Category: Limitation Period

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.

Applicant v. Allstate Canada Group (16-002892)

In this preliminary motion, the insurer sought an order that the claimant was barred by the limitation period from seeking NEBs. The insurer also argued that the period for NEB entitlement did not commence until a completed disability certificate was received almost two years after the accident. Adjudicator Purdy first held that the claimant was not barred from seeking NEBs by the limitation period. She noted that section 64(8) of the SABS deems a mailed document to be received five days later, meaning the LAT application was filed in a timely manner. Second, Adjudicator Purdy relied upon FSCO case law and held that the insurer had sufficient information within a month of the accident to know that the claimant was applying for NEBs.

N.T. v. Unica Insurance Inc. (16-000920)

The insurer requested a preliminary issue to address whether the claim for attendant care benefits was barred by the limitation period. The claimant argued that his Form 1 did not qualify as an application for attendant care benefits, and that the insurer therefore could not have denied attendant care benefits. Adjudicator John held that the submission of the Form 1 was an application and triggered a positive obligation on the part of the insurer to pay benefits, even without the submission of expense forms. She also held that the claim for attendant care benefits had been denied more than two years prior, and was therefore time-barred.

A.A. v. State Farm Mutual Automobile Insurance Company (16-000449)

A preliminary hearing was held to decide whether the claim for NEBs was barred due to the limitation period. Adjudicator Sewrattan held that the insurer’s denial was clear and unequivocal, and that the claimant was therefore barred from seeking NEBs.