Category: Limitation Period

R.S. v Pafco Insurance Company (19-006331)

The claimant sought catastrophic determination as a result of his accident-related injuries, and underwent assessments in preparing his OCF-19. After receiving the claimant’s CAT Application, the insurer requested that the claimant attend various IEs in order to assess him for CAT. The claimant refused to attend the neuropsychological IE, arguing that it was not reasonably necessary to determine CAT. The insurer raised a preliminary issue to determine whether the claimant was barred from proceeding with his CAT Application, and further raised a second preliminary issue to determine whether the claimant is barred from proceeding with the remaining issues in his application (medical benefits and IRBs) as he disputed these denials past the two year limitation period. Adjudicator Boyce held that the claimant was barred from proceeding with his CAT Application until he attends the neuropsychological IE, finding that there was a reasonable connection between the requested IE and the alleged impairments given the claimant’s reported headaches and post-concussion syndrome. He further held that the claimant was barred from proceeding with the remaining issues in dispute, as he failed to appeal the insurer’s denials within the limitation period. Notably, Adjudicator Boyce declined to apply the decision in Tomec, finding that the discoverability rule did not apply to IRBs and that an insured’s loss is crystallized upon receipt of a notice of termination, and further declined to apply section 7 of the LAT Act to extend the limitation period.

Bouianov v. Travelers Insurance (19-005097)

The claimant sought entitlement to treatment outside of the MIG and benefits proposed in two treatment plans. The insurer raised the preliminary issue of whether the claimant was barred from proceeding with the claim as he failed to commence his application within two years after the insurer’s refusal to pay the amount claimed. The LAT application was filed by fax at 6:20 p.m. on the two-year anniversary of the denial of benefits. As it was filed after 5 p.m. on a Friday, Adjudicator Go found that it was deemed to have been filed on the following Monday, based on the deemed receipt rule in the LAT Rules. Adjudicator Go held that LAT adjudicators have the discretion to extend the limitation period pursuant to s. 7 of the LAT Act, and decided not to exercise her discretion in this matter based on a finding that there was no merit to the appeal and there was a lack of evidence of a bona fide intention to file within the timeline. The claimant was barred from proceeding with the claim.

R.M. v. Certas Home and Auto Insurance Company (18-007521)

The claimant sought entitlement to NEBs and medical benefits. The insurer argued that the claims were barred by the limitation period. The claimant argued that her substance abuse issues prevented her from filing an application in a timely manner, and requested an extension of time under section 7 of the LAT Act. Adjudicator Johal concluded that the Tribunal had jurisdiction to extend the limitation period under section 7, but the claimant had to meet the four-part test in order to be granted consideration. Upon review of the evidence, Adjudicator Johal noted that although the claimant did have drug issues, there was no evidence presented that she intended to dispute the denial during the two-years after the denial; furthermore, the nine month delay in filing an application was not supportive of a clear intent to dispute the issues. As the overall weight of the presented evidence considered did not show clear intent on the part of the claimant, nor a reasonable explanation as to why she could not file the LAT application sooner, the issues in dispute were barred by the limitation period.

D.G. v. RSA Insurance Company (19-004884)

The claimant sought entitlement to ACBs and HK expenses. The insurer argued that the claimant was barred from contesting the denials as she filed her application over two years after the benefits were denied. Adjudicator Mazerolle ruled that the claimant was allowed to proceed with her claim in accordance with Tomec v. Economical. He noted that the claimant only “discovered” her entitlement to post-104 week ACBs and HK expenses after she was deemed to suffer a catastrophic impairment, and any previous denial would not trigger the limitation period.

D.S. v Economical Insurance Company (19-004414)

The claimant was involved in an accident in Quebec and elected to receive SABS in accordance with the SAAQ system. The insurer paid a lump sum in accordance with the SAAQ. The claimant disputed the lump sum, but the insurer argued that the limitation period applied. Adjudicator Grant concluded that the dispute was barred by the limitation period. The LAT application was filed more than two years after the insurer’s decision, and the claimant could not prove that she was unable to file a dispute within two years.

U.Y. v. TD Insurance Meloche Monnex (18-002397)

The claimant filed a request for reconsideration arising from a decision in which the Tribunal found that her application for IRBs and housekeeping and home maintenance benefits were statute-barred as a result of the two-year limitation period. Adjudicator Maedel dismissed the request for reconsideration on the grounds that the claimant received a valid denial of the IRB and the housekeeping and home maintenance benefits which included a Dispute Resolution Form. The claimant was accordingly made aware of the dispute resolution process, yet she failed to file her application with the Tribunal within the statutory two-year limitation period.

U.Y. v. TD Insurance Meloche Monnex (18-002397)

The claimant filed a request for reconsideration arising from a decision in which the Tribunal found that her application for IRBs and housekeeping and home maintenance benefits were statute-barred as a result of the two-year limitation period. Adjudicator Maedel dismissed the request for reconsideration on the grounds that the claimant received a valid denial of the IRB and the housekeeping and home maintenance benefits which included a Dispute Resolution Form. The claimant was accordingly made aware of the dispute resolution process, yet she failed to file her application with the Tribunal within the statutory two-year limitation period.

Y.M. v Security National Insurance Company (19-001141)

The claimant sought removal from the MIG, and entitlement to various medical benefits. The insurer argued that the claimant was barred from disputing the claimed benefits due to the limitation period and due to failure to attend an IE. Adjudicator Grant agreed that two of the disputed medical benefits were barred by the limitation period, and that the claimant failed to attend a scheduled IE without reasonable explanation. Finally, he concluded that the claimant’s injuries fell within the MIG.

R.S. v. Pafco Insurance Company (19-006331)

The claimant sought a determination that he sustained a catastrophic impairment, and entitlement to IRBs and various medical expenses. The insurer argued that the claimant was barred from proceeding with a catastrophic impairment determination until he attended a neurological IE, and also argued that the claimant was barred from proceeding with the claims for IRBs and medical benefits due to the limitation period. Adjudicator Boyce found that the insurer’s proposed IE was reasonably necessary for a determination of CAT and the request was timely, made in good faith, and appropriate. Therefore, Adjudicator Boyce concluded that the claimant was barred from proceeding with the CAT dispute until the he attended the IE. Secondly, Adjudicator Boyce found that the claimant’s delays of 130 and 334 days were unacceptable. The claimant failed to demonstrate why not extending the limitation would prejudice him or why the Tribunal should assign greater weight to this factor.

Applicant v. Co-operators General Insurance Company (18-003622)

The claimant was involved in an accident in 2003. His entitlement to ACBs and HK expenses were denied in 2012. He applied to the LAT disputing further entitlement. The insurer argued that the claimed were barred by the limitation period. Adjudicator Helt concluded that the limitation period did not apply because the claimant was deemed catastrophically impaired as a result of the accident in 2015, and the Court of Appeal’s reasons in Tomec. In order for the limitation period to apply to ACBs or HK expenses, there had to be a new denial to trigger the limitation period. Such a letter was sent to the claimant in December 2017, but he applied to the LAT within two years of that date.