|
Insurance - Auto - Limitations. Patton v. Aviva Insurance Co. of Canada
In Patton v. Aviva Insurance Co. of Canada (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a SABS joint appeal-JR, here where the LAT "dismissed the application as outside the two-year limitation period and refused to exercise its discretion to extend the limitation period":[30] The core issue on this application addressed below as Issue 1 is whether the May 3, 2021 denial letter complied with the principles set out in Smith v. Co-operators and triggered the start of the two-year limitation period. ....
....
Issue 1: Did the May 3, 2021 denial letter comply with the principles set out in Smith v. Co- operators and trigger the start of the two-year limitation period?
[37] Mr. Patton argues that the LAT misapplied Smith v. Co-operators and Traders v. Rumball with respect to the two-year limitation period.
[38] Section 45 of the SABS provides that an application to dispute a denial of a benefit shall be commenced within two years of the insurer’s refusal to pay. In Smith v. Co-operators, the Supreme Court required that to commence the two-year limitation period, a refusal of IRBs must contain a clear and unequivocal notice of denial, which outlines the dispute resolution process and relevant time limits and provides reasons for the denial, directed towards an unsophisticated person: Smith v. Co-operators, at paras. 20, 14.
[39] Mr. Patton further asserts that the LAT erred in law when it refused to apply 17-004556 v. Aviva.
[40] In 17-004556 v. Aviva, the letter relied upon by the insurer as starting the two-year limitation period included the following:As per Section 37(2)(e) of the Statutory Accident Benefits Schedule (SABS), we are therefore determining your IRB effective February 25, 2015 as you have resumed your pre-accident employment duties. Should you be off work again due to the injuries sustained as a result of the subject motor vehicle accident, we would require an updated Disability Certificate (OCF-3) to determine your eligibility. Per Section 36(2)(3) of the SABS an applicant for a specified benefit shall submit a complete Disability Certificate (OCF-3) that indicates you meet the disability test. There is no entitlement to benefits for any period before the updated Disability Certificate is submitted.
Should you wish to dispute this decision please refer to Mr. Patton’s Rights to Dispute on the following pages. Your first step is to apply for mediation. Should you require information regarding your rights to dispute or the appropriate forms please do not hesitate to contact the writer. Please ensure you initiate your dispute within TWO YEARS. [41] The LAT concluded in 17-004556 v. Aviva that this was not a “clear and unequivocal” termination of the income replacement benefit Mr. Patton had received. The letter left open the proposition that with a further completed Disability Certificate, a further entitlement could be recognized.
[42] 17-004556 v. Aviva was confirmed on appeal to the Divisional Court in Traders v. Rumball. The court found that the decision with respect to the application of the two-year limitation period was not a question of law and therefore was not subject to appeal. It also found that the LAT’s finding that the letter was ambiguous was an entirely plausible interpretation of the letter.
[43] Subsequent to the decisions in this case, the Divisional Court in Traders v Rumball further found the finding in 17-0004556 v. Aviva to be correct:[38] …Traders’ “decision” is described in the first paragraph of its Letter under the heading Reasons for Decision. The “decision” has two parts. It includes not only a termination of IRBs but also the representation that Ms. Rumball may be eligible for IRBs if she is off work again and submits an updated OCF-3. There is nothing in the Letter which states that IRBs will never be paid beyond February 25, 2015 even if Ms. Rumball is off work again. As such, the first paragraph of the Letter only provides a qualified termination of IRB benefits. The second paragraph of the Letter goes on to describe the steps that Ms. Rumball needs to take if she wishes to dispute the “decision”. Given that the decision found in the first paragraph of the Letter left open the possibility of her future entitlement to IRBs, it is not surprising that Ms. Rumball did not dispute this decision shortly after its release.
[39] The Tribunal’s finding that the Letter was ambiguous was not only a reasonable and “entirely plausible” interpretation (for the reasons set out in para. 25 of the Preliminary Issue Decision) – it was the correct one. [44] Aviva argues that this case can be distinguished from Traders v. Rumball on the facts.
[45] I find the letters in Traders v. Rumball and the instant case are comparable except for one important distinction. The letter in Traders v. Rumball contained a Right to Dispute which advised of the necessity of filing an application to dispute a decision if it reduced or denied benefits and that if an application is not made within two years from the decision the right to entitlement is lost. It did not contain a further warning that was in the Dispute Notice in Mr. Patton’s case. That further warning stated: “While you are encouraged to work with your insurance company to settle your complaint, be warned that it does not extend the two year time limit to make your claim.”
