News Update – February 24, 2020
Tomec Absurdities – IRB Entitlement Now Open Ended?
We have the first reported case where the doctrine of discoverability as confirmed in Tomec, has been considered by the LAT.
The Tomec decision involved a plaintiff, who had not become eligible for post-104 (enhanced) ACB as she was not designated as CAT until after the 104 week mark. In the case at hand, the Tribunal has applied Tomec to a considerably late onset claim for IRB.
In 19-000069 v Economical, the Applicant, injured in a August 2013 accident was found not to have a substantial inability to perform the essential tasks of his employment because he was working full-time when he submitted his OCF-1 and OCF-3 and continued to work for three years and nine months following the accident. In the original decision, the Tribunal upheld the Respondent’s denial, with the Applicant’s claim accordingly found to be outside of the two year limitation period. Hearing its own reconsideration, the Tribunal reversed the original decision, allowing the Applicant to proceed to a hearing on the merits of the claim for IRB.
The Tribunal found that the determination of this issue ultimately turned on the Court of Appeal decision in Tomec v. Economical, not released at the time of the original decision “but is binding on the Tribunal… unless eventually overturned by the Supreme Court of Canada.” It was noted that “while the benefits in dispute in Tomec differ from the IRBs in dispute here, the basic underpinning from the Court of Appeal decision is the same (as to) whether the doctrine of discoverability applies to the limitation periods under the Act and the Schedule.”
While Tomec considered enhanced benefits under the catastrophic category, “I find the takeaway just as applicable here to [the Applicant]’s IRB claim…(putting) the applicant in…an impossible situation, where the time for claiming a benefit commences when she is ineligible to make such a claim. This is an absurd result. I agree and follow the guidance provided by Tomec, finding that it applies equally in this matter.” It was found that “at the time of his claim”, the Applicant “was not even eligible for an IRB as a result… In effect, his substantial inability to perform his essential tasks was not ‘discovered’ at this point, but rather, was ‘accrued’ over time as his impairments increased and his responsibilities at work diminished.”
“On review and with the guidance provided by Tomec, I find that [the Applicant] did not ‘discover’ his claim for IRB until his substantial inability to perform the essential tasks of his employment surfaced.” As a result, it was found that the Applicant “did not make his claim for IRB before January 16, 2018, as his impairment and eligibility for same were discovered, or accrued, over time and not immediately following the accident.”
The Tribunal appears to suggest in fact that claims for IRB are inherently “open ended”, despite the SABS stipulating that eligibility is only found in scenarios wherein a “substantial inability” is determined within 104 weeks after the accident. Has the Tribunal replaced one “absurd result” with another…can you Recon a Recon??
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