Tribunals Ontario Safety, Licensing Appeals and Standards Division 77 Wellesley Street West, Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca
Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes 77 rue Wellesley Ouest, Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca
RECONSIDERATION DECISION
Before: Jesse A. Boyce, Adjudicator
File: 17-008493/AABS
Case Name: [The Applicant] v. TD Home and Auto Insurance Company
Written Submissions by:
For the Applicant: Daniel D’Urzo
For the Respondent: Al Alilovic
OVERVIEW
1This request for reconsideration was filed by the applicant, [the applicant]. It arises out of a written preliminary issue decision in which the Tribunal found that [the applicant]’s application for attendant care benefits (“ACBs”) and housekeeping benefits (“HKBs”) was statute-barred from proceeding to the Tribunal under s. 51 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”) due to his failure to commence his appeal within two years of the respondent TD’s denial of same.
2[The applicant] submits that the Tribunal erred in law in its determination and now requests the Tribunal reverse its decision to statute-bar his appeal, citing the recent Court of Appeal case Tomec v. Economical Insurance Company, 2019 ONCA 882 for support that the doctrine of discoverability applies. Pursuant to Rule 18.1 of the Tribunal’s Common Rules of Practice and Procedure, I have been delegated responsibility to reconsider this matter.
RESULT
3[The applicant]’s request for reconsideration is granted. I reverse the Tribunal’s previous decision on the preliminary issue and find [the applicant] may proceed to the Tribunal with his claim.
ANALYSIS
4The grounds for a request for reconsideration are contained in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration will not be granted unless one of the following criteria are met:
(i) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
(ii) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
(iii) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
(iv) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
5Here, the basis for [the applicant]’s reconsideration request falls under Rule 18.2(b). [The applicant] argues that the Tribunal made a significant error of law that would have resulted in a different decision. Specifically, [the applicant] submits that the Tribunal erred in law by imposing a “hard” two-year limitation on his claim prior to his catastrophic determination (“CAT”) that did not consider the doctrine of discoverability, as directed by the Tomec Court. In turn, [the applicant] submits that the Tribunal erred by finding that his claims for ACBs and HKBs were statute-barred.
6TD submits that [the applicant]’s request should be dismissed. First, it argues that [the applicant]’s request is an attempt to relitigate matters that were before the Tribunal in the preliminary issue hearing and he has not demonstrated a significant legal error that would affect the decision. Second, applying the principle of discoverability, TD submits that [the applicant] “discovered” his claim on June 23, 2005 when the benefits were properly denied, and his claim was properly statute-barred by the Tribunal as it would result in the same conclusion. Third, it argues that Tomec is distinguishable from this case, because TD denied ACBs and HKBs on June 23, 2005—well before the 104-week mark of May 12, 2006—on the basis that [the applicant] did not meet the applicable disability test for medical reasons and not because his funding limits were exhausted as in Tomec. TD argues that, unlike Tomec, [the applicant] had knowledge of all the necessary elements of the cause of action at the time of its clear and unequivocal denial on June 23, 2005. TD submits that [the applicant] had knowledge of the existence of his legal rights before such rights expired.
Background
7[The applicant] sustained significant injuries as a result of the accident of May 12, 2004, including fractures to his pelvis, clavicle and ribs. He underwent multiple surgeries, including surgery to his pancreas, liver and intestines. He remained in hospital for four months and remained on strong pain medication. Following his discharge from the hospital, [the applicant] was provided with nursing and attendant care from the Ministry of Health and Long-Term Care as primary care.
8An application for accident benefits (“OCF-1”) dated May 26, 2004 was sent to TD. ACBs and HKBs were not claimed in the OCF-1. An assessment of attendant care and housekeeping needs was conducted on [the applicant] in his parent’s residence where he was staying at the time. The assessments occurred on September 14, 2004 and on September 21, 2004 and were conducted by Ms. Paulsson, occupational therapist (OT). Ms. Paulsson initially assessed [the applicant]’s attendant care needs at $232.20 per month, but after the follow-up visit on September 21, ultimately concluded that [the applicant] was entitled to $0.00 for ACBs and HKBs.
