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.
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