Allstate Insurance Company of Canada v. Klimitz, 2015 ONCA 698

Released October 19, 2015 | CanLII

This Court of Appeal decision involved an appeal from a judgment of the Divisional Court regarding the limitation period to file for mediation on an accident benefits file. The Divisional Court had dismissed the insurer’s original application for judicial review of a decision made by a Director’s Delegate from FSCO.

The insured had taken the necessary steps to apply for accident benefits after being involved in a 2003 motor vehicle accident. On April 15, 2004, the insured received an Explanation of Benefits (OCF-9) from her insurer advising that she had been denied non-earner benefits. The notice letter explained that a previous orthopaedic evaluation and a recent neurological evaluation completed on behalf of her insurer had determined that she did not suffer a complete inability to carry on a normal life as a result of the accident. An addendum report was completed by the neurologist shortly thereafter. Copies of the two neurological reports were not provided to the insured until July 18, 2006, which was more than two years’ after the original denial notice was given. The insured applied for a FSCO mediation two days’ later. At issue was whether the insured was precluded from proceeding to arbitration as a result of having filed her application for mediation more than two years after her insurer’s refusal to pay non-earner benefits.

The Court of Appeal found that the insurer expressly relied upon the evaluations of two physicians, including the neurologist, in making its decision. It further found that although the insurer’s denial letter purported to enclose a copy of the neurologist’s original report, a copy was not in fact included. The Court of Appeal ultimately agreed with the Divisional Court, that it was not unreasonable for the Director’s Delegate to conclude that the two year limitation period did not begin to run until the insured had received a copy of the neurologist’s report in satisfaction of the insurer’s obligation to provide reasons for its determination under the SABS.


Read the full decision on CanLII.

Veronica Marson
Written by

Veronica Marson joined the team at Singer Kwinter in January 2013. Veronica’s practice is centred on assisting those who have sustained personal injuries or find themselves involved in a compensation dispute with an insurance company. Veronica is fluent in Spanish and is happy to provide her legal services in the language most comfortable to you and your family.