William Keele

A pedestrian struck by a vehicle in 2008 received statutory accident benefits for attendant care and housekeeping until the insurer terminated them in 2010.

In 2015, after receiving a catastrophic impairment designation, the claimant reapplied for benefits.

The Tribunal and Divisional Court found the claim was out of time based on a two-year limitation period.

The Court of Appeal allowed the appeal, finding that the limitation period was subject to the rule of discoverability and was not a hard limitation period.

The court held that applying a hard limitation period would be contrary to the consumer protection purposes of the Statutory Accident Benefits Schedule and would produce an absurd result by barring claims before the claimant was eligible to make them.

The moving defendants sought a determination that the substantive law governing liability for a skiing accident occurring in Colorado should be the law of Colorado rather than Ontario.

The plaintiff argued that Ontario law should apply because the parties’ relationship, contractual documents, and supervisory duties arose in Ontario.

Applying the Supreme Court of Canada’s decision in Tolofson v. Jensen, the court held that the lex loci delicti rule governs tort claims and that the substantive law of the place where the tort occurred generally applies.

The court found no exceptional circumstances warranting departure from that rule despite the parties’ Ontario connections.

The liability issues, including negligence, standard of care, causation, and contributory negligence, were therefore to be determined under Colorado law.