[46] That same warning was repeated to Mr. Patton in this case in each of the subsequent letters from Aviva.
[47] As noted by the Court of Appeal in Bonilla v Preszler, 2016 ONCA 759, 134 O.R. (3d) 478, at paras. 8-12, the limitation is triggered by a single event, which is the refusal by an insurer. The operation of the limitation period under the SABS is clear and straightforward. There is no rolling limitation period.
[48] I find that the LAT did not err in finding that the May 3, 2021 letter met the clear and unambiguous denial requirement under Smith v. Co-operators and started the two year limitation period. . Patton v. Aviva Insurance Co. of Canada [discoverability]
In Patton v. Aviva Insurance Co. of Canada (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a SABS joint appeal-JR, here where the LAT "dismissed the application as outside the two-year limitation period and refused to exercise its discretion to extend the limitation period".
Here the court considers 'discoverability' regarding a limitation period:Issue 8: Did the LAT err by failing to find that Mr. Patton was entitled to post-104 week IRBs?
[74] Mr. Patton argues that the LAT erred by stating that he provided no explanation for why he did not raise the issue of discoverability at the preliminary issues hearing. He submits that he did not discover his claim for post-104 week IRBs until after the preliminary issue hearing when he resigned from his employment. Relying on Tomec and P.V. and Economical Insurance, 2020 CanLII 12744 (ON LAT), he submits that the two-year limitation period does not bar a claim that was not discoverable during that time.
[75] On reconsideration the LAT found:[60] The applicant also now raises new submissions that since he is now off work altogether, he would be eligible for post-104 IRB and that in accordance with the decision of Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 (CanLII) (Tomec) he has just now discovered his post-104 IRB claim and, therefore, he cannot be statute-barred. Even if I agreed that Tomec applies in this situation, the applicant provided no explanation on why discoverability and Tomec could not have been raised in his initial hearing submissions. As noted at paragraph 31 of the decision, the period in dispute for IRB [in the application] was from November 25, 2021 to date and ongoing, which encompasses both the pre-104 and post- 104 period.
[61] Yet, in his initial hearing submissions, the applicant did not argue that he was not claiming post-104 IRB because he had returned to work. Instead, he maintained that he was not statute barred with respect to his IRB claim because the respondent did not provide a clear and unequivocal denial. As IRB was in dispute for both the pre-104 and post-104 period, in my opinion, the applicant could have raised discoverability and Tomec arguments at first instance, but he chose not to do so. I am also not persuaded by the applicant’s position that he discovered he had a post-104 IRB claim when he submitted the resignation letter because he was already claiming IRB for the post-104 period in his application to the Tribunal.
[62] To summarize, the applicant has not tendered any new evidence which satisfies the three part test under Rule 18.2(c). [76] In Tomec, the Court confirmed that discoverability generally provides that a limitation period will not begin to run until the material facts on which the cause of action is based are known to the plaintiff or ought to have been known through the exercise of reasonable diligence. Tomec dealt with a dispute for attendant care benefits by a claimant who had been designated catastrophically impaired – she could not assert a claim for attendant care benefits until and unless she was found catastrophically impaired. As such, the court found the denial of attendant care benefits before the catastrophic issue had crystalized caused the limitation not to start to run due to a lack of discoverability.
[77] The facts in Tomec are distinguishable from the facts in Mr. Patton’s case. Mr. Patton was off work for several months after the accident and was able to and did assert a claim for IRBs to the insurer. He then returned to work for over three years and commenced this dispute while he was still working. In his LAT application dated November 24, 2023, he disputed IRBs at the rate of $400 per week for the time period of November 25, 2021 to date and ongoing which included both the pre-104 and post-104 period.
[78] In his factum at para. 22, Mr. Patton submits that at the time of the submissions in the preliminary issues hearing, he was working at Mark’s Work Warehouse with considerable difficulty and cites a number of different sources in support of this.
[79] The LAT dismissed the argument regarding discoverability on reconsideration. The adjudicator was not persuaded that Mr. Patton had discovered he had a post-104 IRB claim when he submitted the resignation letter because he was already claiming IRBs for the post-104 period in his application.
[80] In P.V. and Economical Insurance, the insurer pre-emptively denied IRBs because the claimant was working full time when he submitted his OCF-1 and OCF-3. The claimant’s condition deteriorated, and he went off work years later. In other words, his claim for IRBs had not yet been discovered when the insurer pre-emptively denied it.
