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Oct 15, 2018

Ont. Div. Ct. dismisses application for judicial review of LAT decision upholding limitation period

Author Bevin Shores

In Tomec v Economical Mutual Insurance Company, 2018 ONSC 5664, a three judge panel of the Divisional Court dismissed the appellant (claimant)’s application for judicial review of the Licence Appeal Tribunal’s decision finding that the applicant’s claims for housekeeping and attendant care benefits were statute-barred.

The accident in question occurred on September 12, 2008. The claimant was paid attendant care and housekeeping benefits until 104 weeks after the accident, after which the benefits were terminated on the basis that the benefits were not payable for more than 104 weeks unless the claimant had sustained a catastrophic impairment.

The claimant submitted an Application for Determination of Catastrophic Impairment on May 13, 2015, and the claimant was accepted as catastrophically impaired on November 4, 2015. The insurer denied ongoing attendant care and housekeeping benefits on the basis that these benefits had been denied at the two-year mark, and the claimant had not mediated this denial within two years of that date. The claimant disputed the denial at the LAT.

The limitation issue proceeded in the LAT as a preliminary issue hearing before the Vice Chair, who “found that the applicant is barred from proceeding with her application for attendant care benefits and housekeeping benefits despite having a catastrophic impairment because she did not dispute the stoppage of those benefits within two years of the respondent’s denial” (para 19).

On appeal, three issues were raised:

a)      Whether the common law doctrine of discoverability applies to the relevant limitation periods;

b)      Whether there was, in fact, a clear and unequivocal denial of a benefit in the circumstances;

c)      Whether there was a denial of natural justice in refusing to hear the evidence of Dr. Becker.

With respect to the first issue, the Court’s discussion of the standard of review is of note. While the Court ultimately agreed that the decision below withstood either the correctness or the reasonableness standard of review, the Court discussed whether the correctness standard might apply: “it can be strongly contended that the issue here is a general question of law that goes beyond the expertise of the Tribunal.  The question of whether the discoverability principle applies must be uniformly answered for all Vice-Chairs deciding cases under the Insurance Act” (para 55).

Continuing on at paragraph 56:

“[56]           In the final analysis, in view of the result on the merits, it is unnecessary to come to any definitive conclusion as to the standard of review.  As stated by Goudge J.A. in Turner, supra, at para. 7, “[t]here is no need for us to deal with the proper standard of review to be applied in this case because, even on a correctness standard, there is no error.”

As to the argument that discoverability applied, the Court noted: “Notwithstanding these policy considerations, there nevertheless is a narrow category of limitation periods that can be considered to be “hard” limitation periods that are triggered by a fixed and known event.  In such a case, a claim can be barred even before the claimant is aware that he or she has a claim” (para 58).

Elaborating on the policy considerations, the Court explained at paragraph 66:

“In the case of a hard limitation period, there are policy considerations on both sides.  In the case of the Insurance Act, and claims under the SABS, an insurer has no control over when an insured applies for a designation of catastrophic impairment.  An insurer would not continually assess a claimant if ongoing expenses are not being submitted.  Presumably, the legislature thought it important to provide for a reasonable period, after which an insurer’s obligation would be discharged, whether or not meritorious claims may be discovered later.”

With respect to the second issue, the Court first considered the standard of review, and found that a reasonableness standard applies: “For the most part, it involves a factual determination, or at its highest is a question of mixed fact and law.  A high degree of deference is appropriate” (para 49).

Turning to the merits of the issue, the Court stated succinctly: “In this case, the Vice-Chair took into account the analysis of the Supreme Court of Canada in Smith v. Co-operators General Insurance Co., supra, and analyzed the evidence.  Attendant care benefits and housekeeping benefits had been paid for almost two years.  The applicant was clearly told that they would be discontinued, and she was advised about her rights of appeal.  The Vice-Chair’s determination that there was a refusal to pay the benefit was reasonable” (para 50).

With respect to the third issue, the Court stated at paragraph 44:

“I am not persuaded that there was any denial of natural justice in the refusal to hear the evidence of Dr. Becker.  There had been virtually no advance notice that he would be called, and it had been understood that the hearing was to hear oral submissions only.  The Vice-Chair was not convinced that Dr. Becker’s evidence would assist in resolving the legal issue.  This was a decision that she was perfectly entitled to make.  There is no merit to this argument.”

Tomec v Economical 2018onsc5664

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Bevan Shores

Bevin Shores

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P: (905) 577-4050 ext 595 (905) 577-4050 ext 595

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