Neutral Citation: 1995 ONICDRG 36
File No. A-011628
ONTARIO INSURANCE COMMISSION
BETWEEN:
JOANNE FOSTER
Applicant
and
ROYAL INSURANCE COMPANY OF CANADA
Insurer
DECISION ON PRELIMINARY ISSUE
Issues:
The Applicant, Joanne Foster, was injured in a motor vehicle accident on July 5, 1990. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. Weekly benefits were terminated by the Insurer on November 23, 1991. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The preliminary issue to be decided in this hearing is:
- May Mrs. Foster proceed to arbitration to claim weekly benefits arising out of the accident of July 5, 1990?
Result:
- Mrs. Foster may not proceed to arbitration, as her claim for weekly benefits arising out of the accident of July 5, 1990 has been brought outside the time limits prescribed in the Insurance Act and the Schedule.
Hearing:
The hearing on the preliminary issue was held in Peterborough on March 23, 1995 before me, K. Julaine Palmer, arbitrator.
Present at the Hearing:
Applicant:
Joanne Foster
Applicant's Representative:
Robert McGillen Barrister and Solicitor
Insurer's Representative:
Stanley C. Tessis Barrister and Solicitor
Insurer's Officer:
Jamie Pollock
Joanne Foster was the only witness. The parties filed an Agreed Statement of Fact and two other exhibits. The authorities cited by the parties are set out at Schedule A to this decision.
The essential facts in this case are succinctly set out in the first 11 paragraphs of the Agreed Statement of Fact:
The Applicant was injured in a motor vehicle accident on July 5, 1990.
The Applicant applied for and received weekly income benefits from the Insurer payable pursuant to the Statutory Accident Benefits Schedule.
The Applicant was paid weekly income benefits arising from the accident of July 5, 1990, until November 23, 1991.
On October 25, 1991, the insured was involved in a second motor vehicle accident. As a result of this accident she applied for and received weekly income benefits pursuant to the Statutory Accident Benefits Schedule.
On November 25, 1991, an Assessment of Claim by Insurer dated November 22, 1991, was hand delivered to the Applicant by the Insurer's adjuster, Dave Aldus.
The Assessment of Claim by Insurer dated November 22, 1991, stated that the Insurer paid the amount of $185.00 per week for the period July 15, 1990, to November 23, 1991. Under the heading "Explanation", it was indicated that the insured's doctor, Dr. Kerin, was of the opinion that the Applicant could return to light duty employment as a result of the injuries sustained in the accident of July 5, 1990. Attached to the Assessment of Claim by Insurer was the brief note from Dr. Kerin dated September 25, 1991, which indicated the following:
"Intensive course of rehabilitation has taken place with good results -- patient now at phase where light duties employment should be attempted."
The Applicant received the Assessment of Claim by Insurer on November 25, 1991.
The Applicant applied for mediation by way of Ontario Automobile Insurance Application for Appointment of a Mediator dated June 16, 1994.
The mediation was conducted on September 28, 1994.
The report of the mediator was issued on September 28, 1994.
The Applicant applied for arbitration pursuant to an Ontario Automobile Insurance Application for Appointment of an Arbitrator dated October 1, 1994.
Joanne Foster testified at the hearing on the preliminary issue. Mrs. Foster agreed that when she received the Assessment of Claim form on November 25, 1991, she read it. She testified that she is 47 years old and has a grade 8 education. Mrs. Foster admitted that she reads and writes English. Her work experience includes employment as a housekeeper, newspaper inserter and deliverer, cook and cleaner, running the circulation aspect of a small weekly newspaper, delivering racks and seeds for a seed company and floral supplies to craft shops and garden centres. She also has worked with her husband buying houses, renovating and selling them.
Mrs. Foster admitted that if she had read the Assessment of Claim form, dated November 22, 1991, she would have known that it pertained to the July 5, 1990 motor vehicle accident. She also admitted that she later received a further Assessment of Claim form, dated August 11, 1992.
Mrs. Foster also admitted that when the adjuster delivered the November 22, 1991 Assessment of Claim form, he referred to the fact that the claim number for her benefit cheques changed after the second accident.
