The claimant sought entitlement to attendant care and housekeeping benefits. The insurer asserted a limitations position. The claimant’s last Form 1 was submitted just prior to the 104 week anniversary of the MVA. The insurer informed the claimant that a CAT determination would be needed in order for payment beyond the 104 week period. Nearly five years later, the claimant submitted a CAT application and was ultimately found to have suffered a catastrophic impairment. The claimant then sought payment of attendant care and housekeeping from the date of the last Form 1 submitted. The insurer denied payment saying the claimant had not disputed the denial at the date of the initial denial of benefits. The insurer asserted that just because CAT applications do not have a time limit, it does not release the claimant from the limitations period. Although the claimant argued certain boxes were not checked in the OCF-9, Vice Chair Heather Trojek determined that the initial denial of the insurer was clear and unequivocal per the Supreme Court of Canada’s reasons in Smith v Co-operators. While consumer protection was considered, it was held that binding Ontario Court of Appeal decisions and “other objectives” must also be balanced against the principle. As a result of this finding, and given the LAT application was approximately six years after the denial, Vice Chair Trojek found the limitation period applicable.
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