Case Summary: Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882

February 5, 2020  |  News

Background

On September 12, 2008, the Plaintiff was a pedestrian struck by a car which resulted in her hospitalization with multiple injuries including broken bones in her left shoulder requiring surgery. She applied to Economical (her insurer) and began receiving Statutory Accident Benefits Schedule (“SABS”) which included attendant care benefits and housekeeping benefits. SABS benefits are the Ontario equivalent of Section B in Nova Scotia.

Under the SABS scheme these benefits are payable for 104 weeks post accident unless they claimant meets the exception for “Catastrophic Impairment” (“CAT”). If an injury is deemed to be a CAT, the 104 week period does not apply. In August 2010 Economical informed her they would be ending her benefits in September 2010 as her injuries were not considered a CAT. Her family doctor did not designate her injuries as such and further she did not appeal this decision. The result was she lost her attendant care benefits and housekeeping benefits.

In the following 5 years the Plaintiff underwent multiple tests related to her injuries and her condition continued to worsen over this time. By May 2015 her family doctor reported that she now met the definition of CAT with respect to the injuries from the accident. Economical agreed she was a CAT and elevated her benefits to reflect this but denied her further attendant care benefits and housekeeping benefits. The Plaintiff appealed Economical’s decision to the Licence Appeal Tribunal (“LAT”). Both the LAT (and the further appeal to the Divisional Court – found here: https://www.canlii.org/en/on/onscdc/doc/2018/2018onsc5664/2018onsc5664.html) found that a hard limitation period applied and as such the rule of discoverability did not apply.

Issue on Appeal

Determination on whether the two-year limitation period in both s. 281.1(1) of the Insurance Act, R.S.O. 1990, c. I.8 and s. 51(1) of the Statutory Accident Benefits Schedule – Accidents On or After November 1, 1996, O. Reg. 403/96, is subject to discoverability.

Decision and Analysis

The Court notes that “the discoverability issue in this case is confined to the accident benefits context in Ontario.” (para 23). Further, it is noted that the Divisional Court did not have the benefit of guidance from the Supreme Court of Canada on this matter as the leading case, Pioneer Corporation v. Godfrey, 2019 SCC 42 (CanLII), 26 B.C.L.R. (6th) 1, which was instructive on when a limitation period should be considered a hard limitation.

Pioneer considered the rule of discoverability and limitation periods in the context of the Competition Act, R.S.C. 1985, c. C-34 and provided the following guidelines for determining whether the rule of discoverability applies (Pioneer at paras 34-35):

“First, where the running of a limitation period is contingent upon the accrual of a cause of action or some other event that can occur only when the plaintiff has knowledge of his or her injury, the discoverability principle applies in order to ensure that the plaintiff had knowledge of the existence of his or her legal rights before such rights expire.

Secondly (and conversely), where a statutory limitation period runs from an event unrelated to the accrual of the cause of action or which does not require the plaintiff’s knowledge of his or her injury, the rule of discoverability will not apply.”

The Court found that the denial of the Plaintiffs benefits was clearly tied to the cause of action and could not be parsed out to exist independently of the cause of action. In reaching this decision the Court considered a multitude of factors including:

  • The Purpose of the Legislation
    • The Court, guided by Pioneer, following the finding that discoverability applied, considered the purposes of the SABS scheme. It was found that SABS has a public policy objective, with importance of protecting CAT victims as they generally suffer from “lasting and very serious health impacts as result of a motor vehicle accident.” (Tomec para 43). Of particular importance is the Court’s guidance on interpretation of the statutory scheme, noting the following at para 45; “Given the choice of a statutory interpretation that furthers the public policy objectives underlying the SABSand one that undermines it, the only reasonable decision is to side with the former.”
  • Absurd Result
    • The Court found that the hard limitation period would lead to an absurd result as the limitation period would begin when she is ineligible to bring such a claim. It was also noted that courts must be aware of the “significant disparity in resources between large insurance companies and their insureds, who do not have unlimited resources to bring multiple proceedings, including prophylactic claims based on a future contingency.” (Tomec para 50).
  • Policy Rationales for Limitation Periods
    • The Court considered the three policy rationales for limitations periods which support a finding of a hard limitation period:
      • Limitation periods are intended to (Pioneer para 47)
        • Foster certainty
        • Prevent evidence from going stale
        • Encourage plaintiffs to be diligent in pursuing their claims.
      • The Court held that none of these applied to the Plaintiff’s case.

Takeaways

Pioneer is the leading authority for determining whether the discoverability rule applies, or a hard limitation period applies. With particular importance to personal injury cases, Tomec (guided by the decision in Pioneer) provides us with guidance on limitation periods in the insurance context. Should a scenario fall within the two outlined in Pioneer, it seems clear that the rule of discoverability applies. In applying Pioneer, courts (at least in Ontario) should consider the underlying purposes which support accident benefits legislation and further should consider the power imbalance between plaintiffs and insurance companies.

Relevant Legislation and Sections:

  1. 51(1)

 

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