Canadian Underwriter

COVID-19 limitations freeze doesn’t count as time required to tell insurer about lawsuit

August 8, 2022   by David Gambrill

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Ontario’s freeze of limitation periods during the COVID-19 pandemic shouldn’t be counted as a time when insureds must declare their intention of making a claim against an insurer, Ontario’s Licence Appeal Tribunal has ruled in an auto accident benefits case.

In Tamayo v. Travelers, Inima Tamayo was injured in a motor vehicle accident on Mar. 24, 2017. She made a claim against Travelers Insurance for income replacement benefits, which the insurer denied on May 25, 2018.

Tamayo served notice to the insurer on Dec. 9, 2021, that she intended to challenge the denial. But the insurer said she exceeded the two-year limitations period for suing her insurer.

The LAT found her Dec. 9, 2021, request exceeded the limitations period by eight days, but nonetheless granted her request for an extension, finding the extra time was not excessive.

Travelers objected, saying Tamayo did not demonstrate any intention of proceeding with a claim within the two-year limit. Among its submissions, the insurer asked the LAT to find the province’s 183-day freeze on two-year limitation periods during COVID-19 should count as time Tamayo had to demonstrate her intention of making a claim.

“[Travelers Insurance] asked me to consider the limitation period freeze in determining the reasonableness of [Tamayo’s] extension request,” LAT adjudicator Craig Mazerolle wrote in a decision released last week. “I do not accept this line of reasoning.

“Section 2 of the Limitation Periods regulation was an emergency measure meant, in part, to assist the legal profession’s handling of the COVID-19 pandemic. To ask the tribunal to count this time in its determination of the reasonableness of a limitation period extension would amount to asking the tribunal to disregard the freeze.

“In essence, this regulation removed the requirement for the applicant to take steps to pursue her application during the early months of the pandemic, and it would be unreasonable to consider this period as additional time at her disposal.”

Travelers denied Tamayo’s IRB benefit application in a letter dated May 25, 2018. However, Tamayo argued the deemed arrival of this letter did not take place until June 1, 2018. That meant the two-year period from the time of the denial letter ran to June 1, 2020.

The LAT then factored in the 183-day suspension of limitation periods due to Ontario court closures related to the early onset of the COVID-19 pandemic. “Specifically, limitation periods were suspended between Mar. 16 and Sept. 14, 2020, i.e., 183 days,” Mazerolle wrote. “As such, I find the application for contesting the denial of the IRB was due to be filed on Dec. 1, 2020.”

That put Tamayo’s Dec. 9 filing date eight days over the limit, the LAT found.

However, in requesting an extension, she highlighted a fax that a former legal representative sent to one of her treating specialists dated on Nov. 12, 2020. “This fax was sent before the limitation period ended, and it asked for her medical file to assist in preparing her tribunal application,” the LAT adjudicator wrote.

Traveler’s took the position that a request for medical records should not be taken as evidence a legal challenge is intended. It noted people request their medical records all the time, and not necessarily because they plan to pursue a legal challenge.

Mazerolle agreed the language used in the Nov. 12 fax was sloppy. The fax to the medical specialist said: “We are preparing an Application for an Injured Person to mediate our client’s medical file.” But even if the use of the term “mediate” was not ideal, it nevertheless spelled out an intention to use the medical records to pursue a claim within the two-year limitation period, ending on Dec. 1, the adjudicator ruled.


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