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AUTOMOBILE INSURANCE - Accident benefits

Tuesday, December 24, 2019 @ 6:20 AM  


Lexis Advance® Quicklaw®
Appeal by Tomec from a Divisional Court judgment confirming that her claim for certain statutory accident benefits was out of time. In September 2008, the appellant was a pedestrian struck by a vehicle. She was hospitalized and required surgery. She applied to the respondent, her insurer, for statutory accident benefits for attendant care and housekeeping. Such benefits were payable for two years unless the beneficiary received a Catastrophic Impairment (CAT) designation. The parties agreed that the appellant's injuries did not initially warrant a CAT designation. However, her condition worsened over the next five years. In 2015, the appellant's doctor opined the appellant now met the CAT criteria due to the 2008 accident. In November 2015, the respondent accepted the doctor's opinion and elevated her benefits on that basis. However, the respondent refused to provide further attendant care and housekeeping benefits for the period of September 2010 and November 2015, or on an ongoing basis. The appellant appealed to the Licence Appeal Tribunal. The Tribunal and the Divisional Court both found that the claim was out of time based on an August 2010 letter from the respondent refusing further payment. Tomec appealed.

HELD: Appeal allowed. The decisions by the Tribunal and the Divisional Court finding that discoverability did not apply to the limitation period in s. 281.1(1) of the Insurance Act and s. 51(1) of the Statutory Accident Benefits Schedule was unreasonable. The purpose of SABs was to maximize benefits for a class of victims who suffered health impacts from motor vehicle accidents. A hard limitation period prevented the appellant from making a claim for the benefits the SABs, as consumer protection legislation, was intended to provide. In addition, a hard limitation period created an absurd result, as it effectively barred the appellant from claiming enhanced benefits before she was eligible for such benefits. The limitation period in this case was subject to the rule of discoverability, as it was directly tied to the cause of action that an insured can assert when denied benefits. The appellant was entitled to proceed with her application for benefits.

Tomec v. Economical Mutual Insurance Co., [2019] O.J. No. 5677, Ontario Court of Appeal, C.W. Hourigan, M.L. Benotto and J.M. Fairburn JJ.A., November 8, 2019. Digest No. TLD-December232019004