{"id":1031,"date":"2020-04-28T20:10:27","date_gmt":"2020-04-29T00:10:27","guid":{"rendered":"http:\/\/limitations.ca\/?p=1031"},"modified":"2020-04-28T21:15:45","modified_gmt":"2020-04-29T01:15:45","slug":"ontario-court-of-appeal-holds-s-511-of-the-sabs-is-subject-to-discoverability","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=1031","title":{"rendered":"Ontario: Court of Appeal holds s. 51(1) of the SABS is subject to discoverability"},"content":{"rendered":"

Is the limitation period in (the repealed) s. 281.1(1) of the Insurance Act <\/em><\/a>and s. 51(1) of the Statutory Accident Benefits Schedule <\/em><\/a>subject to discoverability? Yes, held the Court of Appeal in Tomec v. Economical Mutual Insurance Company<\/em><\/a>.<\/p>\n

Section 51(1) provided that \u201cA mediation proceeding or evaluation under section 280 or 280.1 or a court proceeding or arbitration under section 281 shall be commenced within two years after the insurer\u2019s refusal to pay the benefit claimed.\u201d<\/p>\n

Economical argued that the refusal to pay a benefit is a specific event that isn’t tied to the cause of action and therefore isn’t subject to discoverability. The court rejected this argument and found that the refusal to pay a benefit is an element of the cause of action:<\/p>\n

[<\/a>35]\u00a0\u00a0 \u00a0\u00a0\u00a0I would not give effect to this argument. It is contrary to the admonition from the Supreme Court in\u00a0Pioneer<\/em>\u00a0at para. 36 that:<\/p>\n

In determining whether a limitation period runs from the accrual of a cause of action or knowledge of the injury, such that discoverability applies, substance, not form, is to prevail: even where the statute does not explicitly state that the limitation period runs from \u2018the accrual of the cause of action\u2019, discoverability will apply if it is evident that the operation of a limitation period is, in substance, conditioned upon accrual of a cause of action or knowledge of an injury.<\/div>\n

[<\/a>36]\u00a0\u00a0 \u00a0\u00a0\u00a0The refusal to pay a benefit is clearly tied to the appellant\u2019s cause of action. Absent a refusal to pay the benefit sought, there cannot be a claim made for mediation or an evaluation. Thus, the refusal to pay a benefit and the ability to make a claim are inextricably intertwined in the cause of action. The refusal cannot be stripped out of the cause of action and treated as if it is independent from it.<\/p>\n

[<\/a>37]\u00a0\u00a0 \u00a0\u00a0\u00a0This distinguishes the case at bar from the situations in\u00a0Ryan<\/em>\u00a0and\u00a0Levesque<\/em>. In both those cases, the courts were considering limitation periods that were wholly independent from the cause of action. The commencement of the limitation period was tied to the date of the deceased\u2019s death. In contrast, the applicable limitation period in this case is tied to the accrual of the cause of action.<\/div>\n<\/blockquote>\n

My only quibble is with the court\u2019s discussion of the cause of action. What does it mean to be \u201ctied\u201d to a cause of action? A cause of action arises from certain factual elements (for example, the five elements of negligent misrepresentation, or the one element of a breach of contract). It\u2019s imprecise to discuss a fact being \u201cinextricably intertwined in the cause of action\u201d; it\u2019s either an element of the cause of action or it isn\u2019t.<\/p>\n

The decisions also has a rare example of an absurdity analysis in the context of limitation provision interpretation:<\/p>\n

[<\/a>46]\u00a0\u00a0 \u00a0\u00a0\u00a0Statutes are to be interpreted in a manner that does not lead to absurd results. An interpretation is absurd if it \u201cleads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment\u201d:\u00a0Rizzo & Rizzo Shoes Ltd. (Re)<\/em>,\u00a0<\/i>1998 CanLII 837 (SCC)<\/a>,\u00a0[1998] 1 S.C.R. 27<\/span>,\u00a036 O.R. (3d) 418<\/span>, at para.\u00a027<\/a><\/span>.<\/p>\n

[<\/a>47]\u00a0\u00a0 \u00a0\u00a0\u00a0Here, the decisions below thrust the appellant into a Kafkaesque regulatory regime. A hard limitation period would bar the appellant from claiming enhanced benefits, before she was even eligible for those benefits. However, if the appellant had not claimed\u00a0any<\/u>\u00a0benefits until she obtained CAT status in 2015, she would not be caught by the limitation period:\u00a0Machaj v. RBC General Insurance Company<\/em><\/i>,\u00a02016 ONCA 257<\/span><\/a>, at para.\u00a06<\/a><\/span>. Alternatively, if the appellant had coincidentally obtained CAT status before 2012, the hard limitation period would not bar her claim for enhanced benefits.<\/div>\n
[<\/a>48]\u00a0\u00a0 \u00a0\u00a0\u00a0This outcome is absurd. There is no principled reason for barring the appellant\u2019s claim for enhanced benefits in the first scenario but allowing the claim in the second and third scenario. To do so would effectively penalize the appellant for accessing benefits she is statutorily entitled to, or for developing CAT status too late.<\/div>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Is the limitation period in (the repealed) s. 281.1(1) of the Insurance Act and s. 51(1) of the Statutory Accident Benefits Schedule subject to discoverability? Yes, held the Court of Appeal in Tomec v. Economical Mutual Insurance Company. Section 51(1) provided that \u201cA mediation proceeding or evaluation under section 280 or 280.1 or a court … Continue reading Ontario: Court of Appeal holds s. 51(1) of the SABS is subject to discoverability<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[589,87,62,43,528,38,531,588],"class_list":["post-1031","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-absurdity","tag-discoverability","tag-discoverability-doctrine","tag-ontario-court-of-appeal","tag-ontario-statutory-accident-benefits-schedule","tag-sabs","tag-statutory-accident-benefits-schedule-s-51","tag-statutory-interpretation"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1031","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1031"}],"version-history":[{"count":2,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1031\/revisions"}],"predecessor-version":[{"id":1045,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1031\/revisions\/1045"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1031"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1031"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1031"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}