Category: Limitation Period

W.C.C. v. Allstate Canada (17-001363)

The claimant sought entitlement to non-earner benefits, which had been denied by the respondent on May 22, 2013, and entitlement to two treatment plans. Adjudicator Daoud dismissed all the claims, finding that the claimant was limitation barred from disputing the denial of non-earner benefits and that the claimant had not proven that the disputed treatment plans were reasonable and necessary. The claimant argued that the two-year limitation period should be extended or should not apply for a number reasons, which were all rejected by Adjudicator Daoud. Adjudicator Daoud held that (a) an insurer’s denial of a benefit, even if it is legally incorrect, will trigger the two-year limitation clock; (b) the 26-week waiting period for NEBs is not in reference to entitlement but to when NEBs are payable; and (c) a benefit that is prematurely denied by an insurer may still be considered proper and trigger the two-year limitation period.

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

The insurer requested the preliminary hearing to address whether the claimant was limitation barred from pursuing a claim for IRBs because the LAT application was not commenced within two years of the insurer’s denial. Adjudicator Gottfried held that the claimant was not precluded from applying for IRBs. The limitations analysis involved a lengthy review of correspondence between Aviva, the claimant, and the claimant’s lawyer regarding IRB stoppage. The limitation decision rested on which letter from the insurer started the limitation clock. The claimant and his lawyer both denied receiving a letter from Aviva regarding IRB stoppage dated February 11 2015. Aviva claimed that this letter was sent to the claimant by regular mail and copied to the claimant’s lawyer. Adjudicator Gottfried accepted the affidavit evidence of the claimant and his lawyer that it was not received. Adjudicator Gottfried found that the date of discoverability of the denial was August 17, 2015, which is the date of a follow-up letter from Aviva to the claimant’s lawyer regarding IRB payments and stoppage. Aviva argued that even if the claimant’s lawyer had not received a copy of the original stoppage letter in February 2015, a copy of that letter was included in the complete AB file materials provided to the claimant’s lawyer on March 23, 2015. Adjudicator Gottfried’s analysis did not clearly state why this date was not accepted, though the evidence suggested that the claimant’s lawyer did not review the AB file materials.

D.A. v. Aviva Insurance Canada (16-001381)

This is a preliminary issue decision on whether the claimant was statute barred from pursuing a claim for non-earner benefits because the LAT application was filed more than two years after the benefit was denied. This matter involved the transition from FSCO to the LAT. Adjudicator Ferguson found that the LAT application had been filed within 90 days of the FSCO mediator’s report and, accordingly, the claim for non-earner benefits was not statute barred. Of note, Arbitrator Ferguson also commented on the LAT’s discretion to extend limitation periods under section 7 of the Licence Appeal Tribunal Act. Arbitrator Ferguson held that there are four factors for determining whether an extension of a limitation period should be granted: i. the existence of a bona fide intention to appeal within the appeal period;  ii. the length of the delay; iii. prejudice to either party; and iv. the merits of the appeal. Arbitrator Ferguson found that it was not necessary to invoke section 7 in this matter, but he noted that the claim for non-earner benefits met the criteria for granting an extension to the limitation period.

Applicant v. Wawanesa Mutual Insurance Company (16-002633)

The claimant sought removal from the MIG and two medical benefits. The insurer argued that the claim was time barred. Adjudicator Maedel held that the claimant had applied to the LAT within 90 days of receipt of the FSCO Report of Mediator, and was therefore within the limitation period. He concluded that the claimant’s injuries were minor in nature and that the claimant’s evidence did not support removal from the MIG.

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

The insurer argued that the claimant was barred from seeking IRBs due to the limitation period. It had denied IRBs when the claimant returned to work. The denial letter stated that if the claimant was off work again due to injuries, the insurer would require an updated Disability Certificate. Adjudicator Ferguson held that the denial was not clear and unequivocal because it appeared that the claimant remained entitled to IRBs if she had to leave work due to her injuries. The claim for IRBs was allowed to proceed.

