Limitation Period – Was there a Proper Refusal?
In order to assert the limitation period, the Insurer bears the onus of establishing that it has issued a clear and unequivocal refusal of benefits, which sets out the Applicant’s right to engage the dispute resolution process in a clear and straightforward manner. In addition to the lack of denial, there was no accompanying letter setting out the process by which the Applicant could dispute the Insurer’s denial of benefits. The documents sent by Allstate on October 30, 2002 did not provide a clear and unequivocal denial of non-earner benefits and did not comply with section 49 of the Schedule. Any subsequent OCF-9s provided by the Insurer to the Applicant that are included in the Insurer’s Document Brief make no mention of non-earner benefits.
The Insurer has failed to meet the onus of establishing, on balance of probabilities, that it issued a clear and unequivocal refusal of non-earner benefits. As such, I find that the limitation period regarding non-earner benefits never began to run.