Ontario: It’s still a two-year limitation period for IRB claims

 

In Bonilla v. Preszler,  the appellant argued that the respondent’s termination notice for her Income Replacement Benefits was not clear and unequivocal and that the applicable limitation period was “rolling”.  This was a futile position and the Court of Appeal rejected it.

[10]      It is well established in this court’s case law that the limitation period is triggered by a single event, which is the refusal of an insurer to pay the IRB claimed: see e.g. Bonaccorso v. Optimum Insurance Company Inc., 2016 ONCA 34 (CanLII), 129 O.R. (3d) 544 and Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111 (CanLII), 118 O.R. (3d) 713. The appellant was informed on February 4, 2003 that she would not receive IRB after February 27, 2003. Even taking the later of these two dates, February 27, 2003, as the date of the refusal, the two-year limitation period expired February 27, 2005. The appellant’s action is several years late.

[11]      The appellant submits that this court’s prior cases are either distinguishable or are wrongly decided and offers several arguments in support. She submits that the limitation period covers only the amount of a benefit claimed, and not the nature of the benefit; that the cause of action for IRB is an “entitlement to indemnification”; that the amount claimed is limited to an amount accrued or crystallized, rather than future benefits; and that the common law discoverability rule applies.

[12]      We do not accept any of these arguments. In our view the operation of the limitation period under the legislation is clear and straightforward. It is well settled in the case law of this court, and it would be inappropriate for a three-judge panel of the court to overrule a prior decision of the court in any event. We note that the appellant requested, and was denied, a five-judge panel for this appeal.

Ontario: If you sue, you’ve discovered your claim

Limitations issues have a way of encouraging creative but hopeless arguments.

Take for example Richards v. Sun Life Assurance Company of Canada.  The plaintiff argued that the first clear and unequivocal denial of his benefits claim was contained in the defendant insurer’s statement of defence.  Justice Bale had none of this:

[19]           As previously noted, the plaintiff argued that the first clear and unequivocal denial of his claim was contained in Sun Life’s statement of defence. Assuming this to be the case, “clear and unequivocal denial” cannot be the applicable test, since the plaintiff would then have commenced his action prior to discovering his claim, a logically inconsistent result.

By commencing a proceeding in respect of a claim, a claimant necessarily acknowledges discovery of the claim.  It is, as Justice Bale put it, logically fraught to both assert a claim and an argument that you have yet to discover it.

Justice Bale’s decision also contains a helpful discussion of rolling limitation periods:

[25]           The plaintiff argues that a rolling limitation period applies, and that the plaintiff is only barred from claiming the disability benefits that would have been payable more than two years before the action was commenced. I disagree.

[26]           A rolling limitation period may apply to claims for periodic payments, in cases where the issue is whether certain payments to which the plaintiff is entitled have been made (e.g. payments of rent), as opposed to cases where the issue is whether the plaintiff was entitled to the periodic payments in the first place. In the former type of case, the material facts will have arisen on a periodic basis, and it will not be unfair to require a defendant to litigate those facts during the applicable limitation period following the date upon which an individual payment became due. However, in the latter type of case, the material facts will have arisen at the time that the plaintiff alleges he or she first became entitled to periodic payments, and it would be unfair to require the defendant to litigate those facts, for a potentially unlimited period of time.

[27]           In the present case, the issue is whether the plaintiff was entitled to disability benefits, at the time of his application to Sun Life, and the concept of a rolling limitation period does not apply.