Category: Limitation Period

Belanger v. Intact Insurance Company (19-013755)

The insurer requested reconsideration of the Tribunal’s earlier decision which held that the claimant was not statute barred pursuant to s. 56 of the Schedule. In the initial decision, the Tribunal found that the delivery of the initial IRB denial letter dated March 26, 2015, despite being an adequate stoppage letter, was not done in accordance with s. 64 of the Schedule as the claimant subsequently retained counsel on June 20, 2015. The initial denial letter was not delivered to counsel until February 15, 2019. The claimant submitted his application on November 27, 2019. As such, the Tribunal initially determined that the application for IRBs fell within the effective limitation period of February 14, 2021. On reconsideration, Adjudicator Logan found that the Tribunal made an error. Adjudicator Logan held that s. 64 of the Schedule does not include a requirement to re-deliver a notice to counsel after they’ve been retained, and that the limitation period applied

Ladouceur v. Intact Insurance Company (2022 ONSC 5206)

The claimant sought judicial review of the Tribunal’s decision that the limitation period barred the claim for NEBs, and the Tribunal’s decision not to extend the limitation period under section 7 of the LAT Act. The Court dismissed the matter, holding that judicial review was only warranted in rare circumstances. The claimant chose not to appeal the decision under the Insurance Act, which provides for a statutory appeal on points of law. In essence, the claimant was requesting that the Court reweigh the medical evidence regarding the claimant’s mental capacity to form an intention to dispute NEBs. The Court was not persuaded that the Tribunal acted in an unfair or prejudicial manner.

Tamayo v. Travelers Insurance (20-014625)

The claimant disputed entitlement to IRBs and 10 treatment plans via a LAT Application filed on December 9, 2020 and a hearing was arranged to commence in November of 2022. The insurer filed a motion and raised a limitation defence under s. 56, arguing that the claimant failed to challenge the denial of IRBs within the two year limitation period. The claimant admitted that the Application was filed late, but requested that the LAT use s. 7 of the LAT Act to extend the time period. IRBs were denied by letter dated May 25, 2018, however the deemed arrival of the letter did not occur until June 1, 2018, which the insurer did not contest. As such, the two-year limitation mark would be June 1, 2020. Adjudicator Mazerolle applied s. 2 of O. Reg. 73/20 (the COVID regulation tolling limitation periods), meaning that the deadline to file a LAT Application was deemed to be December 1, 2020 with the extension period applied. The claimant had filed their application on December 9, 2020, eight days after the extended limitation period had lapsed. Adjudicator Mazerolle used s. 7 of the LAT Act to allow the late filing of the Application, noting that a delay of eight days was not excessive, that a November 12, 2020 letter requesting the AB file toward filing a LAT Application was an intent to appeal the IRB denial, and that there appeared to some merit to the claimant’s case, including a letter noting approval for CPP disability benefits in late 2020. While Adjudicator Mazerolle did admit that the insurer would be prejudiced from the missed limitation period, a delay of eight days would not be significant enough prejudice to not extend the limitation period.

Landa v. The Dominion of Canada General Insurance Company (19-011699)

This is a reconsideration decision. In the initial decision the LAT barred the claimant from proceeding with claims for benefits because she applied to the LAT outside of the limitation period. The LAT further determined that it lacked discretion to extend the limitation period under s. 7 of the LAT Act. The reconsideration hearing proceeded because the state of the law changed after the LAT hearing decision, when the Divisional Court determined that the LAT does have jurisdiction to extend the limitation period under s. 7 of the LAT Act. On reconsideration, Vice-Chair McGee found that the claimant had not established grounds for an extension of the limitation period. In finding that the claimant did not establish a bona fide intention to appeal, Vice-Chair McGee rejected the claimant’s argument that she was delayed in filing the LAT application due to ineffective representation by counsel and be causing she was engaging in settlement negotiations with the insurer. Vice-Chair McGee found that delays in filing the LAT application between 6 months and 10 years were significant and prejudicial to the insurer. The reconsideration was dismissed.

Yatar v. TD Meloche Monnex

The claimant appealed the Divisional Court’s dismissal of her judicial review application, in which the Divisional Court held that judicial review of a LAT decision should only be granted in exceptional circumstances. The Court of Appeal upheld the decision dismissing the judicial review, but modified the grounds on which judicial review could be sought. The Court of Appeal held that judicial review of the LAT should only be heard in the rare case where the adequate alternative remedies of reconsideration, together with a limited right of appeal, are insufficient to address the particular factual circumstances of a given case. The Divisional Court retains the discretion to hear and determine judicial review applications. Where a party commences both an appeal and a judicial review of a LAT decision, the matters ought to be joined and heard simultaneously. In terms of the claimant’s judicial review, the Court of Appeal held that the Divisional Court correctly dismissed it because the LAT’s decision that the claimant disputed her entitlement to IRBs outside of the limitation period was reasonable.

