The Tomec Decision

Did you know that if you’re injured in a motor vehicle accident in Ontario, you’re entitled to Statutory Accident Benefits (SABS) regardless of who was at fault?

For non-catastrophic injuries, there’s a limit on how long you can receive those benefits. The amount and type of benefits you’re entitled to and the limitations change if your condition qualifies as catastrophic impairment.

Of course, qualifying for SABS with either type of injury is subject to many rules, regulations, and limitations. And when insurers deny claims, especially for catastrophic injuries, the burden on the injured party can be heavy.

In one such case, the Court of Appeal ruled in favor of the injured party. The details of the Tomec decision and its impact on accident benefits claims is important to understanding your own claim.

Issues Related to the Case

In September 2008, Sotira Tomec was struck by a motor vehicle as a pedestrian. She applied for and received housekeeping and attendant care benefits from Economical Insurance for her injuries. Because she was not considered catastrophically injured, those benefits were only available to her for 104 weeks, from the date of the accident.

Economical advised Ms. Tomec in August 2010 that her housekeeping and attendant care benefits would stop in September 2010 as per the 104-week limitation. In that letter, Economical stated that should she want to dispute the assessment of her claim, she would have to commence an action or dispute within two years of receipt of the letter, by September 2012.

Although Ms. Tomec was not considered catastrophically injured at the time she received the letter, her injuries worsened over the following years. By May 2015, Ms. Tomec’s doctor qualified her injuries as catastrophic. In November of the same year, Economical accepted that diagnosis but refused to pay housekeeping and attendant care benefits.

Their refusal to pay was based on a law which stipulates that claimants who wish to dispute claims must bring their dispute forward within two years. Economical stated that, if Ms. Tomec had wished to dispute the denial of her claim(s), she should have done so by September 2012, as per the two-year limitation.

The Vice-Chair of the License Appeal Tribunal (“LAT”) agreed with Economical and the application for judicial review was dismissed by a three-judge panel of the Divisional Court. They both agreed that the doctrine of discoverability didn’t apply to the two-year limitation on disputing denied claims. Ms. Tomec was therefore barred from pursuing her claim. However, the Court of Appeal didn’t agree with this rationale and allowed her to appeal.

Court’s Decision on the Case

One of the most important factors in this case when it reached the Ontario Court of Appeal had to do with the doctrine of discoverability. This doctrine holds that the clock on limitations doesn’t start running until the material facts of the case have been discovered by the person who has initiated the lawsuit. In Tomec v. Economical Mutual Insurance Company, the Court had to decide whether that doctrine applied to the limitation period under s. 281.1(1) of the Insurance Act and s. 51(1) of the Statutory Accident Benefits Schedule (SABS).

The Court of Appeal overturned the former rulings that were in favour of Economical on the grounds that a hard limitation on the two-year time limit to take a dispute to the LAT would lead to an “absurd” result. A limitation period cannot begin until the claimant discovers that they even have a claim.

How This Decision Will Impact Your Accident Benefits Claim

A hard limitation on the two-year time limit for claim disputes would stop a claimant from claiming benefits before discovering that they’re eligible for such claim. In addition to that, the Court spoke to someone who hadn’t applied for any benefits before discovering a catastrophic injury.

For Ms. Tomec, that meant that the decisions of the LAT and the Divisional Court were set aside. The ruling was that her limitation period had not expired, and she was thus entitled to housekeeping and attendant care benefits for her catastrophic injury.

This important decision has lasting implications for limitation periods as viewed by the LAT. The case was the first to determine that the two-year limitation period starts when there is a denial of a benefit and, at the same time, a denial cannot occur until there is an entitlement to that benefit under the doctrine of discoverability.

In terms of your accident benefits, if you’ve been denied a benefit under similar circumstances or you’ve discovered catastrophic injury years after an accident, you may be entitled to a great deal of benefits and compensation. Take, for example, that under the old SABS, overdue payments are subject to compounded interest at a rate of 2% per month. That could lead to the insurer having to fund payments totaling in the millions.

Do You Need Help with a Claims Dispute?

The Tomec decision is an important decision regarding limitation periods and the obligations of your insurance company. For people who discovered catastrophic injury years after an accident, and who have been denied a claim citing time limitations, the ruling could mean that they’re indeed entitled to significant benefits and compensation.

It’s not enough to take a denial from your insurance company for what it is, especially with your well-being at stake. Instead, you need to consult with a lawyer who understands the implication of the Tomec decision as it pertains to your own case.

Call Sharma Law today to discuss the details of your dispute, and we’ll determine whether you’re within your right to pursue further action.

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