Category: Limitation Period

Kechichian v. Primmum Insurance Company (19-008194)

The claimant sought entitlement to NEBs. The insurer argued that the limitation period barred the dispute. Adjudicator Lake held that the limitation period applied and that she did not have jurisdiction to extend the limitation period under the LAT Act. She also held that she did not have jurisdiction to apply the doctrine of equitable estoppel. The insurer had denied entitlement to NEBs in July 2016. The claimant did apply to the LAT within two years of the denial, but withdrew the LAT application while undergoing catastrophic impairment assessments. The insurer’s counsel at the time indicated that the insurer would not advance a limitation defence with regard to the issues in that first LAT dispute. Despite accepting that such agreement was made, Adjudicator Lake held that she did not have authority to apply equitable estoppel to prevent the insurer from relying on a limitations defence when the claimant reapplied to the LAT in 2019. Finally, Adjudicator Lake held that she did not have authority to extend the limitation period under the LAT Act.

Williams v. Aviva General Insurance Company (19-007941)

The claimant applied to the LAT disputing entitlement to IRBs. The insurer denied entitlement in June 2017. The LAT application was made in July 2019. Adjudicator Lake accepted that the LAT dispute was commenced outside the limitation period by a few weeks, and thus barred by the limitation period. She also held that she did not have jurisdiction to extend the limitation period under the LAT Act.

Polat v. TD Home and Auto Insurance Company (20-002912)

The insurer raised two preliminary issues in advance of the hearing: (1) to bar the claimant from proceeding with her claim for IRBs due to failure to commence her application withing the two year limitation period; and (2) to dismiss the application for procedural delay and awarding costs. Vice Chair Boyce found the applicant was statute barred from proceeding with her IRB claim because she failed to appeal the insurer’s denial within the two year limitation period. Vice Chair Boyce noted it was unclear what the claimant’s position was on the limitation period or what prompted her to reapply to the Tribunal nearly 11 months after the expiration of the limitation period after withdrawing her initial application in May 2018. The insurer did not agree to waive the limitation period when the claimant withdrew her initial application. The insurer advised that at no point had the claimant proposed an extension or tolling agreement that would allow her to proceed with her claim on consent. Vice Chair Boyce had no basis to dispute those assertions. Vice Chair Boyce ordered the insurer was entitled to costs in the amount of $250 based on the claimant’s failure to participate in Case Conferences, failure to follow LAT orders, and failure to provide written submissions.

Bagla v. TD Insurance Meloche Monnex (20-004159)

The preliminary issue in this matter was to determine whether the claimant was limitation-barred from disputing entitlement to ACBs in relation to two accidents due to his failure to dispute the denials within two years. Adjudicator Boyce concluded that the claimant was limitation-barred on both ACB claims. Pursuant to s. 56 of the Schedule, an application under subsection 280(a) of the Insurance Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed. The insurer’s submissions addressed s. 7 of the LAT Act, which provides the Tribunal with discretion to extend the limitation period based on four factors: a bona fide intention to appeal within the limitation period; the length of the delay; prejudice to the other party; and the merits of the appeal. It was the claimant’s burden to demonstrate that there were reasonable grounds for extending the missed limitation period based on these four factors and the claimant failed to present a case to demonstrate that the limitation period should be extended.

Bhavsar v. Aviva Insurance Company of Canada (19-006756)

The preliminary issue in this matter was whether the claimant was statute barred from disputing the attendant care benefit and treatment plans for physiotherapy due to the expiry of the limitation period in s. 56 of the Schedule. Adjudicator Johal concluded that the claimant was entitled to dispute these denials at the Tribunal. Adjudicator Johal referred to the case of Turner v. State Farm Mutual Automobile Insurance Company, where it was held that the insurer’s denial must be clear and unequivocal. Further, in Sietzema v. Economical Mutual Insurance Company, the Court of Appeal found that an insurer’s denial was valid only if it gave the claimant a clear notice of their rights to mediation, followed by arbitration, litigation or a neutral evaluation if the claimant wished to dispute the refusal, and a clear notice of the two-year limitation period. In this case, the insurer’s initial denial of the attendant care benefit was not a clear and unequivocal denial as it stated that the insurer agreed to fund attendant care needs pending a further determination. A second letter was sent at a later date which would allow for the Tribunal application to remain within the limitation period. With respect to the treatment plans for physiotherapy, the Adjudicator concluded that the claimant was statute-barred, but that the limitation period should be extended under s. 7 of the LAT Act because there was some merit to the claimant’s claim and the Adjudicator was not persuaded that there would be any prejudice to the insurer.