[81] The facts in P.V. and Economical Insurance are also distinguishable from the facts in this case. Mr. Patton submitted his OCF-1, OCF-2, and OCF-10 on February 3, 2021 when he was off work following the accident. On March 22, 2021, he submitted an OCF-3, when he was still off work. The insurer denied his claim for IRBs on May 3, 2021. Mr. Patton returned to employment on May 7, 2021.
[82] I find that the Court of Appeal’s reasons in Haldenby, at para. 30, apply to Mr. Patton:[T]here is no provision in the Act or the SABS which allows a claimant to reapply for further benefits after an insured person's benefits have been terminated by the insurer. The only remedy for the insured person is to appeal the termination of benefits within the two-year period. [83] Mr. Patton has not met the onus of establishing that the LAT’s dismissal of his argument regarding discoverability was an error of law or unreasonable. Mr. Patton is statute barred from proceeding with his claim for post-104 week IRBs. . Paesano v. Coseco Insurance Co.
In Paesano v. Coseco Insurance Co. (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a LAT SABS JR.
Here the court considered a SABS limitation issue:[38] Section 5(1)1(i) of the Schedule provides that an insurer shall pay income replacement benefits to an insured person who sustains an impairment as a result of an accident if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.
[39] Section 6 of the Schedule provides:(1) Subject to subsection (2), an income replacement benefit is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of his or her employment or self-employment.
(2) The insurer is not required to pay an income replacement benefit,
(a) for the first week of the disability; or
(b) after the first 104 weeks of disability,
unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training, or experience. [40] The Applicant submits that during the 104-week period, she must prove: (1) that she was employed at the time of the motor vehicle accident; and (2) that she suffered a substantial inability to perform the essential tasks of that employment during the 104-week period. However, she is not required to apply for those benefits by submitting her disability certificate; she can still qualify and apply for post-104-week benefits even if she has not yet received benefits, but she must prove that she suffers a complete inability to engage in any employment. I disagree.
[41] I find that the LAT's decision was correct, in finding that SABS is clear that an insured must apply for benefits and establish that she suffered a substantial inability within the first 104-week period to qualify for post-104 weeks IRBs. Section 6(2)(b) simply sets out the more stringent test for an insured's ongoing entitlement to the benefit. This issue of statutory interpretation was a question of law that should have been raised on appeal, but I find that even if the Applicant had followed the correct procedure, the result would have been the same: the LAT’s decision was correct.
[42] Further, the LAT was reasonable and correct in finding that Tomec, and the principle of discoverability, are not applicable to the present case: see Decision, at para. 35.
[43] With respect to the Applicant's position that the Respondent failed to make it clear to her that she must apply for IRB benefits within 104 weeks and therefore they are estopped from arguing that she brought her application late, I also find the Applicant cannot succeed on this ground.
[44] This issue was raised before and addressed by the Tribunal: see Decision, at para. 36. The Tribunal found that the Respondent provided the Applicant with sufficient information to explain what benefits were available to her and the time limits for claiming the same. The Tribunal found that the notice was contained in correspondence sent to the Applicant on September 4, 2018, and October 1, 2018. The Tribunal also found that the failure to outline deadlines to apply for a benefit does not prevent the Respondent from relying on the requirements of the Schedule, in determining if the Applicant qualifies for a benefit. . The Personal Insurance Company v. Tagoe
In The Personal Insurance Company v. Tagoe (Ont CA, 2024) the Ontario Court of Appeal dismissed a LAT appeal, here considering the application of limitation discovery to the SABS regime:[18] An insurer’s refusal to pay benefits must be “clear and unequivocal” to start the s. 56 limitation period, see e.g., Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111, 118 O.R. (3d) 713, at para. 13, leave to appeal refused, [2014] S.C.C.A. No. 172. Mr. Tagoe’s position was that the May 20, 2016 EOB was not clear and unequivocal, and thus did not start the limitations clock.
....
[24] Citing this court’s decision in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882, 148 O.R. (3d) 438, leave to appeal refused, [2020] S.C.C.A. No. 7, Ramsay J. explained:In Tomec, the Court of Appeal held that a limitation period, without discoverability, created an absurd result because it effectively barred the appellant in that case from claiming benefits before the appellant was eligible for those benefits. The Court of Appeal underscored the purpose of the SABS, to maximize benefits for victims of motor vehicle accidents, and concluded that the limitation period was subject to discoverability.