9Multidisciplinary assessments were conducted with [the applicant] on May 30-31, 2005. The conclusion was that [the applicant] was not disabled from self-care and housekeeping duties. Copies of these assessments were sent to [the applicant] on June 22, 2005 with a covering letter that encouraged him to discuss the findings with his family physician, as he was not represented by counsel at this point in time. TD sent an Explanation of Benefits (“OCF-9”) to [the applicant] dated June 23, 2005 in which it informed him that it was refusing to pay ACBs or HKBs. The amounts claimed by [the applicant] for these benefits are indicated as $0.00 in the OCF-9. The amounts listed as payable for these benefits is also indicated as $0.00.
10In 2015, [the applicant] sought a CAT determination. On December 8, 2015, TD accepted that [the applicant] was CAT impaired as a result of the accident. [The applicant] then submitted his claims for ACBs and HKBs to TD on March 21, 2016. TD denied the claimed benefits on April 22, 2016, citing its 2005 pre-CAT denials. On December 4, 2017, [the applicant] filed his appeal with the Tribunal.
11At the case conference, TD raised the preliminary issue and a written hearing was set down to determine whether [the applicant]’s application was statute-barred. In January 2019, [the applicant] moved to have the preliminary issue hearing adjourned pending the outcome of Tomec at the Divisional Court. The Tribunal denied the adjournment. [The applicant] then requested a reconsideration of the adjournment denial. In June 2019, the Tribunal also denied this request for reconsideration.
12The Tribunal released its preliminary issue decision on June 19, 2019, statute-barring [the applicant]’s appeal due to his failure to dispute TD’s denial of ACBs and HKBs within the two-year limitation period. [The applicant] requested reconsideration of the preliminary issue decision in July 2019. The parties provided complete reconsideration submissions by August 2019.
13Following the release of the Ontario Court of Appeal’s decision in Tomec, the Tribunal reached out to the parties for further submissions. Specifically, the Tribunal sought supplementary submissions on how the Tomec decision affects [the applicant]’s request for reconsideration. The parties provided timely supplementary submissions in February 2020.
Tomec v. Economical Insurance Company, [2019 ONCA 882](https://www.minicounsel.ca/oca/2019/882)[^1]
14Before delving into the Tribunal’s preliminary issue decision, it is important to succinctly lay out the Tomec findings because not only do they, in my view, alter the outcome of the Tribunal’s preliminary issue decision, but the findings also altered the focus of [the applicant]’s request for reconsideration.
15First, Tomec was decided after the release of the Tribunal’s decision, so neither of the Tribunal nor the parties had the benefit of the Court of Appeal’s guidance. Second, [the applicant] requested reconsideration in July 2019, which was also prior to the Court of Appeal’s determination. Accordingly, the initial reconsideration submissions of [the applicant] and TD did not address discoverability or its application to accident benefit appeals. The supplementary submissions did.
16The primary issue in Tomec was whether the two-year limitation period in both s. 281.1(1) of the Insurance Act and s. 51(1) of the Schedule are subject to discoverability. The Court of Appeal determined that “the analysis is not focused on whether a limitation period is tied to a fixed event [ . . . ] Rather, the question is whether the limitation period is related to the cause of action or the plaintiff’s knowledge.” The Court rejected the insurer’s argument that a refusal to pay a benefit is a specific event that is not tied to a cause of action, finding that the applicable limitation period “is tied to the accrual of the cause of action.” The Court reasoned that “[T]he refusal to pay a benefit and the ability to make a claim are inextricably intertwined in the cause of action. The refusal cannot be stripped out of the cause of action and treated as if it is independent of it.”
17The decision opines at length on policy rationales and what it considers to be “absurd results,” pointing out that a “hard” limitation—such as the two-year limitation in Tomec and the one statute-barring [the applicant] in this matter—bars an applicant from receiving benefits before the applicant is even entitled to those benefits. Tomec concerns enhanced benefits under the catastrophic category, so I find the takeaway just as applicable here to [the applicant]’s ACB and HBK claims now that he is CAT. In the Court of Appeal’s view, the “hard” two-year limitation put the applicant in “[. . . ] an impossible situation, where the time for claiming a benefit commences when she is ineligible to make such a claim. This is an absurd result.”
18I follow the guidance provided by Tomec that the doctrine of discoverability applies. With Tomec in mind, and contrary to TD’s submissions, I find the Tribunal made several errors of law.