Applicant v. Unifund (17-000982)

The claimant sought entitlement to NEBs, removal from the MIG, and further medical benefits. The insurer argued that the claimant was barred from seeking NEBs due to the limitation period. Adjudicator Harmison accepted that the insurer had denied NEBs more than five years prior, and that the denial was clear and unequivocal. In terms of the medical benefits claim, the adjudicator held that the claimant failed to prove that his injuries were outside of the MIG. The adjudicator placed significant weight on the records from the family physician, which showed only one entry referring to the accident, and no reports of psychological injury.

S.T. v. Economical Insurance Company (16-0003034)

The claimant sought reconsideration of the Tribunal’s decision to deny attendant care and housekeeping benefits. The Tribunal had determined that the two year time limit for the claimant to dispute her entitlement had passed. The claimant filed her request for reconsideration outside of the 21 day period stipulated in the LAT Rules. Executive Chair Lamoureux rejected the reconsideration. She held that the claimant failed to provide acceptable reasons to justify the delay in requesting the reconsideration. She further held that the claimant failed to provide any evidence to suggest that the Tribunal erred in finding that the limitation period applied.

D.F. v. Gore Mutual Insurance Company (17-002799)

The claimant filed a LAT application on May 4, 2017, seeking entitlement to NEBs. A written preliminary issue hearing was scheduled to determine whether the claimant was precluded from bringing the application to the LAT, pursuant to s. 56 of the SABS, for failure to dispute the denial of benefits within two years. The insurer initially denied NEBs by Explanation of Benefits on March 13, 2015. The insurer denied NEBs based on the claimant’s non-supportive OCF-3 and on its determination that the claimant’s impairments were within the MIG. On May 6, 2016, the insurer responded to further submissions of the claimant by advising that his entitlement to benefits had not changed since March 13, 2015. The claimant was removed from the MIG in June 2016. At the hearing, the claimant submitted that the March 2015 Explanation of Benefits was a blanket denial of benefits that was insufficient to trigger the two-year limitation period. Adjudicator Watt disagreed and found that the 2015 denial met the requirements of the SABS and case law by clearly giving reasons for the denial of benefits and advising the claimant of the steps required by the claimant to dispute the decision within two years. Adjudicator Watt held that the claimant was statute barred from proceeding with the LAT application as the two-year limitation period had expired. The application was dismissed.

Applicant v. Brant Mutual Insurance Company (17-003105)

The claimant was injured in an accident in 2005. She applied for accident benefits with the insurer. She was assessed for attendant care benefits shortly after submitting the OCF-1. The insurer subsequently denied entitlement to ACBs in an OCF-9 dated April 6, 2005. In 2017, the claimant applied to the LAT for entitlement to ACBs, arguing that the insurer’s denial of ACBs was premature and was therefore invalid. Adjudicator Gosio agreed with the insurer that the claimant was barred from seeking ACBs. He held that the denial was clear and unequivocal, and that such a denial was sufficient to trigger the limitation period. Adjudicator Gosio cited the Court of Appeal’s reasons in Sietzema v. Economical that even if the refusal to pay was premature or included benefits that an insured had yet to apply for, it could be valid if the denial was clear and unequivocal.

O.C. v. State Farm Mutual Automobile Insurance Company (17-004055 and 17-004060)

The claimant was involved in two accidents and sought non-earner benefits for each date of loss. The insurer brought a motion seeking to bar the claimant pursuant to the limitations provision. Adjudicator Christopher Ferguson reviewed the denial letters and concluded that one of the two denials was not clear and unambiguous. While it is permissible to reference previous denials to maintain the initial denial date, this particular denial, when informing the claimant of the limitation period stated the window closed “within two years of receiving this notice” which vitiated the initial denial date. Moreover, because new reasons were provided in follow-up denials, the initial denial date could not practicably apply – since the claimant would have to determine whether or not to appeal given the new denial reasons. The claimant was permitted to proceed with one of the two NEB claims.