Category: Limitation Period

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.

F.S. v. Aviva Insurance Company (17-002313)

The claimant sought entitlement to various medical benefits. Adjudicator Sewrattan dismissed all of the claims, holding that the claimant had not demonstrated that the proposed treatment was reasonable and necessary. He also noted that the claimant had refused to provide her collateral benefits entitlement information and that he was unable to determine if any of the benefits would have been payable by the insurer. Finally, the adjudicator ruled that one proposed assessment was barred by the two-year limitation period.

R.A. v. Intact Insurance Company (16-003508)

The claimant sought entitlement to attendant care benefits. The insurer asserted a limitations defense. Adjudicator Therese Reilly reviewed the denial letter relied upon by the insurer and determined that the letter was not clear and unequivocal to trigger the limitations clock. The letter of the insurer was a notice of examination which did not properly provide sufficient notice, and the subsequent denial was, in fact, a suspension of benefits, not a denial. As a result, the claimant was permitted to pursue a claim for attendant care benefits.

S.K. v. Allstate Insurance Company of Canada (16-004212)

The claimant sought entitlement to accident benefits. The insurer raised a limitations objection and relied on the letter holding the claimant in section 33 non-compliance as the triggering document. Adjudicator Chloe Lester determined that a refusal to pay a benefit from a section 33 notice letter can trigger a limitation objection. A distinction was made between a letter requesting information and a letter denying payment because of failing to provide information – the latter being able to trigger a limitation period. The claimant did not provide a reasonable explanation for not providing the requested information and it was therefore determined that the claims were barred due to the limitations provision.

I.A. v. Unifund Claims Inc (17-000785)

The claimant sought entitlement to a number of treatment plans. The insurer asserted a MIG position and also raised a limitation defense to one of the treatment plans. Adjudicator Billeh Hamud reviewed the denial letter of the insurer and found it to be clear and unequivocal. However, Adjudicator Hamud also noted that the claimant established a pre-existing injury that prevented recovery within the MIG; namely chronic pain from a previous MVA. Accordingly, the non-limitation barred treatment plans were found payable.

G.P. v. Aviva Insurance Company of Canada (16-000726)

The insurer appealed the Tribunal decision that a 2006 denial of income replacement benefits was not valid. Executive Chair Lamoureux agreed with the insurer and held that the Tribunal’s decision was a substantial error in law. She wrote that the denial had clearly and unequivocally communicated to the claimant that her entitlement to further income replacement benefits had been denied, and provided the claimant with the dispute process. Further, Executive Chair Lamoureux held that the claimant’s re-application for income replacement benefits in 2015 did not create a second triggering event for the limitation period. The claim for income replacement benefits was therefore barred.

G.P. v. Aviva Insurance Company of Canada (16-000726)

The insurer appealed the Tribunal decision that a 2006 denial of income replacement benefits was not valid. Executive Chair Lamoureux agreed with the insurer and held that the Tribunal’s decision was a substantial error in law. She wrote that the denial had clearly and unequivocally communicated to the claimant that her entitlement to further income replacement benefits had been denied, and provided the claimant with the dispute process. Further, Executive Chair Lamoureux held that the claimant’s re-application for income replacement benefits in 2015 did not create a second triggering event for the limitation period. The claim for income replacement benefits was therefore barred.

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