What happens if your automobile accident-related injuries get worse after your initial entitlement to insurance benefits has ended? A recent decision by the Ontario Court of Appeal may impact your ability to claim further accident benefits under such circumstances.
Discoverability in Accident Benefit Claims: Tomec v Economical Mutual Insurance Company
On November 8, 2019, the Ontario Court of Appeal released Tomec v Economical Mutual Insurance Company (2019 ONCA 882). In this decision, likely to be one of the most impactful of the year with respect to automobile accident benefits claims, the Ontario Court of Appeal found that the discoverability principle is indeed applicable to the Insurance Act (the “Act”) and to claims under the Statutory Accident Benefits Schedule (“SABS”).
The Appellant, Sotira Tomec, was injured in a collision in 2008. Ms. Tomec was eligible for attendant care benefits and housekeeping benefits through her insurer, Economical Mutual Insurance Company (“Economical”), but was not deemed Catastrophically Impaired (“CAT”), which would have extended her entitlement to these benefits indefinitely. As a result, she stopped receiving benefits at 104 weeks post-accident. At the time, it was accepted that Ms. Tomec was not CAT and she did not appeal the termination of benefits.
For more on catastrophic injury and benefits, see our recent article Understanding Attendant Care Benefits After Injury.
Ms. Tomec’s condition declined and in 2015, her doctor diagnosed her as CAT as a result of impairments stemming from the accident. She subsequently submitted a new claim to Economical for attendant care and housekeeping benefits. Economical accepted Ms. Tomec’s CAT diagnosis, but denied her claim. Economical took the position that the benefits had been properly denied in 2010 at the 104-week mark. It argued that Ms. Tomec had not appealed this “denial” of benefits within the two-year limitation period, as required by law, and that, accordingly, her claim was statute barred.
Ms. Tomec first applied to the Licence Appeal Tribunal, and then later to the Divisional Court, arguing that at the time of Economical’s original “denial”, she was not entitled to the benefit because she was not CAT, and therefore had not “discovered” her claim such as to trigger the running of the limitation period. Both the Tribunal and the Divisional Court found that the discoverability principle did not apply to the relevant sections of the Act or the SABS and held that Ms. Tomec’s claim was statute barred.
At the Court of Appeal, Justice Hourigan, writing for the Court, relied on the recent Supreme Court of Canada (“SCC”) decision in Pioneer Corporation v Godfrey (“Pioneer”) for guidance in determining when discoverability applies to a limitation period.
In Pioneer, the SCC found that the discoverability principle applies in cases where the start of a limitation period is contingent on the plaintiff having knowledge of the injury, whereas the principle does not apply where the start of a limitation period is unrelated to when an action is discovered. Justice Hourigan determined that the relevant question in determining whether discoverability applied was:
Whether the limitation period is related to the cause of action or the plaintiff’s knowledge.
In this instance, Justice Hourigan wrote that there must be a refusal to pay a benefit in order to create a cause of action. Justice Hourigan noted that to apply a hard limitation period in this instance would be to create an absurd result, as Ms. Tomec would be barred from applying for benefits before she was eligible to claim them. The Court of Appeal held that discoverability applied to the Act and the SABS where the cause of action was directly link to the denial of benefits. As such, the Court of Appeal declared that the limitation period with respect to Ms. Tomec’s claim had not expired and that she was entitled to proceed with her claim.