The Tribunal’s decision
19In its preliminary issue decision, the Tribunal made several important findings that inform the current dispute. In my view, these findings were affected by the determinations of the Tomec Court and, on review, constitute errors of law that would have resulted in a different outcome:
(i) First, at para. 27, the Tribunal found that “the evidence is clear and uncontested that SC made no claim for ACB/HBKs: his OCF-1 did not include ACB/HBKs and TD’s OCF-9 is perfectly clear that the claim for ACB/HBKs in this case was $0.00.”
(ii) Second, at para. 29(i), the Tribunal found that “TD’s 2005 denial was clear, unequivocal and included all of the required elements of a valid denial.”
(iii) Third, at para. 29(vi), the Tribunal found that [the applicant] “points me to no authority for any conclusion that TD is prevented from adjusting his claim proactively and notifying him that it will refuse to pay ACBs.”
(iv) Fourth, at para. 29(vii), the Tribunal found that “[the applicant] does not explain why he waited over a decade, until he had been determined to be CAT impaired, to apply for ACBs. But it is clear that TD’s refusal to pay was based on medical reasons and in no way linked to [the applicant]’s CAT determination.”
(v) Finally, at para. 29(viii), the Tribunal, citing para. 16 of Sietzema v. Economical Mutual Ins. Co., 2014 ONCA 111, found that “[the applicant]’s attempt to claim ACBs in March 2016 fails because ‘there is no provision in the Insurance Act or the Schedule which allows a claimant to reapply for further benefits after an insured person’s benefits have been terminated by the insurer. The only remedy for the insured person is to appeal the termination of benefits within the two-year period.’”
The Tribunal decision leads to “absurd results”
20In the preliminary issue decision, the Tribunal determined that TD issued a valid, pre-emptive denial of ACBs and HKBs in 2005 because [the applicant] was not disabled from self-care and housekeeping duties. The Tribunal found that TD was able to issue a pre-emptive denial of these benefits despite also finding that [the applicant] made no claim for ACB/HBKs and that his OCF-1 did not include ACB/HBKs. Applying Tomec, I find this was an error of law.
21Tomec makes clear that the applicable limitation period is tied to the “accrual” of the cause of action. In 2005, [the applicant] was recovering from his injuries, living at his parents’ home and was not yet determined to be CAT. This is undisputed. It seems that over time, his accident-related impairments deteriorated, resulting in TD accepting his CAT determination in 2015. At the time of his initial application, [the applicant] was not seeking ACBs or HKBs because, as the Tribunal stated, his “OCF-1 did not include ACB/HBKs and TD’s OCF-9 is perfectly clear that the claim for ACB/HBKs in this case was $0.00.” In effect, [the applicant]’s entitlement to ACBs and HKBs was not “discovered” by him at this point, but rather, was “accrued” over time as his impairments increased and his function diminished.
22It is therefore difficult to reconcile the Tribunal’s finding that TD’s 2005 denial of ACBs and HKBs started the limitation period with the recent direction provided by Tomec. To bar [the applicant]’s claim leads to the type of absurd results contemplated by Tomec: where the time for [the applicant] to claim his ACBs and HKBs (and the limitation period for him to dispute TD’s pre-emptive denial) somehow both commenced and elapsed prior to [the applicant] requiring the benefits or, as it pertains to enhanced benefits under the CAT designation, discovering his eligibility to make a claim for same. In 2005, [the applicant] did not require ACBs and HKBs, but TD denied them. In 2016, having recently been determined CAT, [the applicant] discovered that he required ACBs and HKBs, but TD relied on its 2005 to deny [the applicant]’s claim again.
23On review of the decision and with the guidance provided by Tomec, I find that [the applicant] did not “discover” his claim for ACBs and HKBs until he was determined CAT and had a need for ACBs and HKBs. To allow TD to pre-emptively deny entitlement where it was not explicitly claimed (and where CAT would not be realized for a decade) and then also strictly adhere to the limitation period to reinforce that denial would, in my view, undermine the consumer protection nature of the Schedule and the policy rationale of limitation periods.
