Insurance - Auto - Limitations. Tagoe v. The Personal Insurance Company
In Tagoe v. The Personal Insurance Company (Div Court, 2023) the Divisional Court considered the limitation issue of 'discoverability' although here in a SABS context where the insurer denied benefits "before the appellant was eligible for those benefits", perhaps in an effort to commence running of the limitation period while the insured is unsuspecting of it's effect:
 On this issue, the adjudicator said this in her reconsideration decision:
 The [appellant] submits that the Tribunal made an error of law by allegedly failing to apply the Court of Appeal’s decision in Tomec and address the argument relating to discoverability and prematurity of the denial in its decision, such that the [appellant] was denied procedural fairness pursuant to Rule 18.2(a). There was no other discussion of Tomec. The appellant submits that the adjudicator erred in law in failing to follow Tomec, which addressed a like situation. In Tomec, the Court of Appeal held that a limitation period, without discoverability, created an absurd result because it effectively barred the appellant in that case from claiming benefits before the appellant was eligible for those benefits. The Court of Appeal underscored the purpose of the SABS, to maximize benefits for victims of motor vehicle accidents, and concluded that the limitation period was subject to discoverability.
 I disagree. Discoverability and prematurity of a denial were addressed in the decision. For instance, paragraph 34 outlines the applicant’s arguments with respect to pre-emptive denial, and paragraph 35 goes on to outline my position on premature benefit claims:
…there is a considerable body of case law that deals with premature benefit claims that are denied pre-emptively by an insurer. I find that a benefit can be denied by an insurer pre-emptively and that the use of the phrase “you do not qualify” would be found to be acceptable under the Schedule.
 The respondent insurer argues that the unequivocal denial of May 2016 began the limitation period with respect to the subsequent claim for income replacement benefits even though the appellant had gone back to work the day after the accident. The respondent insurer relies on part of the initial request to the insurer, where the appellant claimed that he had a substantial inability to work. The respondent insurer submits that the appellant having so claimed, the denial of income replacement benefits in May 2016 created the dispute that had to be addressed in two years.
 I disagree with the respondent’s position. The appellant did not qualify for income replacement in May 2016 and did not apply for it. I cannot distinguish this case from Tomec. The appellant was not required to apply for income replacement benefits before he was eligible for them. The adjudicator erred in law by failing to apply the doctrine of discoverability.