility because she did not suffer a substantial inability within the first 104 weeks after the accident, regardless of her deteriorating condition after the 104 week mark. He rejected the claimant’s argument that Tomec would create a new date of discoverability for the IRB claim.