Category: Limitation Period

A.F. v. North Blenheim Mutual Insurance Company (16-002336)

The claimant sought reconsideration of the Tribunal’s decision that he was barred from seeking entitlement to certain benefits due to the limitation period. In particular, he argued that section 7 of the LAT Act applied in extending the time by which he had to apply to the LAT. Vice Chair Kershaw granted the reconsideration and allowed the claimant’s application to proceed. She held the Tribunal made an error in law by: failing to consider that the claimant continuously demonstrated his intention to dispute entitlement to denied benefits; including the time delay caused by the backlog at FSCO; concluding that there was prejudice to the insurer by the delay, since the claimant had applied for mediation at FSCO within the designated time frame; and concluding that the claimant had not spoken to a LAT representative by telephone and was advised that the 90 day post-mediation extension applied to LAT applications.

N.F. v. North Blenheim Mutual Insurance Company (16-002606)

The claimant sought reconsideration of the Tribunal’s decision that he was barred from seeking entitlement to certain benefits due to the limitation period. In particular, he argued that section 7 of the LAT Act applied in extending the time by which he had to apply to the LAT. Vice Chair Kershaw granted the reconsideration and allowed the claimant’s application to proceed. She held the Tribunal made an error in law by: failing to consider that the claimant continuously demonstrated his intention to dispute entitlement to denied benefits; including the time delay caused by the backlog at FSCO; concluding that there was prejudice to the insurer by the delay, since the claimant had applied for mediation at FSCO within the designated time frame; and concluding that the claimant had not spoken to a LAT representative by telephone and was advised that the 90 day post-mediation extension applied to LAT applications.

S.R. v. Aviva Insurance Company (17-004556)

The claimant sought reconsideration of the Tribunal’s decision that the IRB claim was not barred by the limitation period. The request was made more than 12 months after the Tribunal’s decision. Vice Chair Batty dismissed the request, holding that it was made outside of the required time period, and that the LAT Rules did not favour extending the 21 day deadline.

Traders General Insurance Company v. Rumball (2019 ONSC 1412)

The insurer appealed the Tribunal’s decision that the claimant was not barred by the limitation period from seeking IRBs. The Court held that the appeal to Divisional Court was premature, and that the matter should proceed at the Tribunal regarding the claimant’s entitlement to IRBs. If IRBs were awarded, the insurer could then appeal the final decision of the Tribunal. The case was not a rare or exceptional case where the Court should consider an interim or interlocutory decision.

S.W. v. Pafco Insurance (17-007716)

The claimant sought IRBs. The insurer argued that the limitation period applied. Adjudicator Ferguson held that the LAT application was made more than two years after the accident, but that the exception at section 7 of the LAT Act should apply. The insurer and the claimant had entered into a settlement agreement of IRBs up to the 104 week mark. There was no language in the agreement that the claimant could not seek IRBs after the 104 week mark. The claimant was therefore entitled to apply to the LAT for any dispute regarding post-104 week IRB entitlement.

C.C. v. Economical Insurance Co. (18-003633)

The claimant sought entitlement to IRBs; the insurer argued that the dispute was barred by the limitation period. Adjudicator Ferguson agreed with the insurer and held that the denial of IRBs had been more than two years prior to the LAT application, and that the denial was clear and unequivocal. The claimant’s argument that he interpreted the denial as allowing him to seek IRBs at a later date was not accepted. It was further noted that the denial was to be considered in an objective manner rather than a subjective manner.

S.M. v. Certas Home and Auto Insurance Company

The claimant sought entitlement to medical benefits and removal from the MIG. The insurer argued that one of the treatment plans was barred by the limitation period, and should be dismissed. Adjudicator Norris agreed that one of the treatment plans could not be disputed because it was dispute more than two years after the denial. Turning to the medical evidence, the adjudicator concluded that the claimant suffered soft tissue injuries and that insufficient evidence of a psychological injury was placed before the Tribunal.

P.F. v. Aviva General Insurance Company (formerly RBC Insurance) (17-006863)

The claimant sought entitlement to IRBs. The insurer argued that the limitation period applied. Adjudicator Harmison concluded that the claimant was time-barred from seeking IRBs. She held that the insurer clearly told the claimant that he did not qualify for IRBs in its response to his OCF-1. The insurer also set out the two year time limit and procedure to dispute entitlement. Adjudicator Harmison further held that it was not the date of the OCF-3 submission that triggered the limitation period.

D.M. v. RBC Insurance (17-006781)

The claimant sought entitlement to an ADL assessment and orthopedic assessment. The insurer argued that the claimant was statute-barred from disputing the denials. Adjudicator Norris held that the claimant was not entitled to the ADL assessment, but was entitled to the cost of the orthopedic assessment plus interest. The claimant claimed to have not received denial letters from the insurer. The adjudicator held that the claimant was barred from adjudicating the ADL assessment as the claimant received an unequivocal denial on June 4, 2015, over 2 years before the LAT Application. However, the adjudicator held that there was no clear and unequivocal denial of the orthopedic assessment. The first “denial” letter noted that the insurer would not fund the treatment plan “at this time” and a second letter only referenced the assessment plans by HCAI number, which the adjudicator found made it too difficult for the claimant to determine which plans were in dispute. The claimant incurred the cost of the disputed orthopedic plan after the 10th business day after the plan was proposed and prior to receipt of a clear and unequivocal denial. The insurer argued that the claimant was barred per section 55 from adjudicating entitlement to the orthopedic assessment for failure to attend a section 44 IE. The adjudicator held that the claimant was not barred as the insurer requested an assessment more often than reasonably necessary. The claimant attended a section 44 orthopedic assessment, but the insurer had failed to have the assessor assess the claimant’s entitlement to the disputed orthopedic assessment. Adjudicator Norris held that it was unreasonable to subject the claimant to another in-person assessment so soon after the first assessment simply because the insurer failed to address the issue during the previous IE.

Tomec v. Economical Mutual Insurance Company (2018 ONSC 5664)

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. It concluded that there was no doctrine of discoverability applicable to limitation periods, and that the time elapsed between the accident and the claimant’s deterioration did not affect the limitation analysis. The denials sent at the 104 week mark were clear and unequivocal, and effectively began the limitation clock.