Category: Limitation Period

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.

G.A. v. Co-Operators General Insurance Company (16-001976)

The claimant sought entitlement to income replacement benefits. The insurer asserted a limitations defence. Adjudicator Sewrattan noted that the LAT assumed jurisdiction of accident benefits disputes on April 1, 2016. The parties agreed the 90-day grace period beyond a report of mediator is not applicable to LAT disputes. Adjudicator Sewrattan noted the claimant had ample time when counsel was retained to dispute IRBs. Accordingly, the limitations provisions of section 56 governed and the claimant was time-barred from bringing an IRB claim.

T.E. v. Unifund Assurance Company (16-001326)

A preliminary hearing was held to decide whether the claim for IRBs was barred by the limitation period. Adjudicator Sewrattan concluded that the denials by the insurer were clear and unequivocal, and that the claim for IRBs was therefore barred. No costs were awarded.

M.Y. v. Allstate Insurance Company of Canada (16-002740)

The claimant sought entitlement to non-earner benefits. The insurer resisted the claim on two grounds: (i) the claim was limitations barred, and (ii) a claim for income replacement benefits precluded a non-earner benefits claim. Adjudicator Hines noted that the claimant received income replacement benefits which were ultimately stopped in August of 2014 due to her return to work. The claimant argued (and the insurer conceded) that the denial by the insurer was legally incorrect, in that, it indicated the claimant was ineligible for non-earner benefits given she qualified for income replacement benefits. Adjudicator Hines noted that although the denial was legally incorrect, it was still a clear denial of benefits triggering the limitations period. The insurer also argued that pursuant to section 12 of the SABS a claim for non-earner benefits cannot be allowed since a pre-requisite is that one must not qualify for income replacement benefits. Since the claimant failed to provide persuasive evidence on the subject, and the insurer clearly established the claimant qualified for income replacement benefits, the non-earner benefits claim was precluded.

P.C. v. State Farm Insurance Company (16-000588)

The claimant sought entitlement to non-earner benefits. The insurer raised a preliminary issues motion asserting the claimant was outside of the two year limitation period. Vice Chair Gregory Flude reviewed the chronology of the claim and noted a disability certificate was submitted, albeit not endorsing entitlement to non-earner benefits. A FSCO mediation was applied for within the two year limitation period. However, the mediation was cancelled and FSCO ceded jurisdiction to the LAT. On review of the transition period dates, it was held the claimant was within the limitation period and therefore the insurer’s preliminary motion was dismissed.

S.A.R. v. State Farm Mutual Automobile Insurance Company (16-000212)

The claimant sought entitlement to NEBs and various medical benefits. Adjudicator Pay found that the initial denial of NEBs was not vitiated by subsequent correspondence from the insurer denying NEBs. The opposite result was found in relation to two treatment plans. Although the plans were denied four years prior to the LAT application, the insurer issued correspondence two years after the denial that was confusing and informed the claimant she had two years from that date to file a LAT application.

C.S. v. Unifund Assurance Company (16-000087)

The claimant sought entitlement to four treatment plans and removal from the MIG. As a preliminary issue, the insurer argued that two treatment plans were barred by the limitation period. Adjudicator An concluded that one treatment plan was statute barred, but that the claimant had applied to the LAT in a timely fashion for the second treatment plan. In terms of the MIG, Adjudicator An concluded that the claimant had sustained minor injuries in the accident, but had a pre-existing condition (severe degenerative disc disease) which would prevent recovery under the $3,500 cap. No evidence was submitted regarding the treatment plans; Adjudicator An therefore did not award them.

M.R. v. Aviva Insurance Company of Canada (16-000216)

The claimant was involved in an MVA in December of 2013. An OCF-1 was submitted in February of 2014. Aviva sent OCF-9s in February, March, April, and May 2014, informing the Applicant that the MIG governed her injuries and as such she did not have coverage for attendant care benefits. The Applicant brought an application for arbitration in May of 2016 seeking attendant care benefits. Adjudicator Richards held that the limitation period did not begin to run until an application for ACBs had been made, and further, that the insurer’s denials were not clear and unequivocal.