Applicant did not realize she was “catastrophically impaired” and thus entitled to continuing housekeeping and attendant care benefits under the Statutory Accident Benefits Schedule until after the applicable limitation period had expired. On review, doctrine of discoverability deemed not applicable to the “hard” limitation period.

18. December 2018 0

Administrative law – Decisions reviewed – License Appeal Tribunal – Judicial review – Limitations – Discoverability rule – Standard of review – Reasonableness

Tomec v. Economical Mutual Insurance Co., [2018] O.J. No. 5076, 2018 ONSC 5664, Ontario Superior Court of Justice, October 2, 2018, G.B. Morawetz R.S.J., A.C.R. Whitten and D.K. Gray JJ.

The applicant was seriously injured in a MVA in September 2008 and sought benefits pursuant to the SABS. She received attendant care and housekeeping benefits from the date of her application up to September 2010, being 104 weeks from the MVA. In August 2010, her doctor applied for a file review concerning whether she had been catastrophically impaired, as a “catastrophically impaired” person is entitled to receive ongoing benefits after the 104-week period. In August 2010, the insurer denied the application for continued benefits, noting that no payment for the benefits would be payable after 104 weeks unless she was determined to have sustained a catastrophic impairment as defined by the SABS. The denial letter indicated that if she wanted to dispute the assessment, mediation must be commenced within 2 years from her receipt of the letter. In May 2015, her doctor submitted an application for determination of catastrophic impairment, opining on the basis of updated medical information that she was catastrophically impaired. The insurer denied payment of benefits past the 104-week period on the basis that they had been denied pursuant to ss. 18(2) and 22(3) of the SABS and the applicant had not mediated that denial within two years of that date, as required.

The applicant filed an application to the License Appeal Tribunal regarding the denial. The Tribunal found she was barred from proceeding with her application for benefits despite having a catastrophic impairment because she did not dispute the stoppage of those benefits within 2 years of the denial. The fact that she was not found to be catastrophically impaired until after the limitation period expired did not absolve her from her obligation to adhere to it.

The Ontario Superior Court of Justice dismissed the applicant’s application for judicial review. The main issue on review was whether the doctrine of discoverability applies to the limitation periods in question under s. 51 of the SABS and s. 281.1(1) of the Insurance Act. The Court noted that, notwithstanding policy considerations surrounding discoverability, there is a narrow category of limitation periods that can be considered “hard” that are triggered by a fixed and known event. In such a case, a claim can be barred even before the claimant is aware that he or she had a claim. The Court concluded that the legislature had tied the commencement of the limitation period under the Insurance Act and SABS to the fixed and known event of a denial of benefits, and the limitation period was therefore a “hard” one. Thus, the applicant’s application for ongoing benefits on account of being catastrophically impaired was statute-barred.

This case was digested by Kara Hill, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Kara Hill at

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