OFFICE OF THE DIRECTOR OF ARBITRATIONS
Neutral Citation: 1994 ONICDRG 123
File No. P-005237
BETWEEN:
EMILIA ZEPPIERI
Applicant (Appellant)
and
ROYAL INSURANCE COMPANY OF CANADA
Insurer (Respondent)
Before:
Elisabeth Sachs Director of Arbitrations
Counsel:
Giulia F. Ahmadi (for Applicant, Appellant)
Stanley C. Tessis(for Insurer, Respondent)
APPEAL ORDER
I. NATURE OF PROCEEDINGS
By Notice of Appeal filed March 24, 1994, the applicant, Emilia Zeppieri (the appellant), appeals from the decision Senior Arbitrator Susan Naylor dated February 17, 1994 (revised February 23, 1994) which determined the appellant had not applied for arbitration within two years after Royal Insurance Company of Canada’s (the respondent) refusal to pay benefits claimed pursuant to s.281(5) of the Insurance Act, R.S.O. 1990, c.I-8, as amended (the Act).
The appellant contends the arbitrator erred in law by failing to apply the doctrine of estoppel in her favour; by finding there was no onus on the respondent to answer her counsel’s request for particulars of the termination of the appellant’s weekly income benefit; and in finding counsel was aware of the termination date throughout.
The parties made oral submissions on October 17, 1994. As arbitration proceedings were ongoing concerning issues which may have been affected by this appeal, I issued a decision by letter to the parties dated October 26, 1994 and effective on that date. The following are my reasons for the decision.
II. SUBMISSIONS & FINDINGS
(a) Appellant’s Position
The appellant argues the arbitrator was wrong in finding her counsel was aware of the date weekly benefits, which had been paid under Ontario Regulation 6721, were terminated as outlined in the respondent’s letter to the appellant dated May 6, 1991. The letter states the respondent will not pay benefits after May 31, 1991. This is the date the arbitrator found governed for the purpose of calculating the time in which the appellant could file for arbitration.
The arbitrator found as a fact based on the evidence she heard and affidavits filed, that the appellant was always aware of the respondent’s position and not only knew, but acknowledged, the termination date. The appellant retained counsel about one year later, in June 1992. Before doing so, the appellant had a number of contacts with the respondent’s representatives. While no weekly benefits were paid, supplementary medical and rehabilitation claims were honoured after May, 1991. It appears the appellant may have been somewhat confused about which benefits she was receiving. However, the arbitrator found as a fact, and there is no persuasive evidence otherwise, that the appellant understood her weekly benefits were about to end when she received the May 6 letter, and she conveyed to counsel the time period (during the month of May, 1991) when that occurred.
After she retained counsel, repeated requests were made to the respondent to reconsider its decision on the termination of weekly benefits. The evidence presented shows this demand had to be made in light of counsel’s knowledge that weekly benefits had stopped sometime in May, 1991. Although the respondent might indeed have considered reinstatement, or more accurately “reconsidered” its decision, this did not change the fact that the termination date of May 31, 1991, was relied on, as found by the arbitrator.
The appellant’s second argument is that the course of negotiation with and correspondence from the respondent, spotty and inaccurate as it may have been, lulled the appellant through her counsel, or induced her, into believing the respondent would not rely on a limitation period as a defense to any possible claim for weekly benefits for the period May, 1991 to June, 1992. This is reinforced, according to the appellant, by the respondent’s actual reinstatement of weekly benefits after June, 1992.
Much was made in argument of the knowledge of the appellant as opposed to the knowledge of her counsel, and the information sought by them from the respondent after they were retained. It matters little, given the evidence and circumstances of this case as the findings of fact, supported by the appellant’s own material, show counsel was aware for a long time which benefit had been terminated by the respondent for what reason and for what period. After reviewing the evidence, I cannot find the arbitrator misdirected herself or made an error such that the conclusion she drew based on that evidence should be set aside.
The arbitrator found the appellant and/or her counsel were aware the disputed benefits payment ended May 31, 1991. She also found the respondent did not mislead the appellant or counsel as to its position on this point nor induce them into believing a limitation period, if applicable, would not be relied on.
This case falls squarely within the parameters outlined in Calogero and The Co-operators General Insurance Company (OIC File No. P-000251, February 13, 1992). Nothing in the evidence points to an error of law or fact or a misapplication of principles by the arbitrator to justify my interfering in the result.
With respect to the issue of estoppel, it is a doctrine founded in fact. Given the facts as determined by the arbitrator she could not conclude it applied here. Despite Ms. Ahmadi’s able submissions, I also do not accept that the respondent’s unresponsiveness to continued pleas or negotiation attempts on behalf of the appellant by counsel was conduct which could reasonably lead them to believe the respondent would not insist on its strict rights in any subsequent arbitration or court action.
The appellant argues the mere stoppage of a benefits payment does not meet the requirement to establish “termination” within the meaning of s.24(8) of the Schedule, which provides for written notice to an insured person giving reasons when an amount claimed will not be paid. In this case, the arbitrator found not only was the respondent’s letter sufficient notice, an assessment of claim form later provided was, at best, duplication of that notice. The appellant argues as this form was not included with the original letter, crucial information respecting her ability to mediate, arbitrate or litigate the termination of her benefits was never provided. However, long before the limitation period expired, the appellant retained counsel and clearly relied on counsel to pursue all claims on her behalf.
In these circumstances, I cannot find the arbitrator erred in fact or in law so as to warrant the setting aside of her decision. Accordingly, the appeal is dismissed.
III. EXPENSES
While the appellant has not been successful, she raised a significant issue respecting insurers’ obligations in giving notice of termination of benefits and an important point of law about the effect of ongoing discussions or negotiations potentially leading to the waiver of a limitation period by, or estoppel which could be raised against, another party. I found the appellant’s arguments, notwithstanding the dismissal of the appeal, to be helpful and served to shorten the process.
The appellant is entitled to her expenses of the appeal relating to the preparation of the Notice of Appeal, written submissions and attendance of one counsel before me for oral submissions. If the parties are unable to agree on the particulars, I remain seized of the matter and will consider written submissions for an assessment.
IV. ORDER
The appeal from the decision on a preliminary issue of Senior Arbitrator Susan Naylor dated February 17, 1994 (revised February 23, 1994) is dismissed.
The appellant is entitled to expenses of this appeal as set out herein.
December 22, 1994
Elisabeth Sachs Director of Arbitrations
Date