Category: Limitation Period

The preliminary issue in this matter was whether the claimant was statute barred from proceeding with her claim pursuant to section 56 of the Schedule. Adjudicator Makhamra found that the claimant was not statute barred from proceeding with her claim for IRBs. The insurer initially terminated the claimant’s entitlement to the benefit based on multidisciplinary assessments pursuant to section 44 of the Schedule. Adjudicator Makhamra considered the four Manuel factors and concluded that the claimant had a clear bona fide intention to appeal the denial of the IRBs. This was clear from the Agreement that was entered into between the parties for the express purpose of allowing the claimant to refile an application. Further, no prejudice was found as the insurer was obtaining s. 44 CAT reports during the period of time between the deadline and the refiling of the application and was undisturbed by the fact that the claimant missed the Agreement deadline. Therefore, the justice of the case warranted an extension of the two-year limitation period.

The insurer argued that the claim for NEBs was barred by the limitation period. The claimant argued that a June 2017 denial was not valid because she had not submitted an OCF-3 before the denial. However, the denial did follow receive the OCF-1 and a telephone conversation in which the claimant and the insurer discussed her injuries. Vice Chair Boyce found the denial valid. He noted that an OCF-3 was not required to be submitted for the insurer to validly deny a claim for NEBs, referring to the Court of Appeal’s decisions in Sagan v. Dominion and Sietzema v. Economical. He also wrote that the insurer’s denial was not a pre-emptive denial in the vein of Tomec v. Economical. The LAT application was made two years and ten months after the denial, and was therefore barred by the limitation period. Vice Chair Boyce declined to extend the limitation period under section 7 of the LAT Act. First, the ten month delay was significant. Second, the revocation of the claimant’s former counsel’s licence was not relevant as it occurred after the expiry of the limitation period and did not assist the claimant in arguing that she had a bona fide intention to appeal NEBs within the limitation period. Finally, there would be prejudice to the insurer because it would not be able to schedule contemporaneous section 44 examinations. While Vice Chair Boyce acknowledged that a dispute over a catastrophic impairment designation in the LAT application suggested that the NEB claim may have merit, that single factor did not outweigh the other three.

The preliminary issue in this matter was whether the claimant was barred from proceeding with a claim for IRBs because he failed to commence his application within two years after the insurer’s refusal to pay the amount claimed. Adjudicator Farlam concluded that the application was statute barred and dismissed the application. Section 7 of the Licence Appeal Tribunal Act allows the Tribunal to extend a limitation period under certain circumstances. Adjudicator Farlam found that the insurer’s denial of the claim for IRBs was clear and unequivocal, it gave reasons for the denial, and provided a description of the dispute resolution process and time limitation. The claimant did not request an extension of the limitation period and as a result did not meet the onus to establish reasonable grounds for an extension under s. 7 of LAT Act.

A preliminary issue hearing was held to address whether the claimant was barred from proceeding with her claim for ACBs and NEBs due to failure to commence an application within the two year limitation period. Vice-Chair Boyce determined that the application for ACBs was not properly before the Tribunal but that an exercise of discretion under s. 7 of the LAT Act was appropriate to allow the claimant to proceed with her claim for NEBs. Vice-Chair Boyce found that although the claimant commenced her claim six business days outside of the limitation period, the facts supported an exercise of discretion under s. 7 of the LAT Act , mainly because the insurer would not be prejudiced by a short delay. Regarding ACBs, the Schedule is clear that a Form-1 is required for an application for ACBs. The claimant’s failure to submit the Form 1 meant that ACBs had not been properly applied for and could not be in dispute.

A preliminary issue hearing was held to address whether the claimant was barred from proceeding with her claim for IRBs due to failure to commence an application within the two year limitation period. The claimant submitted that the insurer was estopped from arguing that the limitation period and the legislation ought to be construed in her favour because the Schedule is consumer protection law. Adjudicator Farlam found that pursuant to section 56, the claim was statute-barred because her LAT application was made three years after the limitation period expired. The Schedule, even as consumer protection legislation, does not relieve the claimant of her obligation to comply with the limitation period. The claimant sought, in the alternative, relief from the expiry of the limitation period under section 7 of the Schedule. Adjudicator Farlam found that after consideration of all four of the relevant factors, that the case did not warrant the extension of the limitation period as the claimant failed to show a good faith intention to initiate a claim within the limitation period.