Yatar v. TD Insurance Meloche Monnex (2021 ONSC 2507)

The claimant appealed and sought judicial review of the Tribunal’s decision that her claims were barred by the limitation period. The Court dismissed both the appeal and the judicial review. The Court explained that statutory appeals are limited to strict questions of law, and the claimant had failed to identify an error of law on which to appeal; rather, she was appealing on a question of mixed fact and law, which were not subject to the statutory appeal. Judicial review, on the other hand, was a discretionary remedy that was only to be granted in exceptional circumstances. The Court noted that the Legislature had intended to restrict matters on which the Tribunal could be reviewed, and acknowledged that the Tribunal’s reconsideration process weighed in favour of a more limited right to judicial review. Again, the nature of the alleged error – being one of mixed fact and law – meant that the Court was to be highly deferential, and only intervene if the error is so serious as to constitute an error of law.

Siklis v. Aviva Insurance Canada (19-007597)

The claimant applied to the LAT to dispute several treatment plans. At the case conference, the insurer raised two preliminary issues: (1) whether the claimant was statute barred from pursuing his claim for medical benefits due to the two year limitation; and (2) if not, whether the claimant was precluded from proceeding with his claim for assistive devices due to non-attendance at insurer examinations. Adjudicator Lake found the claimant was statute barred from proceeding with his claim for entitlement to the medical benefits sought because his application was filed outside the two year limitation. The insurer had partially denied two of the treatment plans and denied the treatment plan for the assistive devices. The claimant did not dispute the sufficiency of the insurer’s denials. The claimant submitted that his application was filed on June 18, 2019 but provided no evidence to support this submission. The insurer submitted that the application was filed on June 24, 2019 with evidence by way of correspondence. The claimant requested the Tribunal exercise s.7 of the LAT Act to extend the limitation period. The claimant cited the Tribunal’s reconsideration decisions that Adjudicator Lake noted were currently under appeal to the Divisional Court. Adjudicator Lake indicated there was no direction in those cases yet on the issue from a court on the applicability of s.7 of the LAT Act and whether it conferred jurisdiction to the Tribunal to extend the limitation period. Adjudicator Lake further noted that she preferred the determination in earlier cases that found s.7 of the LAT Act did not apply to the limitation period in the SABS because the SABS is a regulation rather than an Act.

R.L. v. Intact Insurance Company (18-005036)

