'Hard' limitation period kept applicant from claiming benefits SABS were intended to provide

Insurance - Automobile insurance - No-fault benefits

Applicant was pedestrian struck by motor vehicle, requiring hospitalization and surgery. Applicant received attendant care benefits and housekeeping benefits for payable 104-week period, after which benefits were terminated. Applicant's condition worsened over following five years, rising to level of catastrophic impairment (CAT). Insurer refused to provide further attendant care and housekeeping benefits, on ground that applicant was outside of two-year limitation period. Applicant's appeals to licence appeal tribunal (LAT) and Divisional Court were dismissed. Applicant appealed to Court of Appeal. Appeal allowed; declaration issued that limitation period had not expired, and applicant could proceed with application for benefits. Decisions below and insurer's narrow interpretation of limitation were incongruous with consumer protection purposes of Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 (SABS). 'Hard' limitation period prevented applicant from making claim for benefits SABS were intended to provide. Hard limitation period would put applicant in impossible situation where time for claiming benefits commenced when she was ineligible to make such claim; this was absurd result, and it was unreasonable for LAT to choose it. Reasonable interpretation of s. 281.1(1) of Insurance Act and s. 51(1) of SABS was that limitation period contained in those sections was subject to rule of discoverability because it was directly tied to cause of action that insured could assert when denied benefits.

Tomec v. Economical Mutual Insurance Company (2019), 2019 CarswellOnt 18336, 2019 ONCA 882, C.W. Hourigan J.A., M.L. Benotto J.A., and Fairburn J.A. (Ont. C.A.); reversed (2018), 2018 CarswellOnt 16316, 2018 ONSC 5664, Morawetz R.S.J., Whitten J., and Gray J. (Ont. Div. Ct.).

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