Insurers Continue Success With Limitation Period Defences

Following the Court of Appeal's decisions in Sietzema v. Economical Insurance, 2014 ONCA 111 (CanLII), 118 O.R. (3d) 713 and Sagan v. Dominion of Canada General Insurance Company, 2014 ONCA 720 (CanLII), insurers have continued to see success with the use of limitation period defences on summary judgement motions throughout 2015.

In a superior court decision involving six plaintiff all of whom brought individual actions against Aviva for accidents benefits arising out of motor vehicle accidents that occurred in 2004 and 2005 were all dismissed by way of summary judgement motion by Baird J. in Straus v. Aviva, 2015 ONSC 4589. The plaintiff's argued that Aviva had failed to comply with the informational requirements pursuant to section 32(2) of the SABS by failing to provide a written description of benefits and should not be entitled to rely on the limitation period in the circumstances. Each claim can be briefly summarized as follows:

Straus

Accident occurred in 2004 Initial Disability Certificate indicated Straus did not meet criteria for NEB Explanation of Benefits sent by Aviva on December 9, 2004 indicated claimant was entitled to IRB and denied NEBs because claimant was employed at the time of the accident On February 21, 2005 Aviva sent an Explanation of Benefits denying further entitlement to IRBs Statement of Claim issued on November 1, 2011 Hanna

Accident occurred in 2004 OCF-1 indicated claimant was employed and working Disability Certificate concluded claimant was not substantially disabled from employment and NEB was not applicable On August 26, 2005 an Explanation of Benefits was sent indicating claimant not entitled to IRB based on the Disability Certificate and not eligible for NEBs because claimant was employed at the time of the accident Statement of Claim issued on August 12, 2012 Dushenko

Accident occurred in 2004 Disability Certificate of January 2005 indicated claimant not substantially disabled from working but that claimant suffered a complete inability to carry on a normal life Explanation of Benefits of February 8, 2005 indicated claimant not eligible for IRBs based on Disability Certificate and also indicated that she was not eligible for NEBs because "you must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident. There is a 26 week waiting period for this benefit" Statement of Claim issued on August 2, 2012 Messer

Accident occurred in 2005 Disability Certificate...