Fridays With Rogers Partners

At our muffin meeting this morning, we discussed a controversial Court of Appeal decision addressing whether discoverability can apply to the limitation period in claims for statutory accident benefits. We also went over a Superior Court decision involving the doctrine of misnomer.

Discoverability in SABS Claims

Matthew Umbrio addressed the recent decision of the Court of Appeal in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882.

The claimant was involved in an accident in September 2008. She was cut off of attendant care benefits and housekeeping expenses in September 2010 because she had not sustained a catastrophic impairment.

Subsequently, however, the plaintiff applied for a catastrophic impairment designation. In November 2015, the insurer accepted that the claimant was catastrophically impaired.

The insurer did not agree to pay attendant care benefits and housekeeping expenses for the time period between September 2010 and November 2015, or at any point going forward, because the claimant was beyond the statutory two year limitation period.

The Licence Appeal Tribunal and the Divisional Court agreed with the insurer’s position, stating that the limitation period is a hard limitation period and that discoverability does not apply.

The Court of Appeal disagreed, indicating it is unreasonable to construe the relevant limitation period as a hard limitation. The Court of Appeal stated that the limitation period is subject to the rule of discoverability because it is directly tied to the cause of action a claimant can assert when denied benefits.

The Court of Appeal said that a hard limitation period is contrary to the purposes of the SABS. Further, a hard limitation period in these circumstances would lead to absurd results and is not consistent with the policy rationales that underlie limitation periods.

Test for Misnomer

Ankita Abraham discussed the decision in Tschirhart v. Grand River Hospital, 2019 ONSC 6650.  The plaintiff sought to substitute an emergency room physician in place of a “Dr. Doe” defendant more than 4.5 years after the events in issue.

The plaintiff stated that he was unable to identify the emergency room physician because the doctor’s name was illegible in the hospital records. The plaintiff argued that he did not know the identity of the doctor until an examination for discovery of the defendant hospital.

The court went over the applicable test for misnomer. In particular, the test is whether the “litigating finger” is pointed at the proposed defendant in the Statement of Claim. That is, would a person having knowledge of the facts be aware of the true identity of the misnamed party by reading the Statement of Claim?

If so, the proper defendant will be substituted into the action, subject to the court’s residual discretion to refuse the substitution for reasons including whether the proposed defendant was misled or would be unduly prejudiced.

In the case at hand, Master McGraw permitted the amendment. In the initial Statement of Claim, the plaintiff identified the “Dr. Doe” defendant with sufficient specificity. Master McGraw stated that a reasonable person reviewing the Statement of Claim and having knowledge of the facts would know that the “litigating finger” was pointed at the emergency room physician.

Further, Master McGraw held that the physician would not be prejudiced because he and his insurer were aware of the claim for quite some time.