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Recent Divisional Court Ruling Another Blow To Injury Victims Rights

Kelly + Singh Lawyers LLP > Personal Injury  > Recent Divisional Court Ruling Another Blow To Injury Victims Rights

Recent Divisional Court Ruling Another Blow To Injury Victims Rights

Div Court Ruling Deals Major Blow To Catastrophically Injured

In a recent Divisional Court ruling of Tomec v. Economical Mutual Insurance Company, the Panel has held that a limitation period expires for certain benefits that accident benefits claimants are entitled to even before they meet the requirements to be entitled to those benefits.

In the case Ms. Tomec had applied for attendant care and housekeeping benefits from her own insurer after she was seriously injured in a car accident in September of 2008. Under the legislation in effect at that time, an accident victim is only entitled to these types of benefits for the first two years after an accident – unless they are deemed to be catastrophically impaired. If deemed catastrophic the entitlement to ongoing attendant care benefits and housekeeping benefits after two years is based on need.[1]

The very purpose of a catastrophic impairment designation is to ensure that those who are most seriously injured in a car accident receive ongoing treatment and care. One can imagine that many catastrophically injured accident victims would in fact require a lifetime of care. This category would include individuals who, for example, have been rendered quadriplegic or paraplegic as a result of an accident; have suffered very serious brain injuries; or have lost limbs or lost complete use of limbs. It should also be kept in mind that at its core a primary purpose of Statutory Accident Benefits legislation is supposed to be consumer protection, such that the legislation is meant to protect accident victims.

Ms. Tomec received and qualified for attendant care benefits and housekeeping benefits right up to the end of the two-year benefit period for those not yet deemed catastrophic.

On August 10, 2010 an assessor sent a request to the insurer on Ms. Tomec’s behalf to evaluate whether she might meet the requirements to be deemed catastrophic. The insurer sent a letter to Ms. Tomec stating that Ms. Tomec was not entitled to any further attendant care benefits or housekeeping benefits beyond 104 weeks “unless you have been determined to have sustained a catastrophic impairmentshould you disagree with our assessment of your claim and wish to dispute, mediation must be commenced within 2 years from your receipt of this letter

In May 2014, Ms. Tomec’s treating orthopedic surgeon indicated that as a result of the injuries sustained from the 2008 motor vehicle accident, damage to the soft tissues around her shoulder joint have resulted in permanent and untreatable loss of movement. An assessment for catastrophic impairment was conducted on August and September of 2015 in which a physiatrist concluded that Ms. Tomec surpassed the threshold to be deemed catastrophic.

The insurer accepted that Ms. Tomec was now catastrophically impaired as a result of the 2008 accident.  However, they denied Ms. Tomec any entitlement to ongoing attendant care or housekeeping benefits despite the catastrophic designation on the basis that their letter stating the law, should be interpreted as a denial of those benefits in 2010. The court unfortunately accepted this position and ruled that a limitation deadline for such benefits are a “hard” limitation and agreed that the insurer’s letter was a “denial” letter.

This interpretation begs the question – how can a letter which simply states the law, and indicated that Ms. Tomec had not met the legal requirements to be entitled to further benefits be construed as a denial letter when Ms. Tomec, not having been declared catastrophic at that point – never applied for the benefits?  Indeed, why would Ms. Tomec start legal proceedings in 2010 for benefits she would not legally qualify for at that time?

The wording of the legislation is clear that a denial must be of a benefit claimed. Ms. Tomec could not have been denied a benefit she never claimed. However, in this case the Divisional Court Panel made no distinction between attendant care and housekeeping benefits one can claim and is entitled to in the first 104 weeks, and those benefits one is entitled to after that time – which entitlement is based on entirely different criteria, i.e. being deemed catastrophic.

Rather than appreciate that the legislation at its core serves to protect consumers, the Panel in this case favored the rights of the insurer by presuming that an intention of the legislature was to “provide for a reasonable period, after which an insurer’s obligation would be discharged, whether or not meritorious claims may be discovered later“. This, despite the fact that it has been well established in earlier cases that there is no limitation period associated with a catastrophic designation, since it is a designation and not a benefit.[2]  The court has in effect deprived Ms. Tomec and other similarly situated persons access to a lifetime of substantial attendant care and housekeeping benefits promised in the policy that they paid for.

As it stands and unless successfully overturned on appeal, this case is unfortunately another major blow to the rights of those most seriously injured in car accidents.


[1] It should be noted that for accidents after June 1, 2016, the regulation for accident benefits has changed substantially.  Contact us for more information.

[2] See for example Machaj v. RBC General Insurance Company, 2016 ONCA 257.; and The Guarantee Company v. Dong Do et. al., 2015 ONSC 1891.


Want to learn more about Accident Benefits? Check out our other blogs on this topic:

Are Accident Victims Getting A Fair Hearing Before The LAT?

The Truth About Fraud Allegations In Personal Injury Claims

Auto Insurance Industry Reaps Profits As Accident Victims Pay The Price Of Reforms

Car Insurance System Failing According To Former Head Of WSIB

There’s Nothing Fair About Ontario’s “Fair Auto Insurance Plan” For Accident Victims

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