Category: Limitation Period

S.Y. v .Aviva General Insurance Company (16-004549)

The claimant sought entitlement to medical benefits. Some of the treatment plans were not included as original issues in dispute, others were already paid by the insurer. Adjudicator Anna Truong reviewed the medical evidence and determined that two treatment plans were reasonable, while a psychological treatment plan was not. Other treatment plans were denied due to limitations. Interest was awarded on the two reasonable treatment plans, if there was any overdue payment.

V.A. v. Co-operators General Insurance Company (17-001327)

The insurer requested a preliminary motion to determine whether the claimant was barred from seeking income replacement benefits due to the limitation period. Adjudicator Neilsen held that the limitation period did not apply because the claimant was only deemed to have received a denial from the insurer five days after it was mailed her (per section 64 of the SABS).

C.F. v. Aviva Insurance Canada (16-002373)

The claimant sought entitlement to a number of treatment plans. The insurer asserted a MIG position and noted one treatment plan to be limitations barred. Adjudicator Avvy Go noted the burden rested with the claimant and that the evidence tendered did not tie any specific impairment to the MVA. Moreover, the impairments were described as “mild or degenerative” in nature. The MIG was said to govern. The insurer noted that one treatment plan, while approved, lacked information requested under section 33 regarding a collateral benefits payer and as such was not payable until complied with. The claimant sought payment; however, Adjudicator Go noted the timing of the LAT application was beyond the 2 year period. The claimant was limitations barred from seeking payment.

S.T. v. Economical Mutual Insurance Company (16-003034)

The claimant sought entitlement to attendant care and housekeeping benefits. The insurer asserted a limitations position. The claimant’s last Form 1 was submitted just prior to the 104 week anniversary of the MVA. The insurer informed the claimant that a CAT determination would be needed in order for payment beyond the 104 week period. Nearly five years later, the claimant submitted a CAT application and was ultimately found to have suffered a catastrophic impairment. The claimant then sought payment of attendant care and housekeeping from the date of the last Form 1 submitted. The insurer denied payment saying the claimant had not disputed the denial at the date of the initial denial of benefits. The insurer asserted that just because CAT applications do not have a time limit, it does not release the claimant from the limitations period. Although the claimant argued certain boxes were not checked in the OCF-9, Vice Chair Heather Trojek determined that the initial denial of the insurer was clear and unequivocal per the Supreme Court of Canada’s reasons in Smith v Co-operators. While consumer protection was considered, it was held that binding Ontario Court of Appeal decisions and “other objectives” must also be balanced against the principle. As a result of this finding, and given the LAT application was approximately six years after the denial, Vice Chair Trojek found the limitation period applicable.

A.G. v. Certas Home and Auto Insurance Company (17-001475)

The claimant was involved in two separate motor vehicle accidents. He sought a determination that he was entitled to IRBs under the 1996 SABS for the first accident, and under the 2010 SABS for the second accident. The respondent argued that the claimant was prevented from making the LAT applications due to expiry of the two year limitation period. Adjudicator Sewrattan agreed with the respondent. The claimant was properly advised of the respondent’s refusal to provide an IRB, and failed to file an application within two years of the refusal. The Adjudicator declined to exercise his power under section 7 to grant an extension of the limitation period.

Applicant v. TD General Insurance Company (16-001308)

The claimant sought entitlement to IRBs beyond the date of termination. The insurer argued that the claimant failed to apply to the LAT before the limitation period expired. Adjudicator Gottfried rejected the insurer’s submissions and held that the claimant applied to the LAT within 90 days after FSCO Mediator’s Report. However, she denied the claimant any further IRBs. She held that the claimant’s credibility was suspect, and that he had returned to work in some capacity following the accident up until he was injured in a subsequent accident. She also accepted the opinions of the IE assessors that the claimant did not suffer a substantial inability to perform his pre-accident employment.

Applicant v TD General Insurance Company (16-001308)

The claimant sought entitlement to IRBs, interest, and expenses. The Tribunal was also asked to determine whether the applicant was statute-barred from proceeding with his application. Adjudicator Gottfried held that the applicant was not statue-barred, as he brought his application within the 90-day time limit after receipt of a FSCO mediation report. Adjudicator Gottfried further determined that the applicant was not credible, and that he was not substantially unable to perform the essential tasks of his employment; therefore, he was not entitled to IRBs or interests. As neither party addressed the issue, Adjudicator Gottfried declined to make an order regarding expenses.

Applicant (By his Litigation Guardian) v. State Farm Insurance (16-001691)

The insurer denied payment of IRBs following the 104 week period. The claimant brought an application before the LAT; however, the insurer asserted a limitation position. Adjudicator D. Gregory Flude reviewed the chronology of events and noted the claimant’s steadily declined in condition and eventual need for a court appointed litigation guardian. Nevertheless, no explanation was provided for the critical period when the limitations period was set to expire. Accordingly, since there is no ambiguity in the provisions, no extension can be granted. The claimant was deemed barred from proceeding with the claims in dispute for failing to comply with the limitations period.

D.S. v. Allstate Insurance Company of Canada (17-000224)

The claimant sought entitlement to income replacement benefits and three treatment plans. The insurer advanced a limitations defence. Vice Chair Flude noted there was no evidence presented to refute the validity of the insurer’s denials. The notices were deemed compliant with the requirements of Smith v Co-Operators and the claimant was considered outside of the limitations period. The application for arbitration was dismissed.

Applicant v. Co-operators General Insurance Company (16-001976)

The claimant applied for FSCO mediation on January 21, 2016 and disputed a denial of IRBs dated February 26, 2014. The FSCO Mediation was scheduled for May 6, 2016 and was not successful. The claimant subsequently applied to the LAT on August 11, 2016 (97 days after the report of mediator). The insurer raised a preliminary issue asserting the claim was time-barred. The Tribunal agreed and dismissed the claim. On reconsideration, Executive Chair Lamoureux affirmed the applicability of the limitations provisions. The notice letters of the insurer were considered compliant and the insurer was not estopped from relying on the denial letter when it requested a subsequent IE.