Category: Limitation Period

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.

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.

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