The respondent insurer [TPIC] argues that the unequivocal denial of May 2016 began the limitation period with respect to the subsequent claim for income replacement benefits even though the appellant had gone back to work the day after the accident. The respondent insurer relies on part of the initial request to the insurer, where the appellant claimed that he had a substantial inability to work. The respondent insurer submits that the appellant having so claimed, the denial of income replacement benefits in May 2016 created the dispute that had to be addressed in two years.
I disagree with the respondent’s position. The appellant did not qualify for income replacement in May 2016 and did not apply for it. I cannot distinguish this case from Tomec. The appellant was not required to apply for income replacement benefits before he was eligible for them. The adjudicator erred in law by failing to apply the doctrine of discoverability. ....
(1) This court’s decision in Tomec
[27] Tomec concerned a claim by an insured person who was injured when she was struck by a motor vehicle. She had received attendant care and housekeeping SABS benefits, but her statutory entitlement to these benefits ended after 104 weeks. Five years later her medical condition worsened, and she became “catastrophically impaired” within the meaning of s. 3.1 of the SABS. This made her eligible once again to receive SABS benefits. However, the LAT held that s. 281.1(1) of the Insurance Act (now repealed) and what was then s. 51(1) of the SABS – the predecessor to the current limitation period provision in s. 56 of the SABS – created a “hard” two-year limitation period that precluded her from claiming these benefits from her insurer. The Divisional Court agreed, and dismissed her appeal.
[28] Relying on the Supreme Court of Canada’s intervening decision in Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295, this court reached a different conclusion. Hourigan J.A. found that in this context a hard two-year limitation period would create a “Kafkaesque regulatory regime” in which people who asserted their statutory right to receive benefits after an accident would be penalized if they then became catastrophically impaired more than two years later: Tomec, at paras. 47-48. He explained, at para. 55:There is a single reasonable interpretation of s. 281.1(1) of the Insurance Act and s. 51(1) of the SABS. The limitation period contained in those sections is subject to the rule of discoverability because it is directly tied to the cause of action that an insured can assert when denied benefits. A hard limitation period is contrary to the purposes of the SABS and the Supreme Court’s guidance in Pioneer. In addition, a hard limitation period in these circumstances would lead to absurd results and is not consistent with the policy rationales that underlie limitation periods. ....
[39] As a starting point, we accept TPIC’s concession that the discoverability rule applies to IRB claims. Claims for SABS benefits, whether during the 104 weeks after an accident or later, are now both subject to the two-year limitation period in s. 56 of the SABS. This provision is essentially similar to the former s. 51(1), which this court held in Tomec did not establish a hard limitation period. . Zuchelkowski v. Zenith Insurance Co.
In Zuchelkowski v. Zenith Insurance Co. (Div Court, 2024) the Divisional Court considered a LAT appeal where a mother sought to claim "for the recognition of her entitlement to statutory accident benefits" on her son's motorcycle accident.
Here the court considers a limitation denial by the insurer, canvassing related IA SABS provisions:[6] The appellant submits that the Tribunal committed an error of law by dismissing her claim without reference to s. 32(10) of the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (SABs) promulgated under the Insurance Act, R.S.O. 1990, c. I.8.
[7] The appellant submits that under s. 32(10) of the SABs, if her claim was late, without reasonable explanation, the insurer’s sole remedy was that it became entitled to more time to respond to her claim. The Tribunal erred therefore in holding that the application could be dismissed under s. 55 of the SABs.
[8] For the reason that follow, I disagree and dismiss the appeal.
....
Analysis
[11] The relevant provisions of the SABs provide:Notice to insurer and application for benefits
32. (1) A person who intends to apply for one or more benefits described in this Regulation shall notify the insurer of his or her intention no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day.
(10) Despite any shorter time limit in this Regulation, if an applicant fails without a reasonable explanation to notify an insurer under subsection (1) within the time required under that subsection, the insurer may delay determining if the applicant is entitled to a benefit and may delay paying the benefit until the later of,
(a) 45 days after the day the insurer receives the completed and signed application; or
(b) 10 business days after the day the applicant complies with any request made by the insurer under subsection 33 (1) or (2).
Result if fail to comply with time limits
34. A person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.
Restriction on proceedings
55. (1) Subject to subsection (2), an insured person shall not apply to the Licence Appeal Tribunal under subsection 280 (2) of the Act if any of the following circumstances exist:
1. The insured person has not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted an application for the benefit within the times prescribed by this Regulation. [12] Counsel for the Tribunal takes no position on the merits of this appeal. He advises however that there are more than 70 reported decisions of the Tribunal in which a claimant’s failure to provide reasonable explanation for delay in giving notice to the insurer has led to dismissal of the claim under s. 55 (1)1.
