News Update – November 19, 2020

Tomec Absurdity Creates a 2nd Fresh NEB Claim For One Applicant

Tomec Strikes Again! We have referenced more than once the Tribunal’s positioning regarding IRB and the doctrine of “discoverability” following Tomec. In a decision with far reaching implications, the Tribunal has confirmed that an Applicant can be entitled to two distinct NEB claims arising from the same accident. In this instance, an original NEB claim based upon physical impairments that had long since been terminated, was replaced by a “fresh” NEB claim based upon psychological impairments that seem not to have surfaced until more than 4 years post accident, well more than 2 years post termination.

While you will have to read it to believe it, it is noteworthy that the Tribunal seems to have completely disregarded the Schedule requirement for NEB of “a complete inability to carry on a normal life as a result of and within 104 weeks after the accident”.

Absurdity Reigns Supreme – In 19-008722 v Wawanesa, the Tribunal considered what was in essence an Applicant’s second distinct claim for NEB arising from a 2013 accident. While this may strike most as an absurd pursuit, the Tribunal however found the absurdity to be elsewhere. Injured in a November 2013 accident, the Applicant sought and received NEB based upon her physical injuries through to January 2016, at which time they were terminated. While there was an application made to FSCO, ultimately the mediation set for June 2016 was terminated and the matter was not pursued further. It was not until July 2018 that the Applicant submitted a further OCF-3, confirming that there was a deterioration in her psychological condition that now rendered her as again being completely unable to carry on a normal life.

The Applicant argued that her second claim for NEBs was not “discovered” until June 2018, and as such her “eligibility for the NEB had re-accrued or accrued anew.” The Respondent for their part argued that given the Applicant had already received NEB, “it is disingenuous to argue that she did not ‘discover’ her claim for NEBs when she already received the benefit, a practice the Tribunal has dismissed in the context of income replacement benefits.” To that end, the Respondent relied upon a decision by the adjudicator of record, wherein he had stated “there is no indication that the Tomec court overturned its decision in Bonilla, where it declined to import the discoverability rule to income replacement benefits and found that an insured’s loss is crystallized when a notice of termination is received.” The Respondent also argued that the Applicant was “attempting to re-apply for a terminated benefit beyond the two-year limitation period, a tactic which the Court of Appeal has rejected.”

The Tribunal found that this “NEB issue is the exact type of ‘absurd’ situation contemplated by the Court of Appeal that would make the doctrine of discoverability applicable here.” As a result, it accepted that the “entitlement to NEB for a second time arose, or ‘accrued’, only after her psychological condition had deteriorated”. The delayed psychological deterioration resulted in a “fresh NEB claim”, disagreeing with the Respondent that this was in essence re-applying for the same benefit. The psychological deterioration, that now rendered her CAT, “accrued over time and was only ‘discovered’ on or before July 19, 2018…(and) The lack of a ‘re-apply’ provision in the legislation cannot be held against [the Applicant] because this blind spot is what prompted the Tomec Court to find that discoverability applies to accident benefits claims.”

Largely relying upon the same rationale, the Tribunal doubles down and indicates as well that all four relevant factors to be considered in applying the LAT Act exemption weighed in the Applicant’s favour. It is difficult to reconcile many of the assumptions relied upon by the Tribunal, including the bona fide intention to appeal within limitation. The Tribunal here suggested that the Applicant indeed “had a bona fide intention to appeal”, while at the same time indicating “it was clearly impossible for her to have an intention to appeal.”

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