In a decision on a preliminary issue released September 7, 2017, Vice Chair Trojek of the LAT held that a catastrophically impaired Applicant missed the two year limitation period to dispute the Insurer's refusal to pay housekeeping and attendant care benefits, coming to the same conclusion ADR Chambers came to in a similar case last year (Mayo v. Economical Mutual Insurance Co., [2016] O.F.S.C.D. No. 342 (QL).
In S.T. v. Economical, the Applicant was involved in a motor vehicle accident on September 12, 2008. Following the accident, the Applicant received various benefits under the SABS, including housekeeping and attendant care benefits. Economical sent the Applicant an OCF-9 near the two year mark advising that no further housekeeping and attendant care benefits would be paid after the 104-week mark. The Applicant submitted an Application for Determination of Catastrophic Impairment almost seven years post-accident. After appropriate assessments were completed, she was deemed to be catastrophically impaired by Economical. After this the Applicant submitted further expenses for housekeeping and attendant care, which were also denied. The Applicant did not dispute the initial denial of housekeeping and attendant care until September 29, 2016.
Various arguments were raised on behalf of the Applicant; however, the main arguments were that there can be no denial prior to entitlement and that the limitation period could not begin to run until the Applicant discovered she was catastrophically impaired . The Applicant argued that since there is no limitation period for applying for catastrophic designation or for disputing an insurer's denial of a catastrophic application, to accept Economical's position would be to accept that insurers can create a time limit/limitation period for when an insured must apply for catastrophic impairment determination, which goes against recent decisions such as Guarantee v. Do and Machaj v. RBC.
Economical argued that the Do and Machaj decisions were not relevant to the issue in this case because it was the specific benefits claimed that were denied -- not catastrophic designation. The Vice Chair agreed and found that in keeping with the Court's decisions in Sietzema, Haldenby, and Turner, that the objective of consumer protection must be balanced against other objectives, such as the finality and certainty that limitation periods provide. The Vice Chair also confirmed that the principle of discoverability does not apply in the scheme of statutory accident benefits.
See 16-003034 v Economical Mutual Insurance Company, 2017 CanLII 59507 (ON LAT)
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