This blog is a footnote to a related blog,
Catastrophic Impairment is a Label, Not a Benefit, posted
April 21, 2015, in which I discussed the Divisional Court decision
in Do v. Guarantee ("Do"), which held that the
two-year limitation period governing the denial of a benefit had no
application when the issue in dispute related to the catastrophic
impairment designation. In Do, Mr. Do was allowed to
commence an arbitration proceeding two years and nine months after
The Guarantee Company first refused his application for
catastrophic impairment. His arbitration was not statute
A recent decision from the Ontario Court of Appeal has put to
rest any lingering doubt that the Divisional Court decision would
stand. In Machaj v. RBC General Insurance Company 2016
ONCA 257, in a brief seven-paragraph endorsement, the Court of
Appeal reversed the Order of Justice A.C.R. Whitten of the Superior
Court of Justice from July of 2015. Justice Whitten had
distinguished Do and did not apply it. As such,
while not a direct appeal from Do, the Court of Appeal was
essentially asked to review and consider the merits of Do,
ultimately adding its own stamp of approval to the Divisional Court
decision. As stated by the Court of Appeal:
Do stands for the proposition that the two-year
limitation period only applies to claims for specific benefits, and
not to a claim for a determination of catastrophic injury status.
In our opinion, (the additional words added by the insurer)
"did not convert what was, in substance, a denial of a
catastrophic determination into a denial of the specific benefits
that would trigger the commencement of the two-year limitation
The Court of Appeal determined that Do was good law and
should not have been distinguished.
The ramification of this recent Court of Appeal decision
emphasizes the need, if it wasn't already apparent after
Do, to review all denials pertaining to a claimant's
catastrophic impairment status, even those denied two or more years
in the past, as it is still possible, assuming there is the
requisite supporting evidence, to advance a dispute concerning that
label. A delayed dispute will not be statute barred.
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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