Ontario Insurance Commission
Neutral Citation: 1993 ONICDRG 79
File No. A-000854
BETWEEN:
NAZRUR RAHMAN
Applicant
and
CO-OPERATORS GENERAL INSURANCE COMPANY
Insurer
DECISION on PRELIMINARY ISSUE
The Applicant, Nazrur Rahman, was injured in a motor vehicle accident on August 27, 1990. He applied for and received accident benefits from the Insurer payable under Ontario Regulation 672 (the "No-Fault Benefits Schedule"), enacted under the Insurance Act, R.S.O. 1990, c. I.8. Weekly Income benefits were paid until June 22, 1991, when they were terminated. Mediation was unsuccessful in resolving the dispute between the Applicant and the Insurer, and the Applicant applied for arbitration under the Insurance Act.
The issue in this hearing on a preliminary issue is:
May the Applicant proceed to an arbitration hearing of this case?
The Applicant also claims his expenses incurred in the hearing.
Result:
The Applicant commenced his arbitration proceeding beyond the time-limit prescribed by the Insurance Act; he may not proceed to a hearing.
The Applicant is not entitled to his expenses incurred in respect to the arbitration.
Hearing:
The hearing was held in North York, on November 17, 1993, before me, K. Julaine Palmer, arbitrator. I received further submissions by both counsel with respect to the application of section 129 of the Insurance Act on November 29, 1993.
Present at the Hearing:
Applicant:
Nazrur Rahman
Applicant's Representative:
Sam B.M. Sahoy Barrister and Solicitor
Insurer's Representatives:
Stephen M. Malach Barrister and Solicitor
Judi Slauson
Evidence and Findings:
The Applicant admits that on June 20, 1991, he received a hand-delivered notice from the Insurer informing him that his weekly income benefits would terminate, effective June 22, 1991.
Mr. Rahman applied for mediation of his dispute with the Insurer in the fall of 1991. The mediation was not successful in resolving the dispute.
On July 8, 1993, the Ontario Insurance Commission received an Application for Appointment of an Arbitrator from Mr. Rahman, dated the same day. The Commission mailed a copy of the application to the Insurer for its response. The Insurer responded on August 16, 1993 and noted that the application had been brought more than two years after the termination of Mr. Rahman's weekly income benefits.
Section 281(5) of the Insurance Act provides as follows:
(5) A proceeding in a court or an arbitration proceeding in respect of no-fault benefits must be commenced within two years after the insurer's refusal to pay the benefit claimed or within such longer period as may be provided in the No-Fault Benefits Schedule.
Time-limits are also dealt with in section 26 of the No-Fault Benefits Schedule:
- A mediation proceeding under section 242b [now s.280] of the Insurance Act in respect of benefits under this Schedule must be commenced within two years from the insurer's refusal to pay the amount claimed in the application for no-fault benefits or, if the person has attended school or accepted, or returned to, an occupation or employment, as permitted by section 16, within two years of the insurer's refusal to pay further benefits. O. Reg. 273/90, s. 26.
The Insurer contends that an arbitrator has no discretion under the Insurance Act or the No-Fault Benefits Schedule to accept this application for arbitration because the proceeding was commenced more than "two years after the insurer's refusal to pay the benefit claimed". The Insurer further submits that section 129 of the Insurance Act, the "relief from forfeiture" section, is of no assistance to Mr. Rahman, because this is not a case of imperfect compliance with a matter or thing required to be done but a complete omission or non-compliance with a time-limit within which to commence a proceeding. Section 129 of the Insurance Act reads:
- Where there has been imperfect compliance with a statutory condition as to the proof of loss to be given by the insured or other matter or thing required to be done or omitted by the insured with respect to the loss and a consequent forfeiture or avoidance of the insurance in whole or in part and the court considers it inequitable that the insurance should be forfeited or avoided on that ground, the court may relieve against the forfeiture or avoidance on such terms as it considers just.
Counsel for the Insurer referred to the decision of our Court of Appeal in National Juice Company v. Dominion Insurance, 1977 CanLII 1375 (ON CA), 18 O.R. (2d) 10, (1978) I.L.R. 1-935. In that case, the court held that the power to relieve under the relief from forfeiture section was not "sufficiently broad to relieve the claimant from non-compliance with a time-limit within which to commence action."
Mr. Sahoy, on behalf of the Applicant, submitted that the Response by the Insurer had not been served on the Applicant within the time set out in section 11.1 of the Dispute Resolution Practice Code (14 days) and that, accordingly, the Insurer's Response should be struck out. The Applicant's counsel also argued that I had a discretion "by necessary implication" to extend the time-limit for the Applicant to commence the proceeding. He further submitted that by the rule of interpretation known as "ejusdem generis", section 129 of the Insurance Act would be applicable to the situation in this case, where it uses the words ..."or other matter or thing required to be done."
The Applicant offered no explanation whatsoever for his failure to commence the proceeding within two years of the refusal of the benefit claimed.
In reply, the Insurer argued that under the provisions of section 42.3 of the Dispute Resolution Practice Code arbitrators have discretion to extend the times set out in the Code for serving notices, filing reports or documents, etc.
42.3 The Director or arbitrator, as the case may be, may, upon such terms as he or she considers advisable, extend or abridge the time set out in this Code for doing any act, serving any notice, filing any report, document or paper or holding any proceeding.
The Insurer's representative submitted that he wrote to the Commission on August 6, 1993, the day he received the file from the Insurer, seeking a short delay for filing his Response and stating he was agreeable to any date set for a pre-hearing discussion. The Response was actually filed on August 16, 1993 by facsimile.
I find no provision in the statute or the regulation which would confer on me the discretion to extend the time-limit for commencing the arbitration proceeding in this case. I find that the Insurer denied the claim on June 20, 1991 with an effective date of June 22, 1991. I find that the Application for Appointment of an Arbitrator was not filed within two years of the denial of the claim by the Insurer.
The Applicant's counsel raised no objection to the slight delay in filing of the Insurer's Response until the hearing date, despite two pre-hearing discussions which preceded the hearing. In such circumstances, he might well be found to have waived any objection to the delay. However, if required, I would exercise my discretion under section 42.3 of the Dispute Resolution Practice Code to accept the Insurer's Response on the date it was filed. Section 42.3 is of no assistance to the Applicant on the preliminary issue because it concerns only time-limits set out in the Code, not the Insurance Act or the No-Fault Benefits Schedule.
Expenses and Insurer's Assessment:
An award for expenses to the Applicant may be made under section 282(11) of the Insurance Act, which provides as follows:
The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.
The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.
In this case, no explanation was given of any reason for the delay of more than two years in submitting an application for arbitration. I decline to exercise my discretion in favour of the Applicant in this case.
Order:
The Applicant commenced his arbitration proceeding beyond the time-limit prescribed by the Insurance Act; he may not proceed to a hearing.
The Applicant is not entitled to his expenses incurred in respect to the arbitration.
December 21, 1993
K. Julaine Palmer Arbitrator
Date