The claimant sought reconsideration of a decision in which she was statute barred from disputing her claim for NEBs. The claimant argued that the original decision erred in law because: (1) it found that a capacity assessment should take place or be investigated within the appeal limitation period; (2) it found the total delay was a factor in extending the limitation period; (3) it failed to appreciate the evidence in regard to the issues of capacity, bona fide intention to appeal and the length of the delay; (4) it failed to analyze and make a ruling or give adequate reasons on the issue of prejudice, or alternatively it erred in law by concluding there was prejudice despite the insurer not making any decisions on the issue in its submissions; and (5) it failed to consider the merits of the underlying appeal. Vice Chair Johal dismissed the request for reconsideration. Vice Chair Johal noted the claimant did not specifically plead Rule 18.2 (d) in her reconsideration submissions but tried to introduce new evidence. The new evidence included additional GP clinical notes and records and a handwritten note indicating the claimant had difficulty sleeping, eating and concentrating. The claimant also submitted GP notes that indicated the claimant’s mother called the claimant’s GP who gave her the number of a hospital because she was unable to help the claimant. The claimant did not provide submissions about whether the new evidence could not have been obtained previously and that it would likely have affected the decision in the original hearing. The insurer argued the new information was improperly submitted and was available at the time of the initial hearing. Vice Chair Johal found the claimant could not introduce new evidence for the first time as part of her reconsideration because the requirement of Rule 18.2(2) was not met. Vice Chair Johal further found even if he were to allow the evidence, he did not find it would have changed the result of the original decision. In regard to whether the original decision disposed of the appeal, Vice Chair Johal agreed with the claimant’s argument and the Tribunal decisions of M.Y. and L.D. where it was held that Rule 18.1 was more expansive and encompassed the decisions that finally disposed of a single issue in dispute rather than the entire appeal application. The original decision was not an interlocutory order. It was a decision that finally disposed of the claimant’s request for NEBs. In regard to the original decision concerning the application of s.7 of the LAT Act for extension of the limitation period, the insurer argued the original decision conducted a detailed analysis of the clinical notes and records for the time period in dispute and discussed whether the issue of mental capacity had been raised or established by medical records during the limitation period. The fact that a mental capacity assessment had not been recommended or completed despite numerous medical appointments was only one factor in the original decision. Vice Chair Johal agreed with the insurer and found he would not have reached a different result of the original decision and no error had been made. The claimant submitted that she was unable to appeal due to her mental incapacity. It was found the original decision weighed the evidence and on a balance of probabilities found there was no bona fide intention to appeal within the appeal period and the evidence did not establish she was unable to appreciate risks and consequences. Vice Chair Johal found no error in the law or fact in the original decision. In terms of length of delay, Vice Chair Johal noted the Tribunal appeal application dated June 1, 2018 did not list NEBs as an issue in dispute. It was not until October 9, 2019 in the amended application that the NEB denial was disputed, which was about 35 months from the expiration of the limitation period. Vice Chair Johal determined 35 months was a significant delay and this factor was not in support of the claimant. There was no error in the result of the original decision. With respect to the merits of the appeal, Vice Chair Johal noted the original decision discussed the merit of the claimant’s appeal. Vice Chair Johal stated in his original appeal that even if he were to agree that the claimant’s case had merit, it would be the only factor that would support the claimant’s request for an extension. The original decision also discussed the justice of the case considering all factors and found there was no bona fide intention to appeal within the normal appeal period, the length of delay of 35 months and prejudice to the insurer and concluded the justice of the case did not warrant extension of the limitation period.

Laszlo v. Economical Mutual Insurance Company (20-001644)

The claimant sought entitlement to benefits and the parties attended a case conference where the insurer raised the preliminary issue of whether the claimant was statute barred from proceeding with her claim for an IRB pursuant to section 56 of the Schedule. Adjudicator Chakravarti determined that the claimant was statute barred and her appeal was dismissed. The claimant argued that there was no proper termination of the IRB due to the insurer’s non-compliance with section 37(5) and 37(6) of the Schedule, and therefore the limitation period was not triggered by the notice of denial on December 1, 2017. The insurer argued that the failure of an insurer to meet the timeline in section 37(6) (i.e. to provide the section 44 assessment reports to the claimant within 10 business days) is a minor error and standing alone it cannot support a finding in favor of the claimant with respect to the limitation issue. Adjudicator Chakravarti found that the late delivery of the section 44 reports did not prejudice the claimant and it was a minor error and not part of ongoing errors by the insurer. Adjudicator Chakravarti also considered the four Manuel factors in determining whether to extend the limitation period (the existence of a bona fide intention to appeal within the appeal period, the length of delay, prejudice to the other parties, and the merits of the appeal). Adjudicator Chakravarti found that the claimant had not persuaded that she had a bona fide intention to appeal within the appeal period and she failed to explain the length of the delay.

Rathakrishnan v. Aviva Insurance Company (19-009539)

The claimant sought entitlement to benefits and the parties attended a case conference where the insurer raised the preliminary issue of whether the claimant was statute barred from proceeding with her claim pursuant to section 56 of the Schedule. Adjudicator Chakravarti found that pursuant to section 56 of the Schedule, the claimant was statute barred from proceeding with her claim for IRBs as she failed to commence her application within the two years after a valid denial from the insurer. The claimant sought relief from the expiry of the limitation period under section 7 of the Schedule. Adjudicator Chakravarti found that after considering all four Manuel factors, the justice of the case did not warrant extending the limitation period.