Canada: A Further Re-Application For Benefits Does Not Restart The Limitation Period

Last Updated: April 22 2015
Article by Leanne A. Zawadzki

Blake v. Dominion of Canada General Insurance Company (2015 ONCA 165 (CanLII)) is a recent decision of the Ontario Court of Appeal which discusses a number of issues pertinent to the advancement of a claim for Statutory Accident Benefits as well as trial procedure in general.

The Blake decision was an Appeal from the trial decision dismissing Ms. Blake's claim for caregiver benefits and extra-contractual damages. 

Following a 10-day trial, the trial judge dismissed Ms. Blake's claim, held that her claim was statute-barred, and ruled that, in any event, she had not established her entitlement to caregiver benefits beyond the initial 104-week eligibility period. In addition, the trial judge dismissed Ms. Blake's claims for damages for breach of the contractual duty of good faith, aggravated damages, and mental distress.

On Appeal, the Applicant, Ms. Blake raised four grounds.  She submitted that the trial judge erred in (1) finding that her claim was statute barred, (2) refusing to read all the evidence she proffered at trial, (3) holding that she failed to meet her evidentiary burden in relation to entitlement to the caregiver benefit and by applying the wrong legal causation test and (4) dismissing her claims for extra-contractual damages.

The Court of Appeal however dismissed her appeal and ordered costs payable by Ms. Blake.


The facts of this case are briefly as follows. Ms. Blake submitted an Application for Accident Benefits on December 30, 2002. Dominion paid Ms. Blake caregiver benefits until her entitlement to the benefit was eventually terminated.  Dominion subsequently sent Ms. Blake an Explanation of Benefits (OCF-9) advising her that she no longer qualified for caregiver benefits effective January 31, 2004.

Ms. Blake did not seek Mediation with respect to this denial and throughout 2004 and early 2005, submitted three more applications for caregiver benefits as well as expenses. 

On November 26, 2004, Dominion sent another OCF-9 denying Ms. Blake's November 2004 Application for caregiver expenses which led Ms. Blake, through her Counsel, to file an Application for Mediation dated December 23, 2004, with the Financial Services Commission of Ontario.

Dominion issued a further OCF-9 on January 16, 2005 addressing Ms. Blake's claim for caregiver benefits for the period from November 12, 2004 until January 11, 2005, which stated:

Please be advised effective Jan 31 2004, your caregiving benefit was reduced to $0.00.... We have enclosed a blank OCF-17 and OCF-3 for your review. If you wish to dispute the denial of your benefits please complete the enclosed OCF-17 and OCF-3 and return it to our offices

The Mediation was thereafter held on March 10, 2005. The parties settled part of the dispute concerning Ms. Blake's Applications for caregiver benefits. Dominion agreed to pay her caregiver expenses for the period of November 12, 2004 to January 11, 2005, which they had previously approved in error.

By an OCF-9 dated April 22, 2005, Dominion also advised Ms. Blake that they would pay her caregiver expenses in the amount of $5,200.00 for the period from January 2003 until January 2004.

As to Ms. Blake's claim for caregiver expenses incurred after January 2004, Dominion's position was explained in its March 12, 2005 OCF-9 as follows:

As per the Mediation which occurred on March 10, 2005, the Dominion of Canada General Insurance Company has agreed to pay the following expenses:


4) caregiving expenses: $398.88 (inclusive of interest)**

**Please be advised, we acknowledge an error in our judgement in approving your caregiving expenses for the period of November 12 2004 to January 11 2005. In good faith we will pay for your expenses as agreed upon during the Mediation of March 10 2005. However we must note that during this period you were not entitled to a caregiving benefit.

In relation to the supporting medical information on file, we will honor your reasonable caregiving expenses for the period of November 18 2002 to January 31 2004.

These matters then stood for over a year until July 4, 2006 when Ms. Blake's Counsel wrote to Dominion concerning her entitlement to further caregiver benefits.  Further correspondence was exchanged between the parties, leading to further submissions of expenses and a further failed Mediation.

The last letter sent by Dominion on August 1, 2006 advised Ms. Blake's Counsel that they were unable to respond further to the claims for caregiver benefits as they had previously issued a stoppage of the caregiver benefit in January 2004.

Ms. Blake thereafter issued a Statement of Claim on May 30, 2007.

Statute Barred

With respect to the issue of the claim being statute barred, the Insurance Act and the Statutory Accident Benefits Schedule require a Claimant to commence a court proceeding within two years after the Insurer's refusal to pay the benefit or amount claimed. The Insurer's refusal to pay the benefit is what triggers the limitation period. 

At trial, the trial judge held that on January 14, 2004, Dominion had informed Ms. Blake that it would not pay her caregiver benefits, thereby triggering the running of the limitation period. As Ms. Blake did not commence her action until over two years later, on May 30, 2007, her claim was statute-barred.

Ms. Blake submitted that the trial judge erred in reaching that conclusion.

Ms. Blake submitted that in late 2004 and early 2005, she filed with Dominion three further applications for caregiver benefits which were further denied by Dominion and led to Ms. Blake applying again for Mediation with respect to her claim for caregiver benefits, which Mediation was held in March 2005.   As such, Ms. Blake submitted that Dominion did not make a clear and unequivocal refusal to pay caregiver benefits until August 1, 2006, when she applied again for caregiver benefits and was denied. 

Furthermore, Ms. Blake submitted that by agreeing at Mediation to pay her some post-January 2004 caregiver benefits, Dominion negated its January 2004 refusal to pay benefits, with the result that the limitation period did not start to run until its latest August 1, 2006 denial of her Application for benefits. Ms. Blake therefore argued that she had commenced her action within the two year limitation period.

The Court of Appeal disagreed. 

The Court of Appeal noted that Financial Services Commission of Ontario decisions have held that the resumption of payment of benefits by an Insurer after an initial denial of benefits negates the denial previously issued. However, in the present case, even if Dominion's mistaken agreement at the March 10, 2005 Mediation to pay Ms. Blake caregiver benefits for a period of time following the January 2004 stoppage of benefits "re-set the limitation clock", that agreement was followed immediately by a clear and equivocal repetition by Dominion, in its March 12, 2005 OCF-9 of its original position that caregiver benefits had ended on January 31, 2004.

As a result, Ms. Blake issued her Statement of Claim more than two years after Dominion's March 12, 2005, communication of its refusal to pay benefits.  Therefore, her action would remain statute-barred.

The Court of Appeal further held that the submission of new applications for caregiver benefits following a clear refusal by the Insurer does not re-start the limitation clock.  The Court held that:

Where an insurer has denied statutory accident benefits, the claimant's remedy is to seek recourse for the termination of benefits within the limitation period, not to submit further applications for benefits.


The decision in Blake v. Dominion is interesting and informative on a number of other fronts and with respect to the other areas of appeal advanced by Ms. Blake. Specifically with respect to the commencement of a limitation period, the case reaffirms that a clear and unequivocal denial of a claim for accident benefits will trigger the limitation period and this cannot be circumvented by submitting a further claim for the same benefit. 

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Leanne A. Zawadzki
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