24Here, to allow TD’s pre-emptive denial to stand as a barrier to entry into the dispute resolution process unfairly punishes [the applicant], as it effectively means that he took too long to require ACBs and HKBs and, in turn, become CAT. On review, [the applicant] should not be punished for discovering his eligibility after an arbitrary limitation period elapsed and only following the denial of a benefit he never even sought. I agree that to do so would be absurd, as TD’s refusal to pay the benefit and [the applicant]’s ability to actually make the claim would not be “inextricably intertwined” as required by Tomec.
25Indeed, I find on the evidence that [the applicant] is not statute-barred, as his impairment and eligibility for same were discovered, or accrued, over time and not immediately following the accident or at the time of TD’s pre-emptive denial. In my view, it follows that the pre-emptive denial by TD in 2005 was premature and the Tribunal’s finding of a valid denial was an error because such a refusal would be, as Tomec describes, “stripped out of the cause of action and treated as if it is independent of it.” Further, the hard limitation period relied on by TD and upheld by the Tribunal in the preliminary issue decision was also an error, as the accrual of [the applicant]’s cause of action had not yet triggered the limitation period, which I find began on April 22, 2016.
26While I am alive to TD’s submissions, I do not agree that [the applicant] is using the Tribunal’s reconsideration process to reargue the merits of his case. Indeed, Tomec was released after both of the preliminary issue decision and the reconsideration submission deadlines imposed by the Tribunal. Further, I find [the applicant] has met his onus to prove that the Tribunal made errors of law that, with the benefit of Tomec, materially affect the outcome of the decision, namely that [the applicant] should, at the very least, be permitted to proceed to a substantive hearing and not be statute-barred at the preliminary stage.
27It follows that I disagree with TD that had the Tribunal applied the doctrine of discoverability, that it would have resulted in the same outcome. While Tomec is not the type of authority contemplated by the Tribunal to definitively show that “TD is prevented from adjusting [[the applicant]’s] claim proactively and notifying him that it will refuse to pay ACBs” I find that Tomec does provide the lifeline to applicants whose claims for benefits were pre-emptively denied by an insurer prior to their condition deteriorating to the point where they actually require the pre-emptively denied benefits. In my view, this is the purpose of discoverability. Further, had the Tribunal been alive to the Tomec guidance on discoverability, I find it would have resulted in a different outcome.
28The discoverability doctrine also highlights the Tribunal’s error where it cited Sietzema, that “there is no provision in the Insurance Act or the Schedule which allows a claimant to reapply for further benefits after an insured person’s benefits have been terminated by the insurer.” On the evidence, the Tribunal found that [the applicant] did not “apply” for ACBs or HKBs in 2005—TD pre-emptively terminated them—so it cannot be said that [the applicant] “re-applied” for the benefits once he was CAT. Rather, it was only once he was deemed CAT by TD that he sought ACBs and HKBs, presumably out of need. Further, the lack of a “re-apply” provision in the legislation cannot be held against an insured, as the Tribunal did at para. 29(viii), because this blind spot is what prompted the Court of Appeal to find that discoverability applies to accident benefits claims.
29I also disagree with TD’s argument that [the applicant] “[…] had knowledge of all the necessary elements of the cause of action at the time of the clear and unequivocal denial by [TD] on June 23, 2005. [[the applicant]] had knowledge of the existence of his legal rights before such rights expired.” I find this is the type of absurdity contemplated by the Tomec Court: [the applicant] should have disputed a pre-emptive denial of ACBs and HKBs he did not need or claim at the time because he was somehow supposed to know that he would be CAT in ten years and would need those benefits then? No. I find [the applicant] only had knowledge of his legal CAT rights once he was determined CAT.
30Accordingly, while I make no finding on [the applicant]’s substantive entitlement to ACBs or HKBs, I do find, considering the guidance provide by the Court of Appeal in Tomec, that it was a reversible error to statute-bar [the applicant] from proceeding with his application at the preliminary stage.
CONCLUSION
31For these reasons, [the applicant]’s request for reconsideration is granted. I reverse the Tribunal’s previous decision on the preliminary issue and find [the applicant] may proceed to the Tribunal with his claim. The parties are directed to contact the Tribunal to schedule a case conference to determine how to proceed.
Released: March 20, 2020
Jesse A. Boyce
Adjudicator