Case information

Insurance — Statutory accident benefits — Catastrophic Impairment — Limitation period — Whether the two-year limitation period contained in Insurance Act, R.S.O. 1990, c. I.8, s. 281.1(1), and Statutory Accident Benefits Schedule — Accidents On or After November 1, 1996, O. Reg. 403/96 (“SABS”), ss. 18(3) and 22(4), was subject to discoverability.

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Ms. Tomec was stuck by a motor vehicle while she was walking on September 12, 2008. She applied to her insurer, Economical Insurance Corporation, and received statutory accident benefits for attendant care under s. 18 of the Statutory Accident Benefits Schedule — Accidents On or After November 1, 1996, O. Reg. 403/96 (“SABS”), and housekeeping under s. 22 of the SABS. At the end of 104 weeks, those benefits are no longer available unless the beneficiary is designated as having sustained a “catastrophic impairment”: SABS, ss. 18(3) and 22(4). On August 26, 2010, Economical advised Ms. Tomec that her eligibility for the benefits would end on September 12, 2010. It is common ground that her injuries did not meet the criteria for catastrophic impairment at that time, so her physician did not apply for the designation and she did not appeal the termination of benefits to the Licence Appeals Tribunal. However, her condition worsened over time and, on May 13, 2015, her physician concluded that she had become catastrophically impaired as a result of the accident. Economical accepted that opinion on November 4, 2015, and, on that basis, provided various elevated statutory benefits. However, it refused to provide further past or future attendant care and housekeeping benefits on the grounds that it had denied the benefits in August 2010 and Ms. Tomec was out of time to appeal the denial.

Ms. Tomec appealed Economical’s decision to the Tribunal, which found that the August 2010 letter was a clear, unequivocal denial of the SABS benefit, triggering the two year limitation period (Smith v. Co-Operators General Insurance Co., 2002 SCC 30) and that the discoverability doctrine did not apply. Ms. Tomec’s application for judicial review was denied by the Divisional Court. On appeal, the Court of Appeal held that the limitation period was subject to the discoverability rule, so Ms. Tomec was able to apply for the enhanced benefits.