Making the Case

Insights, opinions and thoughts from the Singer Kwinter legal team.


Shane H. Katz
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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 Machaj v. RBC General Insurance Company, 2016 ONCA 257, the plaintiff Zofia Machaj, appealed an order dismissing her action for catastrophic injury benefits under the Statutory Accident Benefits Schedule.  The motion judge concluded that Ms. Machaj’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 Machaj distinguished Do on the basis that the insurer’s denial in Machaj did deny benefits because the insurer used additional language to stipulate that the denial of catastrophic impairment status prevented Machaj 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 Ms. Machaj’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 Machaj did not alter the nature of the denial.

The content of this article or blog posting is of a general nature and does not constitute legal advice. It is not intended to be a full or complete analysis of the topic. Before applying the concepts or any content of this article or blog it is imperative that you consult your legal advisor.

Neither the author of this article or Singer Kwinter can accept any responsibility for financial loss nor gain of any nature should the reader not take advice from their legal advisor.

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