In the Applicant and Brant Mutual Insurance Company, 17-003104/AABS, Brant Mutual Insurance Company (“Brant”) requested a preliminary issue hearing to address whether the Applicant was statute barred from pursuing an Attendant Care Benefit.

The Applicant was involved in an accident on January 4, 2005, and submitted an Activities of Normal Life Form to Brant. On April 6, 2005, Brant informed the Applicant but way of an OCF-9 that she was not entitled to an Attendant Care benefit, based on the findings of it’s assessor, Moira Hunter, Occupational Therapist.

The only time the Applicant requested Attendant Care Benefits was in October 2015, some 10 years after the accident. Brant responded to this request by advising that this benefit was properly denied on April 6, 2005. Further, since the Applicant had failed to dispute the denial of this benefit within 2 years of its denial, Brant argued that the Applicant was now statute barred from doing so.

The Applicant disagreed with Brant’s position, and argued that the 2005 denial was neither clear nor unequivocal and was therefore not valid. The Applicant also argued that there could be no denial of Attendant Care benefits if the procedural requirements for applying for such benefits were not followed (i.e. no formal request for Attendant Care Benefits was submitted to Brant until 10 years after the accident).

In addressing this dispute, Adjudicator Paul Gosio relied on the Supreme Court of Canada’s decision in Smith v. Co-Operators General Insurance Co, which outlined that a limitation period could not commence unless an insurer’s denial was in writing, and was found to be clear and unequivocal. After reviewing Brant’s OCF-9 in 2005, which clearly outlined the reasons for the denial of the Applicant’s Attendant Care Benefits, Adjudicator Gosio concluded that Brant’s denial was clear and unequivocal.

Adjudicator Gosio also examined the Court of Appeal’s decision in Sietzema v. Economical Mutual Insurance Company, which stated that an insurer’s clear and unequivocal denial, even if legally incorrect, would be sufficient to trigger the limitation period. Adjudicator Gosio then held that even if the refusal to pay a benefit was premature, the fact that Brant’s denial was clear and unequivocal, meant that it was sufficient to trigger the limitation period on April 6, 2005. Therefore, since the Applicant failed to initiate litigation or arbitration proceedings arising from the denial of her entitlement to Attendant Care Benefits within the limitation period, Adjudicator Gosio confirmed that she was now statute barred from doing so.

In light of Executive Chair Linda P. Lamoureux’s Reconsideration decision in A.F. v North Blenheim dated December 13, 2017 (blogged about by my colleague Meredith Harper), Adjudicator Gosio’s decision should provide clarity to Insurers concerned about the effectiveness of raising limitation period defences. This decision outlines that the LAT is willing to follow precedent decisions about the need for disputes to be commenced with the limitation period outlined in the Insurance Act and the Statutory Accident Benefits Schedule.

Suzanne Clarke is author of this blog and a partner and a member of the License Appeal Tribunal practice group. If you have a question about this blog or a similar file, please contact Suzanne.