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September 27, 2011

Change in circumstances permits multiple applications for determination of catastrophic impairment

In McLinden v. Payne (2011 ONCA 439), the Ontario Court of Appeal considered whether s. 40(4) of the Statutory Accident Benefits Schedule precludes a person from making more than one application for a determination that he or she suffered a catastrophic impairment.

The appellant was injured in a motor vehicle accident in April 2001. In 2003, the appellant applied for a determination of catastrophic impairment, which the insurer denied in 2006. Pursuant to s. 40(4) of the Statutory Accident Benefits Schedule, together with s. 281.1(1) of the Insurance Act, the appellant had two years from the date of the insurer's denial to dispute the determination.

In 2009, the appellant brought forward a second application for a determination of catastrophic impairment. Co-operators General Insurance Company, the statutory accident benefits insurer, refused to even consider the second application on the grounds that the appellant was statute-barred from disputing the initial determination made in 2006. The appellant then moved to amend her Statement of Claim to seek a declaration from the court that her injuries were catastrophic.

Both the Ontario Superior Court of Justice and Ontario Court of Appeal agreed that s. 40(4) does not preclude multiple applications provided that there has been a material change in the condition of applicant. If there is no such change, a further application is not permitted as it would amount to a reconsideration of the earlier decision. So too would leave to amend the Statement of Claim be impermissible, unless evidence of a material change in circumstances is presented to the court.


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