Court of Appeal Confirms Insured is Not Limited to 1 Application for Catastrophic Impairment

The Ontario Court of Appeal recently confirmed an insured’s right to re-apply for catastrophic impairment where there has been a material change in circumstances. In 2003, Co-Operators denied the insured’s application for catastrophic impairment. The denial was not disputed within the 2 year limitation period set out in section 40(4) of the SABS. Six years later, the insured re-applied for catastrophic impairment. Co-Operators rejected the 2nd application on the basis of the 2003 denial and the insured’s failure to dispute same. On appeal, Co-operators conceded an insured’s right to re-apply under another catastrophic criteria but argued she was barred from re-applying under the same category relied upon in the 2003 determination. The Court unanimously rejected Co-Operator’s position and concluded that to deny an insured’s right to re-apply for catastrophic impairment where that person’s injuries become catastrophic over time would result in unfairness.

• McLinden v. Payne, 2010 ONSC 6868
• McLinden v. Payne, 2011 ONCA 439