{"id":30504,"date":"2020-02-05T02:15:28","date_gmt":"2020-02-05T02:15:28","guid":{"rendered":"https:\/\/wagners1.wpenginepowered.com\/blog\/case-summary-tomec-v-economical-mutual-insurance-company-2019-onca-882\/"},"modified":"2020-02-05T02:15:28","modified_gmt":"2020-02-05T02:15:28","slug":"case-summary-tomec-v-economical-mutual-insurance-company-2019-onca-882","status":"publish","type":"post","link":"https:\/\/wagners.co\/fr\/blog\/case-summary-tomec-v-economical-mutual-insurance-company-2019-onca-882\/","title":{"rendered":"Case Summary: Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882"},"content":{"rendered":"\n

Background<\/h3>\nOn 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 (\u201cSABS<\/em>\u201d) which included attendant care benefits and housekeeping benefits. SABS<\/em> benefits are the Ontario equivalent of Section B in Nova Scotia.\n\nUnder the SABS <\/em>scheme these benefits are payable for 104 weeks post accident unless they claimant meets the exception for \u201cCatastrophic Impairment\u201d (\u201cCAT\u201d). 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.\n\nIn 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\u2019s decision to the Licence Appeal Tribunal (\u201cLAT\u201d). Both the LAT (and the further appeal to the Divisional Court \u2013 found here: https:\/\/www.canlii.org\/en\/on\/onscdc\/doc\/2018\/2018onsc5664\/2018onsc5664.html<\/a>) found that a hard limitation period applied and as such the rule of discoverability did not apply.\n

Issue on Appeal<\/h3>\nDetermination on whether the two-year limitation period in both s. 281.1(1)\u00a0of the\u00a0Insurance Act<\/em>, R.S.O. 1990, c. I.8\u00a0and\u00a0s. 51(1)\u00a0of the\u00a0Statutory Accident Benefits Schedule - Accidents On or After November 1, 1996<\/em>, O. Reg. 403\/96, is subject to discoverability.\n

Decision and Analysis<\/h3>\nThe Court notes that \u201cthe discoverability issue in this case is confined to the accident benefits context in Ontario.\u201d (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<\/em>,\u00a02019 SCC 42 (CanLII),\u00a026 B.C.L.R. (6th) 1, which was instructive on when a limitation period should be considered a hard limitation.\n\nPioneer<\/em> considered the rule of discoverability and limitation periods in the context of the Competition Act<\/em>, R.S.C. 1985, c. C-34 and provided the following guidelines for determining whether the rule of discoverability applies (Pioneer<\/em> at paras 34-35):\n\n\u201cFirst, 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.\n\nSecondly (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\u2019s knowledge of his or her injury, the rule of discoverability will not apply.\u201d\n\nThe 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:\n