Some appellate clarity on the issue on non-earner benefit is now
emerging some two years after the confusion arising from the
appellate decision in Galdamez v. Allstate.
In Sietzema v. Economical, the Court of Appeal dismissed the
insured's appeal of the summary judgment dismissal of her claim
for non-earner benefits as statute barred by the two-year
limitation period. In its unanimous February 11, 2014 decision, the
appellate court emphasized that one of the primary purposes of the
Statutory Accident Benefits (SABS) regime is the need for the
timely submission and resolution of accident benefit disputes.
The accident occurred on November 11, 2005. An Explanation of
Benefits (OCF-9) on December 19, 2005 stated that the claimant was
not eligible for non-earner benefits as she was employed at the
time of the accident. The Appellant issued a claim for non-earner
benefits over 5 years later, on April 14, 2011, far beyond the
two-year refusal to pay limitation period.
The Appellant argued that the limitation period did not commence
as the insurer gave incorrect reasons for her ineligibility for
non-earner benefits. As a result of the insurer's error, she
did not apply for non-earner benefits when the insurer terminated
her income replacement benefits, at which time the insurer ought to
have also told her that she may be eligible for the non-earner
benefit. However, the Court of Appeal found that the insurer
provided the insured with the appropriate information to claim
benefits and correctly stated the non-earner test as it was then
understood in 2005, when it was generally assumed that employment
at the time of the accident precluded receipt of non-earner
benefits. There was also no requirement in the legislation for an
insurer to advise a claimant that they may have a right to revive a
claim that was previously denied.
The Court of Appeal applied another appellate decision,
Turner v. State Farm, wherein clear and unequivocal notice
given by the Insurer cancelling benefits is sufficient to trigger
the limitation period notwithstanding that the Insurer gives
legally incorrect reasons. If the Appellant's position was
correct then the limitation period would never begin to run.
Of note, the court appeared to give implicit approval of two
other lower court decisions on the same issue in Katanic v.
State Farm Mutual Automobile Insurance Company and Sagan
v. Dominion General Insurance; both of which are also the
subject of appeals still to be heard.
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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