Category: Limitation Period

The claimant applied to the LAT disputing entitlement to IRBs. The insurer brought a preliminary motion arguing that the claimant was barred from disputing entitlement due to the two-year limitation period, as the application was made six years after the accident. Adjudicator McGee disagreed and found that the claimant could proceed with his dispute. Adjudicator McGee reviewed the case law submitted by both parties and noted that the question of whether the discoverability principle applied to IRBs was unsettled. In this case, the claimant returned to work after the accident and worked for a number of years. The insurer terminated the claimant’s IRB within the 7-day waiting period because of his return to work. Then, several years later, the claimant was unable to work and renewed his claim for IRBs. The insurer argued that the initial denial letter started the limitation period clock. Adjudicator McGee disagreed finding that it would be unreasonable and unfair to expect insured persons to make premature claims based on the possibility of not working in the future. Adjudicator McGee found that it would be an absurd result to expect that where an insured continues to work and mitigate losses that they should also dispute a denial of an IRB premised on their return to work. Adjudicator McGee found that even if she was wrong about the limitation period and discoverability, she would use her discretion afforded by s. 7 of the Licence Appeal Tribunal Act to extend the limitation period.

The claimant applied to the LAT disputing her entitlement to NEBs. The insurer raised a preliminary motion arguing that the claimant’s dispute was barred by the limitation period, as it was commenced two years after a valid denial. Adjudicator Flude agreed with the insurer and dismissed the claim. The insurer denied the claimant’s NEBs on two occasions: first after receipt of an unsupportive OCF-3 and second in response to counsel’s request to pay the claimant NEBs. In the second denial, the insurer wrote: “Please provide our office with the Disability Certificate (OCF-3) supporting the Non-earner benefit for further consideration”. Adjudicator Flude held that both letters constituted a valid denial and that the second denial did not “muddy the waters.” Adjudicator Flude relied on supportive case law to determine that the second denial was no more than the insurer keeping an open mind as the original OCF-3 did not support NEBs. Moreover, Adjudicator Flude dismissed the claimant’s argument that the failure to check off the “not eligible/stoppage of benefit” box created ambiguity. Adjudicator Flude also noted that the claimant was represented by counsel during this time. Adjudicator Flude found that he would not exercise his discretion to extend the limitation period per s. 7, noting that the delay of five years after the insurer’s denial was a major consideration.

The insurer argued that the claimant was precluded from proceeding to a hearing on the basis that the claimant’s dispute was statute barred pursuant to s. 55 of the Schedule. Adjudicator Manigat concluded that the claimant’s application for IRBs could proceed and that it was not statute barred. A denial of a benefit by an insurer must be delivered to an insured person in accordance with s. 64 of the Schedule. This section requires denial notices to be in writing, and permits delivery by various means, including regular mail, registered mail and by fax, to an insured person’s legal representative. It is only once an insurer has delivered a denial notice in accordance with s. 64 that the two-year limitation period set out in s. 56 of the Schedule begins to run. In this case, the insurer knew that the claimant was represented by counsel, but only delivered a stoppage letter to the insured in 2015. A copy was of the stoppage was not delivered claimant’s counsel by the insurer until 2019. The limitation period therefore did not begin until 2019.

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.