Category: Limitation Period

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.

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

The Tribunal initially held that the claimant had failed to apply to the LAT within two years. The claimant’s application occurred during the transition between FSCO and the LAT. Executive Chair Lamoureux held that it was an error for the Tribunal not to consider whether the limitation period should be extended. She noted that section 7 of the Licence Appeal Tribunal Act granted the Tribunal the power to extend any limitation period under any other Act. She remitted the matter to an adjudicator to determine whether a extension should be granted. The Executive Chair looked to earlier LAT case law and wrote that the factors to consider in granting an extension are: (1) the existence of a bona fide intention to appeal within the appeal period; (2) the length of the delay; (3) prejudice to the other party; and (4) the merits of the appeal. The four factors are not strict factors that each must be met. Rather, they are a guide to assist in determining the justice of each case.

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

The Tribunal initially held that the claimant had failed to apply to the LAT within two years. The claimant’s application occurred during the transition between FSCO and the LAT. Executive Chair Lamoureux held that it was an error for the Tribunal not to consider whether the limitation period should be extended. She noted that section 7 of the Licence Appeal Tribunal Act granted the Tribunal the power to extend any limitation period under any other Act. She remitted the matter to an adjudicator to determine whether a extension should be granted. The Executive Chair looked to earlier LAT case law and wrote that the factors to consider in granting an extension are: (1) the existence of a bona fide intention to appeal within the appeal period; (2) the length of the delay; (3) prejudice to the other party; and (4) the merits of the appeal. The four factors are not strict factors that each must be met. Rather, they are a guide to assist in determining the justice of each case.