Neutral Citation: 1997 ONICDRG 187
Appeal P96-00084
OFFICE OF THE DIRECTOR OF ARBITRATIONS
CAPILDEO BISSOON
Appellant
and
PILOT INSURANCE COMPANY
Respondent
Before:
R. Draper, Director's Delegate
Counsel:
Robert A. Robinson (for Capildeo Bissoon)
Grant E. Black (for Pilot Insurance Company)
APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The appeal is dismissed and the arbitration order dated March 7, 1997, is confirmed.
No appeal expenses are payable.
October 8, 1997
David R. Draper Director’s Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
This is an appeal by Capildeo Bissoon from an arbitration order dated November 6, 1996. The arbitrator held that although Mr. Bissoon was an insured person under a policy issued by Pilot Insurance Company ("Pilot"), he cannot proceed with his claim for accident benefits because he failed to submit an application to Pilot within two years of his accident.
II. BACKGROUND
Mr. Bissoon insured his automobile through MCR Insurance Brokers Ltd. ("MCR"). For the period August 1992 to August 1993, it was covered by a policy issued by Pilot. On January 28, 1993, however, Mr. Bissoon contacted Mr. Wayne Hawtin, vice-president of MCR, and told him to cancel all coverages except comprehensive. The dispute involves the effective date of the changes.
According to Mr. Bissoon, the changes were not to take effect until January 31, 1993, just after he was scheduled to leave the country. Mr. Hawtin claimed they were effective immediately. The timing is critical because Mr. Bissoon was injured on January 29, 1993, the day after he spoke to Mr. Hawtin. He was standing next to his car, reaching into the backseat for his briefcase, when he was hit by another vehicle.
Three days after the accident, Mr. Bissoon phoned Mr. Hawtin from his hospital bed to tell him about the accident. The two men also disagree about this conversation. At the arbitration hearing, Mr. Bissoon testified that Mr. Hawtin never mentioned any coverage problems. In contrast, Mr. Hawtin claimed that Mr. Bissoon asked him to alter the date of the policy changes so he would be insured for the accident.
On February 9, 1993, Pilot wrote to Mr. Bissoon, acknowledging notice of the accident and sending him the accident benefits application package. However, on March 5, 1993, before receiving anything from Mr. Bissoon, Pilot wrote to him and his then lawyers, Godfrey & Day, stating that all coverages were cancelled the day before his accident, except comprehensive. The letter states:
In view of the foregoing, you have no coverage under the above noted policy number for the accident of January 29th, 1993.
If you have any questions, please do not hesitate to call me.
This letter is the focus of the appeal. The question is whether it should be treated as a refusal by Pilot, preventing it from relying on Mr. Bissoon's failure to submit a formal application for accident benefits.
After some further contact between Mr. Bissoon and Mr. Hawtin, Pilot sent Mr. Bissoon's new lawyers, Diamond & Diamond, a letter confirming its position. The letter, dated April 13, 1993, states that "the claim forms were submitted on the basis of good faith as we were not aware on this date that the coverages had been deleted from the subject vehicle."
Mr. Bissoon did not submit an application for accident benefits to Pilot. Instead, he applied to the H.B. Group, the insurer of the vehicle that hit him. He was asked to assign his statutory accident benefits rights to Coseco Insurance, which he did (The precise relationship between Coseco Insurance and the H.B. Group was not made clear). As part of the agreement, Mr. Bissoon undertook to "co-operate with Coseco Insurance except in a pecuniary way, in a furtherance of any action or proceeding or in the prosecution of any appeal against Pilot Insurance and/or their Insurance broker/agent." The H.B. Group paid him accident benefits of more than $78,000, but nothing was done to recover the payments from Pilot until he applied for mediation.
Mr. Bissoon's application for mediation is dated March 2, 1995, and signed by his current lawyer, Robert A. Robinson. It is based on Pilot's letter of March 5, 1993, described above, treating it as a refusal to pay benefits. The dates suggest that the application was made to comply with the two-year limitation periods in section 281(5) of the [Insurance Act