Bagla v. TD Ins. Meloche Monnex (20-004159)

A request for reconsideration of a preliminary issue decision was filed by the claimant. The preliminary issue decision found the claimant was statute barred for failure to appeal the denial of attendant care benefits in the two year limitation period. In this case, the claimant was involved in two accidents: one on March 3, 2014 and the other on May 25, 2015. He sought ACBs. In regard to the 2014 accident, the insurer denied ACBs by letters dated January 12 and April 17 , 2015. The claimant filed his application on January 17, 2020. In regard to the 2015 accident, the insurer denied ACBs by letter dated April 1, 2016 and the claimant filed his application on June 28, 2019. A case conference was held on November 25, 2020 for both accident claims. The claimant was represented by counsel. An order set down a preliminary issue hearing for March 8, 2021 to determine whether the claimant was statute barred from disputing his ACBs for both accidents. A Notice of Written Hearing was sent to the parties January 25, 2021. Written submissions for the preliminary issue hearing were due February 19, 2021. The insurer filed its submissions and evidence on February 4, 2021. One day prior to the deadline for written submissions, the claimant’s counsel notified the insurer and LAT that she was no longer representing the claimant. The claimant did not file his submissions on the due date. The LAT was unsuccessful in contacting the claimant and a decision was released April 29, 2021. The claimant reportedly did not know about his former counsel’s lack of submissions until several months later. The claimant retained new counsel who immediately filed a motion for an extension to file reconsideration submissions on August 13, 2021. The motion was heard and a decision was released December 6, 2021. The claimant’s request for an extension was granted and the claimant filed this reconsideration request on January 6, 2022. The claimant submitted that he was deprived of his right to participate in a hearing that was significant to his well-being and the evidence regarding the circumstances of his ACBs claim denial was not before the Tribunal and would likely have affected the result. He submitted that the doctrine of discoverability applied to his claims and it was an error to statute bar his claims. The claimant relied on the Tomec decision amongst others. He submitted alternatively that the Tribunal exercise its discretion under s.7 of the LAT Act to allow his claim to proceed to a substantive hearing. The insurer argued that the claimant’s assertion that he was denied procedural fairness was baseless and was rectified by allowing him to make submissions on reconsideration. The insurer also submitted that the claimant did not show how the previously unavailable evidence would have changed the result of the decision. In addition, no rationale was provided to overturn the decision using section 7 of the LAT Act. Vice Chair Boyce reasoned that procedural fairness included participatory rights with an opportunity for those affected by the decision to put forward their views and evidence to be considered. He indicated that the claimant should not suffer for the mistake of his counsel when the Tribunal could rectify the mistake. Vice Chair Boyce found that the claimant was unable to participate in the first instance through no mistake of his own. The claimant did not become aware of the Tribunal’s decision until three months after its release. Vice Chair Boyce granted the claimant’s request for reconsideration under Rule 18.2(a). Vice Chair Boyce accepted that he had made his initial decision solely on the evidence of the insurer and reliance on one party’s evidence affected the result. The claimant was seeking a catastrophic impairment designation at the substantive hearing. Vice Chair Boyce indicated that the doctrine of discoverability in Tomec applied in this case, and that if the Tribunal were to uphold the original decision, the claimant would be unable to claim post-104 ACBs. The preliminary decision of April 29, 2021 was set aside and the claimant was allowed to proceed with his ACBs claim at the substantive hearing.

Perrigard v. Primmum Ins. Co. (19-010651)

This is a reconsideration decision. At the hearing, Vice-Chair Boyce found that the claimant was barred under section 56 of the SABS from proceeding with his application for failure to commence the application within two years of receipt of valid denials, and for his failure to attend a properly scheduled IE assessments. The claimant submitted that the Tribunal had erred by finding that an IRB denial letter met the requirements of section 37(4), erred by finding that a Notice of Examination met the requirements of section 44(5)(a), erred in not considering the claimant re-applying for IRBs, and erred in determining that the LAT application was submitted late. In the hearing decision, Vice-Chair Boyce found that the claimant was not required to conjure up or fabricate a medical reason for terminating IRBs where there was a valid “other” reason, such as a return to employment, which was the basis for the denial in this case. Based on the Divisional Court’s recent decision in Varriano v. Allstate, Vice-Chair Boyce found that he had erred by finding that a medical reason (or indication that the IRB was not being denied for a medical reason) was not required in these circumstances. Based on the Divisional Court decision, Vice-Chair Boyce found that the denial letter was not valid and did not start the limitation period clock. Vice-Chair Boyce granted the claimant’s request for reconsideration and ordered that the claimant could proceed with his application to the LAT.

