Category: Limitation Period

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.

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.

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

The insurer brought this preliminary issue hearing arguing that the claimant was barred from disputing the denial of non-earner benefits on the grounds that the claimant did not do so within the two year limitation period. Adjudicator Grant found that the insurer issued a valid denial of non-earner benefits which triggered the limitation period. The denial was clear and unequivocal and provided the claimant with the required information to determine whether to dispute the denial. As the claimant did not appeal in time, she was barred from proceeding with her application.

V.C. v. Unifund Assurance Company (18-005144)

The claimant applied to the LAT for NEBs. The insurer argued that the application was made after the two year limitation period. Vice Chair Shapiro agreed with the insurer and held that the application was made three months too late. He also rejected the request to apply section 7 of the LAT Act because none of the four factors were satisfied.

Q.S.Z. v. TD General Insurance Company (19-000403)

The insurer sought a preliminary issue hearing to determine whether the claimant was statute-barred from proceeding with her application for income replacement benefits for failing to dispute that insurer’s denial within the 2 year limitation. Adjudicator Derek Grant found that the insurer had failed to properly deny the claimant’s application for IRBs and the claimant was able to proceed with her claim. Adjudicator Grant based his reasons on the insurer’s letters that did not contain clear and unequivocal denials and the limitation period had therefore not been triggered.

Applicant v. TD Home and Auto Insurance Company (17-008493)

The claimant sought reconsideration of the Tribunal’s decision that his claim for ACBs and HK expenses was barred by the limitation period. Adjudicator Boyce granted the reconsideration request based on the Court of Appeal’s decision in Tomec v. Economical. The claimant’s ACBs and HK expenses had been denied in 2005. In 2015, the insurer accepted that the claimant suffered a catastrophic impairment, but refused to pay any ACBs or HK expenses based on the earlier denial. Adjudicator Boyce held on reconsideration that the claimant did not discover his claim for ACBs and HK expenses until he was determined to suffer a catastrophic impairment. He also held that the insurer’s denial in 2005 was pre-emptive and was not valid, because the claimant did not require such services at that time.

S. S. v. Allstate Canada (18-002292)

The claimant sought reconsideration of the Tribunal’s decision that the limitation period barred the claim for NEBs. Adjudicator Norris rejected the reconsideration, holding that there was no legal error made in the Tribunal’s conclusions that the claimant did not have a bona fide intention to appeal within the two year period. He also concluded that the other factors to extend the limitation period did not favour the claimant.

X.J.W. v. Certas Home and Auto Insurance Company (19-000222)

This preliminary hearing was brought to determine whether the claimant was statute barred from appealing the insurer’s denial of his claims for medical benefits and IRBs because the appeal was filed more than two years after the denials. The claimant had applied for a FSCO mediation in April 2016 in regard to the denials, and his FSCO file was closed on June 15, 2016. The claimant conceded that he did not file his LAT dispute within the two year limitation period but argued that there was confusion over the closure date of the file due to the transition to the Tribunal from FSCO. The claimant submitted that the Tribunal should extend the deadline to appeal the denials pursuant to section 7 of the LAT Act. Adjudicator Victor found no evidence to indicate an intention to apply to the LAT within the appeal period and found that the claimant’s appeal was statute-barred.

V.M.L. v. Aviva General Insurance Company (18-001713)

The claimant filed for reconsideration on a previous decision in which the Tribunal ruled that the claimant was statute barred from proceeding with her appeal of the denial of IRBs, and the Tribunal’s decision not to extend the limitation period under section 7 of the LAT Act. Adjudicator Johal allowed the case to proceed, noting that a delay of 13 days was not considered a significant delay by any means. The claimant had also given evidence that it was her intention to appeal the denial of IRBs, and that the delay was not her fault as an employee at the law firm failed to follow her instructions and file the appeal when instructed to do so. The insurer also failed to provide any evidence as to the prejudice it would suffer should the matter be allowed to proceed, nor did it provide any submissions with respect to section 7 of the LAT Act.

M.T.G. v. Aviva General Insurance (17-002122)

The claimant requested an extension under section 7 of the LAT Act to extend the limitation period beyond the two year statutory limits to dispute his entitlement to IRBs. The insurer denied IRBs on February 15, 2015, the claimant then initiated a FSCO dispute with a mediation scheduled for May 28, 2016. Claimant’s counsel submitted a Request for Failed Mediation Report to FSCO on May 26, 2016 and FSCO closed the file on May 28, 2016. The two year limitation expired on February 15, 2017 and the claimant filed with the LAT on March 31, 2017. Vice Chair Flude concluded that the claimant had failed to prove there was a clear intention to appeal during the limitation period, as he had been undeniably aware of the denial letter and limitation since at least February 6, 2017 when settlement discussions took place and did not move expeditiously to file a dispute. The adjusting notes from this insurer also noted that the claimant’s counsel had not yet decided whether to appeal the denial, and would speak to the claimant and get back to the adjuster. The dispute was not filed until over a month later on March 31, 2017. Vice Chair Flude also noted that the claimant had failed to provide any evidence that should his extension be allowed to proceed that he would be entitled to IRBs, instead providing a statement claiming he was not working and on social assistance with no evidence of the same.