Category: Limitation Period

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.

S.S. v. RSA Insurance (19-005229)

The claimant sought removal from the MIG and entitlement to two medical benefits. The claimant refused to attend IEs and applied to the LAT more than two years after the denials. Adjudicator Boyce held that the limitation period applied and that he would not exercise discretion under section 7 of the LAT Act. The claimant provided no evidence of a bona fide intention to dispute the denials, and the delay was over six months. There would also be prejudice to the insurer because of the missed opportunity to assess the claimant. Furthermore, the claimant’s failure to attend the scheduled IEs barred the claimant from disputing entitlement to the two medical benefits. Because no treatment plans were permitted to be disputed, the claimant could not proceed with a standalone MIG dispute.

F.S. v. The Dominion of Canada General Insurance Company (19-007563)

The claimant sought removal from the MIG and entitlement to four medical benefits. Adjudicator Johal found that three of the four medical benefits were barred by the limitation period. The denials were clear and unequivocal. Section 7 of the LAT Act did not apply because the claimant failed to show a bona fide intention to dispute entitlement within the limitation period or an explanation for the delay. Regarding the remaining disputes, Adjudicator Johal concluded that the claimant’s injuries fell within the MIG.

S.K. v. Technology Insurance Company Inc. (19-003749)

The claimant sought entitlement to social work services, HST on treatment plans, and the cost of CAT assessments. Adjudicator Chakravarti held that the limitation period applied to the social work services because the denial of the proposed rate was clear and unequivocal. Section 7 of the LAT Act did not apply because the claimant did not provide any details as to why the dispute was brought outside the limitation period. The limitation period did not apply to the HST claim because the insurer provided contradictory reasons in the denial letter. The limitation period did not apply to the CAT assessments either because the denial letter only indicated that the insurer had not made a decision regarding the proposed costs.

P.W. v. Certas Home and Auto Insurance Company (19-002813)

The claimant disputed entitlement to IRBs. The insurer denied IRB entitlement in March 2014. Adjudicator Farlam held that the denial of IRBs was clear and unequivocal and that the limitation period expired in March 2016. The insurer’s subsequent communications requesting further information regarding work status did not restart the limitation clock, nor did each subsequent denial of IRBs constitute a new denial from which the limitation period ran. Adjudicator Farlam rejected the claimant’s argument that the discoverability principle from Tomec v. Economical applied; the claimant knew that she was not working after the denial of IRBs and chose not to dispute her entitlement. Finally, Adjudicator Farlam held that section 7 of the LAT Act should not be used to extend the limitation period because the claimant did not demonstrate a bona fide or good faith intention to appeal within the appeal period.

Z.M. v. State Farm Mutual Automobile Insurance Company (18-012546)

A preliminary issue hearing was held to determine whether the claimant was barred from proceeding with her application for non-earner benefits because the two-year limitation period had expired. The claimant argued that she did not discover that she was able to dispute the non-earner benefit until she retained a lawyer five years after the accident because she was illiterate in English. Adjudicator Grieves found that the insurer provided a clear, unequivocal, valid denial of the non-earner benefits and the denial satisfied all of the requirements set out in Smith v. Co-Operators. With regards to discoverability, the adjudicator held that the discoverability date was the date on which a reasonable diligent person would have known they had a cause of action. Between the date of the denial until hiring a lawyer, the claimant took no action to pursue her claim. The claimant further pleads that the limitation period should be extended under section 7 of the LAT. However, Adjudicator Grieves was not satisfied that there were reasonable grounds for applying for the extension or granting relief. The claimant was barred from proceeding with her claim.