Volume. 7 Issue. 42 – November 15, 2023
This week, in ‘Court Applies Tomec’, the Court considers whether the principle of discoverability applies in a matter wherein the applicant was found by the Tribunal to be statute barred from proceeding with a claim for IRB. Then, in ‘CAT Determination Varied’, the Tribunal considers previously unavailable evidence in revisiting a prior decision that the applicant was not rendered CAT.
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Court Applies Tomec – The Applicant Tagoe, in Tagoe v. The Personal, sought an appeal to the court with respect to the finding, upheld on Reconsideration, that Tagoe was statute barred from proceeding with his claim for IRB, having failed to apply to the Tribunal within two years of the effective denial. Injured in an April 2016 MVA, Tagoe submitted an OCF-3 that confirmed he had continued to work, and The Personal sent a May 20, 2016 Explanation of Benefits (EOB) indicating that Tagoe had no initial eligibility for the income replacement benefits (IRB).
It was then not until July 2017 that Tagoe came off work, contending that the MVA related injuries contributed to his inability to work. Finally, in January 2019 Tagoe applied for IRB. In response, The Personal advised that his claim was barred by the expiry of the limitation period on May 20, 2018, relying on the Explanation of Benefits dated May 20, 2016. Tagoe applied to the Tribunal in February 2021, with the Tribunal finding that Tagoe’s claim was in fact statute barred, as the effective denial was clear and unequivocal, and that “The insurer could, as a matter of law, deny future benefits.” There were no references to the principle of discoverability as set out by the Court in Tomec.
One ground for the Reconsideration sought, was the failure of the Tribunal to consider Tomec. However, the Tribunal countered that “Discoverability and prematurity of a denial were addressed in the decision. For instance, paragraph 34 outlines the applicant’s arguments with respect to pre-emptive denial, and paragraph 35 goes on to outline my position on premature benefit claims”. However, a review of the Reconsideration reflects that there was in fact no specific reference to the doctrine of discoverability to be found.
Accordingly, one of the grounds for appeal sought by Tagoe, was that “The adjudicator erred by ignoring the discoverability doctrine, failing to follow the Court of Appeal in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 82. The appellant had gone back to work a day after the accident and did not know that he could not work until the time came in July 2017. The limitation period could not have begun to run before he became eligible for income replacement benefits.”
The Court confirmed that the Tribunal had spoken to the “premature benefits claim”, however “there was no other discussion of Tomec”, which stood for the principle that “a limitation period, without discoverability, created an absurd result because it effectively barred the appellant in that case from claiming benefits before the appellant was eligible for those benefits.” Applying this principle, the Court disagreed with The Personal that the May 2016 EOB “created the dispute”, finding that Tagoe “did not qualify for income replacement in May 2016 and did not apply for it.”
As a result, the Court could not distinguish the within case from Tomec. Tagoe “was not required to apply for income replacement benefits before he was eligible for them. The adjudicator erred in law by failing to apply the doctrine of discoverability.” Accordingly, the “appeal is allowed, the decision of the Tribunal is set aside, and the matter is remitted to the Tribunal for a new hearing, with costs to the appellant payable by the respondent insurer in the agreed amount of $7,500 all inclusive.”
CAT Determination Varied – The Applicant Rana, in 21-001456 v Coachman, sought reconsideration of the Tribunal’s decision that she was not catastrophically impaired because she had not demonstrated that she sustained three marked impairments sufficient to meet the requirements of catastrophic impairment under Criterion 8. After reviewing the evidence, the Tribunal varied the decision to find that Rana in fact meets the definition of catastrophic impairment under Criterion 8.
The Tribunal specifically considered whether there was evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the applicant, and would likely have affected the result. The original hearing took place February 13 to 17, 2023. Interestingly, Rana was subject to a series of CAT IE evaluations between February 27 and July 14, 2023. She was provided with the corresponding Executive Summary dated July 17, 2023, that concluded Rana did meet the catastrophic threshold, having been found with Class 4 Marked impairments by two assessors in the domains of ADL, Social Functioning and Adaptation.
Given the timelines, this new evidence was obviously not before the Tribunal when rendering its decision and could not have been obtained previously by Rana. Further, this new evidence “would certainly have affected my decision”. Therefore, the initial finding was varied, and Rana had demonstrated that she sustained three Marked impairments sufficient to meet the requirements of catastrophic impairment under Criterion 8
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