Category: Limitation Period

Nguyen v. Economical Insurance Company (20-006171)

The self-represented claimant was involved in a motor vehicle accident in 2003. In 2018, FSCO denied the claimant’s claims for caregiver benefits and NEBs and awarded costs against the claimant, which she did not pay. The claimant later submitted claims for a CAT determination, NEBs, ACBs, and housekeeping benefits, which the insurer denied. The claimant then applied to the LAT seeking entitlement to these benefits. The LAT application was filed about 2.5 months after the two-year limitation period. A preliminary issues hearing was held to determine: (1) whether the application should be dismissed as frivolous, vexatious, or commenced in bad faith because it was res judicata and there were outstanding costs awarded against the applicant in favour of the insurer, (2) whether the application for CAT determination should be dismissed because of the claimant’s non-attendance at insurer’s examinations, and (3) whether the application should be dismissed because it was brought beyond the two-year limitation period. Vice-Chair Farlam found: (1) that the claims for caregiver benefits and NEBs were barred due to res judicata, and (2) that the application was statute-barred because it was not commenced within two years of the denial of benefits. Vice-Chair Farlam declined to extend the limitation period pursuant to s. 7 of the LAT Act, finding that the claimant failed to show a bona fide intention to appeal within the limitation period, there was incurable prejudice to the insurer, and there was a lack of evidence indicating the application had merit. Because the application was barred due to the limitation period, Adjudicator Farlam did not consider the issue of non-attendance at IEs. The application was dismissed.

Brule v. Intact Insurance Company (20-001905)

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.

Robertson v. Coseco Insurance Company (20-004779)

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.

Edwards v. Wawanesa Mutual Insurance Company (19-009437)

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.

Haines v. Aviva Insurance Company of Canada (20-003388)

The claimant was involved in an accident in 2016 and found catastrophically impaired in 2020. The insurer denied entitlement to ACBs in 2016, and refused to reconsider entitlement to ACBs after the catastrophic impairment finding. The insurer argued that the claimant’s 2020 LAT application for ACBs was barred by the limitation period. Vice Chair Boyce found that Tomec v. Economical governed the result, and that the claimant was not barred from disputing entitlement to ACBs. The insurer argued that Tomec was distinguishable because in this case, the claimant had received ACBs prior to the termination in 2016. Vice Chair Boyce rejected that fact as a distinguishing factor, stating that once the claimant was found catastrophically impaired, he was entitled to advance his claim for post-104 week ACBs. The insurer could not rely upon the earlier denial to support a limitation period argument. Additionally, Vice Chair Boyce held that he would have applied section 7 of the LAT Act to extend the limitation period if Tomec had not been binding on him.

Fratarcangeli v. North Blenheim Mutual Insurance Company (2021 ONSC 3997)

The Divisional Court considered three LAT decisions addressing section 7 of the LAT Act, to determine whether the Tribunal had the power to extend the two-year limitation period. The Court held that the LAT Act did grant the Tribunal the power to extend the limitation period and upheld two of the decisions in which the adjudicators had granted the extensions. The Court held that the third matter, in which the adjudicator had held that the LAT did not have the power to extend the limitation period, had to be returned to the adjudicator for a determination on whether the extension should be granted.

A.B. v. The Co-Operators Insurance Company (19-004401)

The claimant applied to the LAT seeking entitlement to benefits after being involved in an automobile accident in 2016. The insurer raised two preliminary issues: 1) Was the claimant statue-barred from proceeding with a claim for NEBs for failure to commence the application within the two year limitation period; and 2) Was the claimant entitled to medical benefits after non-compliance with s. 44 of the Schedule for failing to attend an IE assessment? Adjudicator Grant found that the claim was statute barred and the claimant was not entitled to dispute any of the 2017 treatment plans. He rejected the argument that the limitation period did not commence until IEs were received by the claimant, because there had been a denial upon submission of the treatment plans. Adjudicator Grant also found the that claimant was not entitled to NEBs due to non-compliance under s. 44. Adjudicator Grant was also asked to determine whether the claimant was entitled to 13 treatment plans, a special award and interest. In his decision, Adjudicator Grant highlighted that the onus is on the claimant to demonstrate that the disputed treatment plans are reasonable and necessary. In this case the claimant advanced medical evidence that was not consistent with the treatment being disputed. It was determined that the claimant failed to meet his burden, rendering the treatment plans not payable.

Amani v. Certas Home and Auto Ins. (19-013741)

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.

Asher v. Wawanesa Mutual Insurance Company (19-013046)

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.

Weathers v. Toronto Transit Commission Insurance Company Limited (20-006288)

In 2000, when the claimant was seven years old, he injured his knee while on a TTC bus. The claimant’s mother applied for NEBs on his behalf. The OCF-3 submitted by the claimant’s family physician did not support entitlement to NEBs. In 2001, the TTC sent correspondence to the claimant stating that NEBs were not payable until the claimant turned 16 years old, and that he did not meet the NEB test regardless. In 2010, when the claimant was 17 years old, the claimant’s mother requested that the matter be re-opened and that NEBs be paid. The TTC responded reiterating its earlier denial. In 2017, the claimant submitted an Election in support of NEBs. The TTC responded with copies of the earlier correspondence denying NEBs. In 2018, the claimant submitted a new OCF-3 supporting NEBs. The TTC assessed the claimant pursuant to section 36, and denied NEBs again based on the IEs. In 2020, the claimant applied to the LAT disputing NEBs. The TTC argued that the limitation period barred the claim. Vice Chair Boyce agreed with the insurer and held that the LAT dispute was barred. The TTC issued valid denials in 2001, 2010, and 2017. Without deciding which date specifically started the limitation period, the claimant initiated his LAT dispute more than two years of even the 2017 denial. Vice Chair Boyce declined to extend the limitation period using section 7 of the LAT Act. The accident was over 20 years prior; there were three valid denials over two decades; and the claimant took no steps to dispute entitlement in 2010 when he turned 16. Additionally, the TTC would be prejudiced in obtaining medical evidence and determining causation now 20 years after the accident.