Findings
No one suggests in this case that the Insurer has caused Mrs. Foster, in any way, to delay applying for mediation. At the time Mrs. Foster applied for mediation, in June 1994, almost four years had passed since her first accident; 32 months had passed since her second accident. The Insurer had ceased paying all weekly benefits under section 13 of the Schedule on August 29, 1992, about 22 months before the application for mediation.
Section 26 of the Schedule was amended by Ontario Regulation 779/93, section 5. That section now reads as follows:
- --(1) A mediation proceeding under section 280 of the Insurance Act or an arbitration or court proceeding under section 281 of the Act in respect of benefits under this Regulation must be commenced within two years from the insurer's refusal to pay the amount claimed in the application for statutory accident 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.
(2) Despite subsection (1), an arbitration or court proceeding under section 281 of the Insurance Act may be commenced within 90 days after the mediator reports to the parties under subsection 280(8) of the Act.
I accept the Insurer's argument that section 26(2) has no application to the facts before me, because it contemplates a situation where mediation has been commenced in time, but an application for arbitration would be too late according to section 281(5) of the Act because of the duration of the mediation procedure.
In this case, the Applicant does not state that her failure to mediate this case within the time limits set out in the legislation results from any actions or information received from the Insurer.
In my view, the only distinguishing feature of Mrs. Foster's claim results from the fact that Mrs. Foster was the unfortunate victim of two motor vehicle accidents. Subsequent to the second accident, the Insurer terminated weekly benefits with respect to the first accident. In so doing, it relied on the opinion of Mrs. Foster's family doctor of September 25, 1991 that she was "now at phase where light duties employment should be attempted". That opinion was given prior to the second accident. Mrs. Foster, perhaps not unsurprisingly, tended to view the weekly benefits which she received as "all being the same", although she did testify that she had more problems after the second accident.
The Assessment of Claim form that was delivered to Mrs. Foster in November 1991 is written in plain, simple language. Mrs. Foster did not claim that she could not understand the form. Almost 31 months passed after she received this document before Mrs. Foster applied for mediation at the Ontario Insurance Commission in June 1994; 22 months had passed since the weekly benefits after the second accident had stopped.
I find no provision in the statute or the regulation which confers upon me any discretion to extend the time limit for commencing the arbitration in this case. I find that the Application for Appointment of an Arbitrator with respect to claims arising out of Mrs. Foster's claim for weekly benefits as a result of the accident of July 5, 1990, has not been filed within two years of the denial of the claim by the Insurer in November 1991 and, hence, is outside the time limits set out in section 281(5) of the Insurance Act and section 26 of the Schedule.
No evidence suggests that Mrs. Foster made more than a single application for weekly benefits arising from the accident of July 5, 1990. I make no finding in this decision of the effect of any subsequent application for weekly benefits by Joanne Foster arising out of the accident of July 5, 1990.
This hearing is scheduled to resume before me in Peterborough on May 8, 1995. The issues in dispute at that hearing remain as set out in Arbitrator Seife's pre-hearing letter of January 11, 1995.
Expenses
The issue with respect to expenses on this hearing of the preliminary issue is reserved for argument and decision following the hearing of the main issue.
Order:
Mrs. Foster may not arbitrate her claim for weekly benefits arising out of the accident of July 5, 1990.
April 19, 1995
K. Julaine Palmer Arbitrator
Date
SCHEDULE A
Alireza Fakhri and Coachman Insurance Company, March 17, 1994, OIC File No. A-000330
Nazrur Rahman and Co-operators General Insurance Company, December 21, 1993, OIC File No, A-000854
Emilia Zeppieri and Royal Insurance Company of Canada, February 17, 1994, OIC File No. A-005237
Emilia Zeppieri and Royal Insurance Company of Canada, December 22, 1994, OIC File No. P-005237
Tibletz Zere and Royal Insurance Company of Canada, April 22, 1994, OIC File No. A-001827
Borlido et al. v. United States Fidelity and Guaranty Company, [1988] I.L.R. 1-2318 (S.C.)
Eason v. State Farm Mutual Automobile Insurance Co., [1992] 1-2834 (Ont. Ct. Gen. Div.)
Gillis v. Bourgard et al. (1983), 1983 CanLII 1858 (ON CA), 41 O.R. (2d) 107 (C.A.)
Travellers Indemnity Co. of Canada v. Maracle (1991), 1991 CanLII 58 (SCC), 80 D.L.R. (4th) 652 (S.C.C.)