Div. Ct. Appeal from LAT re: AC and HK Limitation Period.
Date Heard: June 28, 2018 | Full Decision [PDF]
Material Facts
This applicant for Statutory Accident Benefits seeks judicial review of a decision from the LAT that ruled the applicant’s claim for attendant care and housekeeping benefits is statute barred. The applicant was injured in a motor vehicle accident on September 12, 2008 (O. Reg 403/96) when she was struck at a cross walk suffering various injuries including multiple fractures in her left shoulder. On October 13, 2008, the applicant submitted an application for accident benefits and was entitled to, and received, attendant care and housekeeping up until September 12, 2010, effectively paying benefits for the 104 week period.
On August 10, 2010, the applicant submitted for the approval of assessment to evaluate CAT impairment to which the respondent insurer indicated on September 12, 2010, that benefits were not payable until the applicant was determined to be catastrophically impaired as defined under the SABS. Fast forward to May 5, 2014 where the Applicant’s treating Orthopaedic Surgeon prepared an updated report noting a substantial change in the applicants left knee requiring a cane. On May 13, 2015, an OCF-19 was submitted for the determination for CAT Impairment. The applicant underwent assessment between August 26 and September 17, 2015 concluding that the applicant met the threshold. On November 4, 2015 the respondent insurer denied retroactive and future attendant care as well as housekeeping benefits, citing a failure to dispute the original denial of benefits by letter as of September 12, 2010.
The LAT application was filed on September 29, 2016, with the hearing taking place on June 19, 2017. The Tribunals decision was rendered on September 7, 2017. Applying the principles in Smith v. Co-operators General Insurance Co., 2002 SCC 30, the Vice-Chair held that the insurer’s August 26, 2010 letter constituted a clear denial of benefits. The applicant’s failure to adhere to the 2-year limitation to dispute the denial was consistent with the Court of Appeal in Sietzema v. Economical Mutual Insurance Co., 2014 ONCA 111 in statute barring the applicants claim for SABS.
Importantly, the Vice-Chair dismissed the applicant’s argument that the limitation period does not begin until the applicant ‘discovers’ that she is catastrophically impaired. The limitation period is triggered by the insurer’s refusal to pay a benefit and does not encompass the doctrine of discoverability, citing O’Leary J., in Kirkham v. State Farm Mutual Automobile Insurance Co., [1998] O.J. No. 6459 (Div. Ct); leave to appeal refused [1998] O.J. No. 2872 (C.A.).
Issues
- Whether a limitation period is one that bars claims regardless of whether the claimant is aware they have a claim or whether it may be relieved against where the claimant only becomes aware sometime after the limitation period expires.
Brief Answer
Appeal dismissed.
Analysis
In analysing the discoverability principle Morawetz R.S.J., Whitten J., and Gray J., the Divisional Court paid particular attention to the applicant’s submission at [27-8] that the applicant was not in a position to claim the enhanced benefits until they were in a position to do so. Any other conclusion would ‘run afoul of the well-established authority, to the effect that a limitation period commences to run only when the claimant becomes aware that a claim can be made’, relying on Peixeiro v. Haberman, [1997] 3 S.C.R. 549. The applicant argues that the principle of Discoverability applies universally to all causes of action unless expressly displaced by the legislation at issue, which is not the case here.
However at [58] the Divisional Court took note that narrow exceptions to the principle could apply to create a ‘hard’ limitation period, citing Levesque v. Crampton Estate, 2017 ONCA 455.
Like the result in Levesque, the result in the case before us may be considered harsh. It was not determined that the applicant was catastrophically impaired until 2015. Had she been catastrophically impaired, and had disputed the insurer’s refusal to pay attendant care and housekeeping and home maintenance expenses within a period of two years after September 12, 2010, she would qualify for payment of those expenses. However, as found by the Tribunal, the insurer had clearly and unequivocally refused to pay those expenses as of September 12, 2010.
The Divisional Court goes on to state at [66] that there are policy considerations on both sides of ‘hard’ limitation periods. An Insurer has no control, under the SABS, over when an insured applies for a designation for CAT impairment and would not assess an applicant on a continuous basis 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.
Conclusion
The limitation periods under the SABS are ‘hard’, capable of barring claims despite discoverability. The Divisional Court concluded at [67] that, ‘In my view, in view of the decision of this court in Kirkham, from which leave to appeal was refused, and those of the Court of Appeal in Haldenby, Turner and Sietzema, this application must be dismissed.’ Costs were agreed to be fixed at $8,750 all-inclusive.
At the time of writing this article, no appeal has been filed.
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