



COURT OF APPEAL FOR ONTARIO

CITATION: Machaj v. RBC General Insurance Company, 2016 ONCA
    257

DATE: 20160408

DOCKET: C60814

Sharpe, Juriansz and Roberts JJ.A.

BETWEEN

Zofia Machaj

Plaintiff (Appellant)

and

RBC General Insurance Company

Defendant (Respondent)

Sandi J. Smith, for the appellant

Harry P. Brown, for the respondent

Heard: April 5, 2016

On appeal from the order of Justice A.C.R. Whitten of the
    Superior Court of Justice, dated July 3, 2015.

ENDORSEMENT

[1]

This is an appeal from an order dismissing an action for catastrophic
    injury Statutory Accident Benefits on the ground that it is statute barred by
    virtue of the
Insurance Act
, R.S.0. 1990, c. I-8, s. 281.1(1). The
    motion judge found that the appellants claim was barred because a mediation
    proceeding had not been commenced within two years after the insurers refusal
    to pay the benefits claimed.

[2]

The central issue is whether motion judge erred by concluding that the
    decision of the Divisional Court in
Do v. Guarantee Insurance Co
.,
    2015 ONSC 1891 did not apply.

[3]

Do
upheld a consistent line of arbitral decisions holding that
    an insurers denial of the existence of the status of catastrophic impairment
    does not in itself amount to a denial of a benefit and that is it is only where
    a specific benefit is denied that the limitation period commences to run
    against the claimant. The Divisional Court accepted the proposition that
    catastrophic impairment status is not itself a benefit, but rather a designation
    that entitles a claimant to request extended medical, rehabilitation and/or
    attendant care benefits and other expenses.

[4]

In this case, the appellant completed an OFC-19 form claim seeking a
    catastrophic determination. No claim was made for specific benefits. The respondent
    insurer denied the request for catastrophic impairment status. Its OFC-9
    Explanation of Benefits gave the following reason for the denial: Please note
    that the assessors have formed the consensus opinion that you have not
    sustained a Catastrophic Impairment
and therefore you do not qualify for the
    increased benefits
 [Emphasis added]. Part 4 of the respondents OFC-9 forms
    list of specific benefits was left blank.

[5]

The respondent submits, and the motion judge found, that by adding the
    words and therefore you do not qualify for the increased benefits, the
    insurer did deny benefits within the meaning of s. 281.1(1). The insurers
    denial in
Do
did not contain that language and the motion judge
    concluded that
Do
was therefore distinguishable.

[6]

We respectfully disagree with that conclusion. In our view, there is no
    difference in substance between the denial that was made in the case at bar and
    the denial that was made in
Do
. We agree with the appellant that the
    line of authority culminating in
Do
establishes that there is a clear
    distinction to be drawn between the claim for determination of catastrophic
    status and a claim for the specific benefits to which an injured person is
    entitled if found to have suffered a catastrophic injury.
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, by adding the words and you therefore you do
    not qualify for the increased benefits, the respondent insurer was doing
    nothing more than telling the appellant that she lacked status to claim
    increased benefits. The additional words 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 period.

[7]

Accordingly we allow the appeal, and set aside the motion judges order
    dismissing the claim as being statute barred. The appellant is entitled to her
    costs of this appeal fixed at $7500, inclusive of disbursements and applicable
    taxes.

Robert J. Sharpe
    J.A.

R.G. Juriansz
    J.A.

L.B. Roberts
    J.A.


