Financial Services Commission
Commission des services financiers de l’Ontario
Neutral Citation: 1999 ONFSCDRS 133
Appeal P99-00018
OFFICE OF THE DIRECTOR OF ARBITRATIONS
DONNA C. HART
Appellant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Respondent
Before: David R. Draper, Director's Delegate
Appearances: Donna C. Hart, representing herself Meredith J. Donohue (for Allstate Insurance)
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 orders dated January 22, 1999 and March 11, 1999 are confirmed.
No appeal expenses are payable.
July 13, 1999
David R. Draper Director's Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
This is an appeal by Donna C. Hart from two arbitration decisions, dated January 22, 1999 and March 11, 1999. In the first decision, the arbitrator held that Mrs. Hart cannot proceed with her claim for weekly benefits because her applications for mediation and arbitration were filed more than two years after the insurer's refusal. In the second decision, the arbitrator held that because Mrs. Hart failed to provide details of her other claims, there was nothing left to arbitrate.
II. PRELIMINARY ISSUES
Mrs. Hart's Notice of Appeal, appealing both arbitration decisions, was received by the Commission on April 6, 1999. Allstate argued that the appeal of the first decision should not be allowed because it was not filed within the 30-day time limit established in s.283(2) of the Insurance Act and Rule 48 of the Dispute Resolution Practice Code. However, both provisions allow the Director (or her delegate) to extend the appeal period. After reviewing the record, I was satisfied that the appeal should be allowed to proceed. Mrs. Hart wrote to the Commission before the appeal period expired, indicating that she wanted to challenge the decision. The delay was not long and was attributable to her lack of familiarity with the process.
Allstate also argued that the appeal should be dismissed because it does not raise any questions of law. Although the Notice of Appeal is difficult to understand, I was not prepared to reject it. My decision was based largely on Mrs. Hart's lack of representation and her obvious difficulty framing her objections to the arbitrator's decisions. An early date was set for the hearing, with written submissions being optional to reduce costs.
III. ANALYSIS
My role on appeal is limited. It is to review the arbitrator's decision to determine if it is compromised by any error of law. For reasons that follow, I find no such error.
The practical effect of this decision is that Mrs. Hart cannot proceed with her claim for weekly benefits – it is out of time. She also cannot pursue any other benefits in this proceeding. However, as the arbitrator states in her second decision, Mrs. Hart can pursue her claims, other than weekly benefits, by filing a further, timely application for mediation. Of course, she will need to provide details of the benefits she is claiming.
A. The Legislation
The date of Mrs. Hart's accident means that her benefits are determined under O.Reg. 776/93, as amended, the Statutory Accident Benefits Schedule - Accidents after December 31, 1993 and before November 1, 1996 ("the SABS-1994"). This legislation provides for various benefits, including weekly benefits, supplementary medical benefits and rehabilitation benefits. Because of her situation at the time of the accident, the weekly benefits applicable to Mrs. Hart are Other Disability Benefits ("ODBs"). ODBs are payable at $185 per week, subject to deductions for some types of collateral benefits.
The legislation creates two time limits – one for making the claim and the second for challenging the insurer's decision to deny the claim. The insured person must apply for accident benefits within 90 days of receiving the application forms, although the application can be made later if he or she has "a reasonable excuse." Once the insurer denies the claim, the insured person must apply for arbitration within two years of the refusal. However, if the application for mediation is made within two years of the refusal, the insured person can apply for arbitration within 90 days of the Report of Mediator.1
B. Background
The arbitrator's factual findings are not challenged on appeal. I repeat them only to make this decision more readable.
Mrs. Hart was injured in an automobile accident on August 16, 1995. She was not working at the time, describing herself as a homemaker or housekeeper. As a result of earlier medical problems, she was receiving long-term disability benefits from Bell Canada ($763.87/month), benefits from the Workers' Compensation Board ($149/month) and Canada Pension Plan disability benefits ($758/month).
There is no issue about the initial notification required by s.59(1) of