Gefon v. Aviva General Insurance Company, (20-010471)

The claimant submitted a treatment plan for chiropractic treatment on June 6, 2017. The insurer denied the claimant’s treatments, as they deemed her to fall within the MIG. The insurer sent a subsequent letter to the claimant advising her of her required attendance at an insurer examination. The claimant submitted an application to the LAT on September 10, 2020. The insurer raised the preliminary issue that the claimant was statue-barred from proceeding with her claim. The claimant argued that the subsequent letter requesting the claimant attend the insurer examinations did not provide a clear and unequivocal denial of the treatment plan. Vice Chair Lake agreed with the insurer, and held that the claimant was statue-barred from pursuing her claim for the June 6, 2017 treatment plan as she applied to the LAT outside the two year limitation period prescribed by s. 56 of the Schedule. Vice Chair Lake found that the insurer’s initial letter was a clear and unequivocal denial of the treatment plan, used language that was directed to an unsophisticated person, and also outlined the dispute resolution process with two warnings of the two-year limitation period in capitalized and bolded font.

Tagoe v. The Personal Insurance Company (21-001366)

A preliminary issue hearing was held to determine whether the claimant was barred from proceeding with his claim for IRBs due to failure to commence his application within two years after the insurer’s refusal to pay the amount claimed. Adjudicator Corapi concluded that the claimant was statute-barred from proceeding with his application for IRBs and declined to extend the limitation period under s.7 of the LAT Act. The claimant had taken one day off following the accident and then worked full-time with certain limitations for about 16 months. An initial OCF-3 was submitted May 17, 2016 that indicated the claimant was able to return to work on modified hours/ duties and was advised not to return to work but did so due to financial reasons. The insurer notified the claimant he was not eligible for IRBs and pointed out the claimant had continued to work. A second OCF-3 was submitted on December 5, 2019 that stated the claimant was unable to return to his pre-accident work and to any modified hours or duties. The insurer responded that its position remained the same and the applicant was statute-barred from disputing the IRB denial. The claimant argued that the insurer had not communicated in the two year period that his IRBs were statute-barred. The claimant submitted that the insurer’s denial letter did not meet the “clear and unequivocal test” because it had not clearly stated whether the claimant’s IRBs were being denied and stated that the claimant both qualified and did not qualify for IRBs. Adjudicator Corapi wrote it was important to note the relevant requirements under section 5(1)1 and 6(2)b of the SABS that defined the level of impairment that the claimant had to suffer for IRB entitlement and the requirements changed over the time of the accident. In regard to s.7 of the LAT Act, there are four strict factors that the Tribunal weighs to determine the justice of the case for an extension to be granted. Adjudicator Corapi determined the insurer’s denial was valid and the claimant had provided no compelling reason to grant a limitation extension. Although the insurer issued a proper denial, Adjudicator Corapi found that the claimant’s action of submitting a second OCF-3 almost 3 years later was an indication the claimant believed his application for IRBs was still an option. However, the factor outlined in Manuel stated there must be a bona fide intention to appeal, which the claimant did, but almost 8.5 months after the deadline. Adjudicator Corapi found the claimant had not provided compelling evidence of a bona fide intention to appeal. There was an extraordinary lapse of time in the claimant’s appeal given the facts of the case. The adjudicator also found that the insurer would be prejudiced as it procedurally met the requirements for its denial and this would invite a second opportunity for the claimant to claim an IRB. An extension would undermine the certainty of the limitation period that insurers rely upon. The claimant would also bear the burden of defending an additional claim after several years without medical assessments to address it. The merit of the claimant’s claim was limited due to his return to work following the date of loss. Adjudicator Corapi also found the merits of the claimant’s case for post-104 IRBs was not strong as her would have to establish eligibility for benefits within the first 104 weeks after the accident to qualify under s.5 of the SABS.

Sharma v. Allstate Insurance (2022 ONSC 803)

The claimant appealed the Tribunal’s decision that she was barred from disputing NEBs due to the limitation period. She missed the limitation period by five days. The Court allowed the appeal, and ordered the Tribunal to rehear the preliminary limitation defence with a new adjudicator. The Court held that the Tribunal erred in three ways. First, the Tribunal improperly considered the length of the delay by considering the 735 days since the denial of NEBs rather than just the five day delay. Second, the Tribunal improperly analyzed the prejudice to the insurer by considering the prejudice that may have arisen during the entire 735 days since the denial of NEBs rather than the prejudice arising over the five day delay. Third, the Tribunal erred by excluding in reconsideration a new email from the claimant’s counsel to the insurer sent on the date the limitation period expired asking if the claimant had been paid NEBs.