Pursuant to the Statutory Accident Benefits Schedule, a claimant must mediate a denial of a benefit within two years of the denial prior to suing the insurer for the benefit.
In Plaintiff v. RBC General Insurance Company, 2016 ONCA 257, the Plaintiff appealed an order dismissing her action for catastrophic injury benefits under the Statutory Accident Benefits Schedule. The motion judge concluded that the Plaintiff’s failure to mediate the insurer’s denial of her catastrophic impairment status within two years of the denial barred her from commencing an action with the Court.
Precedent case law, culminating in the Divisional Court’s decision in Do v. Guarantee Insurance Co., 2015 ONSC 1891, wherein the Court upheld a long line of cases, when it concluded that the insurer’s denial of catastrophic impairment status is not a denial of a benefit, and only when a specific benefit has been denied does the limitation period begin to run.
The motion judge in this case distinguished Do on the basis that the insurer’s denial in this matter, did deny benefits because the insurer used additional language to stipulate that the denial of catastrophic impairment status prevented the Plaintiff from qualifying for increased benefits only available to catastrophically impaired claimants
A three judge panel of the Ontario Court of Appeal led by Justice Robert Sharpe, allowed the Plaintiff’s appeal. The Court found that there was no difference between the denial in the case before it and the denial in Do, as both denials dealt with the designation of catastrophic impairment status, and not specific benefits claimed. The additional language used by the insurer in this cases did not alter the nature of the denial.