Court of Appeal Decision is a Win for Automobile Injury Victims

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Last month, the Supreme Court of Canada dismissed the Economical Mutual Insurance Company’s application to appeal the Ontario Court of Appeal’s decision in Tomec v. Economical Mutual Insurance Company. Law Times recently explained the implications of the decision, which has attracted praise from personal injury and car accident lawyers.

Tomec, the plaintiff in the case, suffered non-catastrophic injuries in an automobile accident and sought benefits under Ontario’s Statutory Accident Benefits Schedule (SABS). She was awarded two years of housekeeping and attendant care benefits. However, her condition deteriorated over time, and after five years her injuries were deemed to be catastrophic. When she sought additional, ongoing benefits, Economical denied her application.

The lower courts agreed with Economical that Tomec’s application came outside the hard statute. Her legal team argued that a standard of discoverability should be applied to catastrophic injury benefits, rather than a strict time limit. The Court of Appeal agreed, delivering a win for car accident lawyers and their plaintiffs.

“Insurers are not going to be able to put some of their most seriously injured insured in this impossible catch-22 position,” one of the plaintiff’s lawyers told Law Times. “The Court of Appeal has confirmed that discoverability applies to this question. There’s not going to be someone who is told that their injuries took too long to develop to a point where you meet catastrophic impairment and as a result of that time, is not entitled to the higher level of benefits that catastrophic usually unlocks.”

The Court of Appeal’s ruling, and the Supreme Court’s refusal to grant an additional appeal, will benefit a small number of accident victims whose injuries slowly deteriorate over several years. The ruling will, in theory, make it more likely that seriously injured accident victims have access to the benefits they need during their recoveries.

“The Court of Appeal accepted the fact that there was a hopeless situation,” another lawyer told Law Times. “So what they did is they imported this issue of discoverability, saying a clock can’t run until the injury is discovered. This is not a new concept. … discoverability has been out there for a long time. They said ‘Why would we not let discoverability apply in cases like this?”

If you or a member of your family has been injured in an automobile accident, contact Neinstein Personal Injury Lawyers today to schedule a free, no-obligation consultation. Our experienced car accident lawyers will assess your claim and provide guidance and advice throughout the legal process.


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Greg Neinstein, B.A. LLB., is the Managing Partner at Neinstein Personal Injury Lawyers LLP. His practice focuses on serious injury and complex insurance claims, including motor vehicle accidents, slip and fall injuries, long-term disability claims and insurance claims. Greg has extensive mediation and trial experience and has a reputation among his colleagues as a skillful negotiator.
Greg Neinstein
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