The insurer’s inadvertent failure to comply with the time limits in the Statutory Accident Benefits Schedule, Ontario Regulation 403/96, was a procedural error. The insurer was not precluded from challenging the insured’s assertion that she was catastrophically injured. The Court dismissed the insured’s application for partial summary judgment.

Gray v. Pilot Insurance Co., [2006] O.J. No. 2638, Ontario Superior Court of Justice

The insured was injured in a motor vehicle accident. A neurologist authored a report in August 2003 which stated that the insured was catastrophically impaired. Following receipt of the report, the insurer advised the insured that it would require her to undergo an assessment at a designated assessment center (“DAC”) to determine whether she was “catastrophically injured” within the meaning of the Insurance Act.

In December 2003, the insurer received the insured’s Application for Determination of Catastrophic Impairment (“ADCI”). Pursuant to section 40(2) of the Statutory Accident Benefits Schedule, Ontario Regulation 403/96 (SABS), the insurer had to respond within 30 days of receiving the ADCI. By oversight, the insurer only became aware of the insured’s ADCI in April 2004 and failed to respond to the ADCI within the required time frame.

The Court noted that the SABS was silent as to the consequences of the insurer’s failure to comply with the timelines set out therein. The Court held that the insurer’s failure to comply with the timelines was a procedural error that, in the circumstances, had not created any prejudice to the insured. The Court, in the absence of any statutory direction, rejected the notion that the catastrophic impairment designation followed automatically from the insurer’s non-compliance with the timelines set out in the SABS. The Court dismissed the insured’s application for partial summary judgment.

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