Category: Limitation Period

S.A. vs. Aviva General Insurance (19-001903)

The claimant was involved in an accident on February 13, 2016 and disputed entitlement to three treatment plans on September 18, 2018; within the two-year limitation of the denied treatment plans. The insurer argued that the application was filed with the Tribunal on January 17, 2019, beyond the two-year limitation period. Adjudicator Norris ruled in favour of the claimant, noting that the filing date of January 17, 2019 was an administrative error by the Tribunal. The claimant had provided a fax confirmation to the LAT which confirmed that the application as received on September 18, 2018. The claimant also provided certificates of service to the insurer dated September 18, 2018. The fact that the claimant re-filed the Application on January 17, 2019 due to not receiving a notice to the original September 2018 application from the Tribunal was irrelevant.

R.C. v. Intact Insurance Company (18-010864)

The insurer brought a preliminary issue hearing on the grounds that the claimant was statute-barred from proceeding with his claim for IRBs for failure to commence the application within the two year limitation period. Adjudicator Victor agreed with the insurer, and held that the application was statute-barred. The insurer’s letter denying the claimant’s entitlement to IRBs was valid, and the LAT application was filed more than two years after the expiry of the limitation period. Adjudicator Victor further noted that the claimant had not established reasonable grounds for extending the limitation period pursuant to section 7 of the LAT Act.

K.K. v. Coseco Insurance (18-002839)

The claimant disputed his MIG determination and entitlement to various medical benefits. The respondent raised a preliminary issue, arguing that the claimant was statute-barred from proceeding with his claim in respect of two of the disputed treatment plans for failure to dispute entitlement within the two year limitation period. Adjudicator Norris agreed, noting that the insurer’s denial letters were clear and unequivocal denials of the benefits and included notice of the two year limitation period, information on the claimant’s right to dispute, and medical and other reasons for the denial. Adjudicator Norris further concluded that the claimant had not met his onus of establishing that his injuries fell outside of the MIG, and was thus bound by the $3,500 funding limit.

P.V. v. Economical Insurance (19-000069)

The claimant sought reconsideration of the Tribunal’s decision that the limitation period applied to his IRB claim. The claimant had continued to work for over three years after the accident, and the insurer had denied entitlement to IRBs during that period because he did not meet the “substantial inability” test. Adjudicator Boyce granted the reconsideration based on the Court of Appeal’s decision in Tomec v. Economical. He held that the claimant could not discover his potential entitlement to IRBs until he stopped working almost four years after the accident. Because he could not discover his impairment until then, the denial of IRBs prior to the work stoppage was deemed invalid and did not start the clock of the limitation period.

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

The claimant sought entitlement to IRBs. The insurer argued that the limitation period barred the claim. Adjudicator Boyce concluded that the IRB denial was clear and unequivocal and that the limitation period expired on February 13, 2019, and that the claimant applied to the LAT on February 22, 2019. However, he allowed the claim to continue based on section 7 of the LAT Act, reasoning that the delay was minor, the claimant had a bona fide intention to appeal the denial, and the prejudice to the insurer was minimal.

J.C. v. Intact Insurance Company (18-010894)

The claimant sought entitlement to IRBs. The insurer argued that the limitation period barred the claim. Adjudicator Parish held that the limitation period barred the claim. The insurer’s denial was clear and unequivocal, and the limitation period expired May 20, 2016. The LAT application in November 2018 was out of time, and was not saved by section 7 of the LAT Act because the delay was significant and there was prejudice to the insurer. The claimant also failed to demonstrate that the merits of the case justified the Tribunal granting an extension of time.

M.Z. v. Aviva Insurance Canada (18-001324)

The claimant sought entitlement to the balance of a chiropractic treatment plan, four other treatment plans, and an award. The claimant argued the balance of the chiropractic treatment plan should be approved because the insurer failed to provide a response within 10 business days pursuant to section 38(3) of the Schedule. The insurer argued that the limitation period applied to one of the treatment plans. Adjudicator Grant found that the insured mailed the denial letter to the claimant, and it was deemed to have been received by the claimant on the fifth business day after it was mailed under section 64(18). Based on that date, the claimant’s LAT application was filed after the two-year limitation period, making the chiropractic treatment plan not payable. The other treatment plans were also found not payable based on a lack of objective supporting evidence.

R.R. v. State Farm Insurance Company (19-000226)

The claimant sought entitlement to IRBs and two treatment plans for chiropractic services. The insurer argued that the claimant was barred from proceeding with the three disputed claims because she failed to dispute the denials within the two year limitation period. Adjudicator Norris agreed with the insurer, finding that the insurer’s refusals to pay the benefits claimed were clear and unequivocal. Adjudicator Norris also declined to exercise his discretion to extend the limitation period pursuant to section 7 of the LAT Act, noting that the length of the delay was significant (nearly one year beyond the expiration of the limitation period) and that the claimant made no submissions to indicate that she had an intention to dispute the denial prior to the expiration of the limitation period.

Tomec v. Economical Mutual Insurance Company (2019 ONCA 882)

The claimant was declared catastrophically impaired seven years after the accident. The insurer had denied entitlement to further attendant care benefits and housekeeping expenses at the 104 week anniversary. The claimant sought entitlement to ACBs and HK expenses from the 104 week anniversary onwards following the catastrophic impairment designation. The insurer argued that the claims were barred by the limitation period. The Tribunal agreed with the insurer that the claims were time barred. On review, the Divisional Court upheld the Tribunal’s decision. However, the Court of Appeal reversed the decision and concluded that a degree of discoverability applied to the limitation period. The Court reasoned that the claimant could not have been expected to dispute entitlement to post-104 week ACBs and HK expenses before knowing that her injuries met the catastrophic impairment definition. The limitation period therefore did not apply to the claim.

Allstate Insurance Company v. Billard (2019 ONSC 6256)

The insurer sought judicial review of the Tribunal’s decision that the limitation period should be extended based on section 7 of the LAT Act. The Divisional Court dismissed the review on the basis that the LAT proceeding needed to first be completed in its entirety before seeking judicial review.