Section 32 (10) is not an exclusive remedy
[19] Section 32 (10) gives an insurer extra time to respond to a late application. The appellant submits that s. 32 (10) therefore takes a breach of the time limit in s. 32 (1) out of s. 55 (1)1. Rather, when faced with a late claim, the insurer can make requests for missing information under s. 32 (6) and s. 33 of the regulation and then it gets more time to make a decision under s. 32 (10).
[20] There are several responses to this submission. First and foremost, subsection 55 (1)1 does not say that. By its terms, it applies whenever a claimant, “has not submitted an application for the benefit within the times prescribed by this Regulation.” If it meant, “ any time other than the time limit under s. 32 (1),” it would have said so.
[21] Second, the insurer makes the point that the facts of this case show why an extension of time to respond would not make sense as an exclusive remedy. In this case, the appellant has yet to attend an examination under oath as required under s. 33 (2) of the SABs. Under s. 32 (10), the insurer still has ten business days after a claimant complies with a requirement under s. 33 (2) to allow the insurer to conclude its investigation and make a final decision. If the insured is right, her claim continues forever unless or until she complies and the insurer can never bring the claim to an end no matter how unreasonably late it was brought.
[22] The appellant submits that s. 34 preserves late claims for which there is a reasonable explanation. It does not bar claims. That is true. It says nothing at all about late claims for which there are no reasonable explanations. That is the role of s. 55 (1)1 if a claim is not saved by s. 34.
[23] The appellant submits that it is the insurer who delayed and led her to continue providing information without ever raising the insured’s own delay. But in its initial “Explanation of Benefits” in response to the appellant’s Application for Benefits, the insurer made clear it was adjusting without prejudice. It rejected every claim filed while awaiting information. It cannot be faulted for continuing to adjust claims while information remained outstanding from the appellant. There is no indication that the appellant relied to her detriment on anything said or done by the insurer that could possibly set up an estoppel (assuming the doctrine of estoppel applies before the Tribunal).
[24] The SABs process is one aimed at consumer protection. The regulation is to be given a fair, large, and liberal interpretation bearing in mind its distinctly consumer-oriented purpose. But the chosen manner of carrying out the regulatory purpose must be gleaned from the words used in the relevant sections and in the regulation as a whole. There is simply no basis in the wording of any of the relevant sections to find that a claimant who, without reasonable justification, delays giving notice to the insurer for two years and then does not provide required information is entitled to continue her claim despite the explicit wording of s. 55 (1)1 to the contrary.
[25] Finally, the appellant falls back on the final words in s. 32 (1) that notice is to be given “as soon as practicable.” This, she submits, provides an element of judgment or discretion in the decision maker and thereby shows that a claim cannot be dismissed just for being late. This submission runs squarely into the finding of fact, referred to at the outset, that there was no reasonable explanation for the appellant to give notice as late as she did in this case. At para. 24 of the decision, the tribunal held that the appellant did not comply with s. 32 and was not saved by s. 34. That left her claim to be dismissed under s. 55. That is a cohesive interpretation of the interplay among all the relevant sections. . Landa v. The Dominion of Canada General Insurance Company
In Landa v. The Dominion of Canada General Insurance Company (Div Court, 2024) the Divisional Court dismissed a LAT-SABS appeal, which focussed on the Insurance Act [Reg. 34/10: SABS - Sept 1, 2010] s.56 two-year limitation, and - separately - the LATA s.7 ['Extension of time'] limitation provision as it applied to SABS matters. This case was one of the first Yatar joint appeal/JR cases, which allow attempts to include review of 'fact' and 'mixed fact and law' issues within otherwise 'questions of law'-limited appeals:[9] The Vice Chair considered whether Dominion issued valid denials to trigger the limitation period. The limitation period begins when an insurer gives a clear and unequivocal denial of a benefit that is accompanied by notice of the two-year period for commencing the dispute resolution process. ...
[10] Finally, the Vice Chair considered whether to extend timelines to extend the limitation period to allow Ms. Landa’s claim to proceed. The Vice Chair relied on the LAT decision of SS v. Certas Home and Auto Insurance Company, 2016 CanLII 153125 (ON LAT) in holding that the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (“LATA”), does not allow for an extension of time for a proceeding under the SABS. She therefore determined that she had no jurisdiction to grant an extension of time.
....
[42] Under s. 56 of the 2010 Schedule and s. 51 of the 1996 Schedule, LAT proceedings under the Insurance Act must be commenced within two years of the insurer’s denial of benefits. Section 7 of the LATA provides that the LAT may extend the time for commencing a proceeding where it “is satisfied that there are reasonable grounds for applying for the extension and for granting relief.”
[43] As noted above, at the time that the LAT rendered its October 9, 2020 Preliminary Issue Decision and its December 23, 2020 Reconsideration Decision, the LAT’s case law was divergent on whether s. 7 of the LATA allowed the LAT to extend the limitation period in the Schedule. However, this Court subsequently held in Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997 (Div. Ct.) at para. 61 that the LAT has that authority. On its own initiative, the LAT reconsidered the Preliminary Issue Decision a second time.
[44] To determine whether to grant an extension of time under s. 7 of the LATA, the LAT generally considers four factors which it must weigh in order to determine whether the justice of the case requires granting the extension. The four factors are set out by the Divisional Court in Manuel v. Registrar, 2012 ONSC 1492 (Div. Ct.) at paras. 13-17 and 40 (“Manuel”):1. The existence of a bona fide intention to appeal within the appeal period;
2. The length of the delay;
3. Prejudice to the other party; and,
4. The merits of the appeal. [45] The LAT noted that Manuel directs a holistic analysis of these factors, no single factor is determinative, an extension should not be granted unless the “justice of the case” requires it, and the onus is on Ms. Landa to establish that there are reasonable grounds for granting an extension.
....
[48] The decision not to extend the time is a discretionary one to which this court owes considerable deference. Ms. Landa has not demonstrated an error in principle. There was documentary evidence to support the facts as found, and “it is not the role of the court in this appeal to ‘second-guess’ the weight to be given to the evidence nor to interfere with the inferences drawn from the facts as found.” (Fratarcangeli, at para. 85). Ms. Landa has not established that the reconsideration decision was unreasonable. . Tagoe v. The Personal Insurance Company
In Tagoe v. The Personal Insurance Company (Div Court, 2023) the Divisional Court considered the limitation issue of 'discoverability' although here in a SABS context where the insurer denied benefits "before the appellant was eligible for those benefits", perhaps in an effort to commence running of the limitation period while the insured is unsuspecting of it's effect:Discoverability
[15] On this issue, the adjudicator said this in her reconsideration decision:[24] The [appellant] submits that the Tribunal made an error of law by allegedly failing to apply the Court of Appeal’s decision in Tomec and address the argument relating to discoverability and prematurity of the denial in its decision, such that the [appellant] was denied procedural fairness pursuant to Rule 18.2(a).
[25] I disagree. Discoverability and prematurity of a denial were addressed in the decision. For instance, paragraph 34 outlines the applicant’s arguments with respect to pre-emptive denial, and paragraph 35 goes on to outline my position on premature benefit claims:…there is a considerable body of case law that deals with premature benefit claims that are denied pre-emptively by an insurer. I find that a benefit can be denied by an insurer pre-emptively and that the use of the phrase “you do not qualify” would be found to be acceptable under the Schedule. [16] There was no other discussion of Tomec. The appellant submits that the adjudicator erred in law in failing to follow Tomec, which addressed a like situation. In Tomec, the Court of Appeal held that a limitation period, without discoverability, created an absurd result because it effectively barred the appellant in that case from claiming benefits before the appellant was eligible for those benefits. The Court of Appeal underscored the purpose of the SABS, to maximize benefits for victims of motor vehicle accidents, and concluded that the limitation period was subject to discoverability.
[17] The respondent insurer argues that the unequivocal denial of May 2016 began the limitation period with respect to the subsequent claim for income replacement benefits even though the appellant had gone back to work the day after the accident. The respondent insurer relies on part of the initial request to the insurer, where the appellant claimed that he had a substantial inability to work. The respondent insurer submits that the appellant having so claimed, the denial of income replacement benefits in May 2016 created the dispute that had to be addressed in two years.
[18] I disagree with the respondent’s position. The appellant did not qualify for income replacement in May 2016 and did not apply for it. I cannot distinguish this case from Tomec. The appellant was not required to apply for income replacement benefits before he was eligible for them. The adjudicator erred in law by failing to apply the doctrine of discoverability.
|
